Best and Best (No 2)

[2013] FamCA 854

FAMILY COURT OF AUSTRALIA

BEST & BEST (NO. 2) [2013] FamCA 854

FAMILY LAW – PRACTICE AND PROCEDURE – where the applicant sought that he be granted leave to issue subpoenas to judicial officers of the Family Court of Australia – where the matter had been remitted for hearing with respect to the issue of the father’s time with the children – consideration of sections 16 and 129 of the Evidence Act 1995 – where the applicant submits that he has the right to question the original trial judge as the author of the Reasons for Judgment as to its contents and accuracy in the same way a litigant would be entitled to question an expert who has provided a report for hearing – consideration of what evidence a judge could properly give – consideration of the relevant case law – consideration of the doctrine of res judicata and the principles of issue estoppel – where the trial judge would not be able to be asked questions concerning the contents and accuracy of the Reasons for Judgment as they are prohibited by the common law which limits the areas upon which a judge can give evidence, by s 129 of the Evidence Act, by the principles relating to issue estoppel and the principles that flow from Rice v Asplund – where leave to issue the subpoenas is refused.

FAMILY LAW – PRACTICE AND PROCEDURE – where the applicant also sought that he be granted leave to issue subpoenas to the respondent’s lawyer, her barrister and a Justice of the Peace – where the court determined that, whilst a lawyer should not knowingly cooperate with a witness giving false evidence, it is not the task of a lawyer acting for a party to act as their client’s judge to determine whether or not the evidence that their client is giving is accurate or truthful – where there is no obligation upon a person before whom an affidavit is sworn or affirmed to take steps to ensure that the material was truthful and did not contain any false or misleading information other than administering the oath or affirmation – where there is no obligation upon counsel, independently, to verify the evidence of their client – where leave to issue the subpoenas is refused.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth) ss 16, 56, 129
Australian Human Rights Commission Act 1986 (Cth)
Family Law Rules 2004 rr 15.17(2), 15.18

Hennessy v Broken Hill Pty Co Limited (1926) 38 CLR 342
Marsden v Winch (2009) 42 Fam LR 1
Rice v Asplund (1979) FLC 90-725
Zanatta v McCleary [1976] 1 NSWLR 230

APPLICANT: Mr Best

RESPONDENT: Ms Best

INDEPENDENT CHILDREN’S LAWYER: Maguire & McInerney Lawyers

FILE NUMBER: WOC 91 of 2010

DATE DELIVERED: 28 October 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 17 October 2013
and by way of written submissions

REPRESENTATION

THE APPLICANT IN PERSON: Mr Best

THE RESPONDENT IN PERSON: Ms Best

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Davies  

Orders

1. The Application for leave to issue subpoenas to the Honourable Justice Ryan, the Honourable Justice Fowler, Linda Margaret Wright, Ms F and Suzanne Christie is hereby refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 91 of 2010

Mr Best

Applicant

And

Ms Best

Respondent

And

Michael Davies

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Mr Best, (“the applicant”), seeks the court’s leave to issue a number of subpoenas to give evidence.  Two of those subpoenas are directed towards judges of this Court and three are addressed to a lawyer, a barrister and a Justice of the Peace.  The lawyer who respectively settled an affidavit sworn by the respondent, was the lawyer before whom the respondent swore the affidavit to be true as was the case with the Justice of the Peace and the barrister was counsel who read the affidavit in proceedings before the court. 

2. The substantive proceedings which relate to the parenting of the parties’ children are fixed for hearing for five (5) days commencing on 4 March 2014. 

3. The applicant requires leave of the court to issue the subpoenas because of Rule 15.17(2) and in particular Rule 15.18 of the Family Law Rules 2004 (“the Rules”).

Background

1. Ryan J made a number of orders on 3 February 2012 in contested parenting proceedings between the parties.  The effect of the orders was that the mother was to have sole parental responsibility for the children who were to spend time with the father on a defined basis, initially supervised and ultimately unsupervised.  As time passed the children were to spend more time with their father leading to overnight weekend access.  There were a number of conditions attached to the orders including a requirement that the applicant attend upon his psychiatrist at least monthly until the end of 2013.  Significantly, her Honour ordered that the applicant was not to have contact with the children other than as provided by the orders. 

2. Subsequently, the applicant brought a number of contravention applications against the mother.  These applications were heard by Rees J and Fowler J and were, on each occasion, dismissed. 

3. On 1 February 2013 the Full Court delivered its Reasons in the Appeal from the orders of Ryan J.  The appeal was allowed and the order pursuant to which the children were to spend time with the father was set aside and the issue of the father’s time with the children was remitted for re-hearing.  The other orders were largely left intact including the order that the father not contact the children other than as provided by the orders. 

4. The effect of the orders of the Full Court was that, until an order providing for the children to spend time with the applicant was made, the children were to live with the mother and there would be no contact with the father. 

5. On 22 February2013 an interim order was made providing for the children to spend supervised time with their father at a contact centre. 

6. The applicant is now agitating the remitted proceedings in relation to the time the children are to spend with him.  He also seeks to vary the orders of Ryan J on the basis that circumstances have changed since the making of those orders.  It is these proceedings that are fixed for hearing in March 2014. 

The subpoenas to the judges

1. Justice Ryan was the original trial Judge.  The applicant submits that as Ryan J is the author of a document, that is, her Honour’s Reasons for Judgment, which will be referred to in the proceedings, then he has the right to question the author of that document as to its contents and accuracy in the same way a litigant would be entitled to question an expert who has provided a report for hearing.  He submits that a judge is a compellable witness, not being an excluded person under the relevant provisions of the Evidence Act1995 (Cth) (“the Evidence Act”) and that consequently Justice Ryan will be able to give relevant evidence.

2. The applicant asserts that the factual errors that he asserts were made by her Honour  and her Honour’s acceptance of what he described as “lies” vitiate her Honour’s Reasons for Judgment which should be put entirely aside.  In order to establish those matters he seeks to examine her Honour “on the basis of procedural fairness and transparency” and that for him not to be able to test the judgment would be “an abject failure of the justice system”.  The applicant said he was unable to do so, on appeal, because he was so constrained by the court at the hearing of the appeal.

3. It is necessary to consider what evidence a judge could properly give. For evidence to be admissible it must be relevant. If it is not relevant it is inadmissible (section 56 of the Evidence Act).

4. A judge is not compellable to give evidence about proceedings in which the judge has been engaged (Hennessy v Broken Hill Pty Co Limited (1926) 38 CLR 342 at 349).

5. In Zanatta v McCleary [1976] 1 NSWLR 230 at 233 Street CJ said:

   A Judge is remote from the contest and from the parties and his subsequent statements implying error on his part or procedural irregularity have, in general, no evidentiary significance as between the parties themselves.

6. At page 239 Samuels JA said:

   Hence, in my opinion, the principle is this: A judge of a court of record cannot be compelled to testify to the considerations which led him to his decision, or to the manner in which he has exercised his judicial powers.

   The principle is founded upon grounds of policy which are obvious enough; they are expressed by Cleasby B. in the passage quoted above.  Its application does not mean that judicial determinations are shrouded from scrutiny.  Ordinarily, a judge has a duty to state the reasons for his decision and his failure to do so of itself may amount to an error of law.  Reasons are required because they would disclose error, if error exists.  And a decision which is unreasonable or unjust may imply error although its nature may not be discoverable ... So the giving of reasons protects the litigant by exposing an appealable error.  In the ordinary course protection is adequately conferred by this means, and it is hardly to be conceived that a disappointed litigant could be permitted to endeavour to extract some ground of appeal by examining the judge on his decision.  In my view it is, therefore, not open to the appellant to call the learned judge to testify to the processes by which he reached his decision.  (References omitted)

7. It can be seen that s 16 of the Evidence Act alters the common law in that it permits a judge to be compelled to give evidence by leave of the court. Nevertheless, the principles set out in Zanatta v McCleary remain a useful guide as to what relevant evidence a judge might give in relation to the proceedings over which they presided.

8. Section 129 of the Evidence Act provides:

   (1) Evidence of the reasons for a decision made by a person who is:

   (a)      a judge in an Australian or overseas proceeding; or

   (b)an arbitrator in respect of a dispute that has been submitted to the person, or to the person and one or more other persons, for arbitration; or

   the deliberations of a person so acting in relation to such a decision, must not be given by the person, or a person who was, in relation to the proceeding or arbitration, under the direction or control of that person.

9. Section 129(3) provides that s 129(1) does not prevent the admission or use, in proceedings, of published reasons for a decision.

10. In these circumstances it is difficult to see on what basis leave could be granted. It may be, for example, that a judge could give evidence about some event that occurred during a proceeding but it is clear that the judge cannot give evidence about the process that led to their decision or their reasons for that decision. Such evidence is prohibited by s 129 of the Evidence Act and by common law principals, to the extent they continue to apply.

11. This is confirmed by the doctrine of res judicata.  Res judicata is described as:

    A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment.  A judgment in personam binds the parties and their privies, and because this is so basic it will generally be assumed in what follows.[1](Reference omitted)

    [1]Res Judicata Spencer Bower and Handley 4^th Edition paragraph 1.01

12. Where the judgment is reversed on appeal the judgment below remains conclusive until the appeal is allowed.  When an appeal is allowed the original judgment is avoided ab initio and replaced by the appeal decision which becomes the res judicata between the parties[2].  A res judicata may be an estoppel as to the entire case (cause of action estoppel) or simply as to necessary and fundamental facts determined in deciding the issues before the court (issue estoppel).  In parenting proceedings, where the interests of the child are paramount, cause of action estoppel has no place.  Issue estoppel does have a limited role to play in that fundamental facts decided by a judge that led to that parenting decision should not be re-litigated.  That does not prevent the court, in appropriate cases reconsidering the issue as to what the appropriate parenting orders should be. 

    [2] Supra paragraph 2.33

13. In Rice v Asplund (1979) FLC 90-725 Evatt CJ said:

    The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for … change is an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …

14. In Marsden v Winch (2009) 42 Fam LR 1 said at [50]:

    Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.  How is that decision to be made?  The court must look at:

    1.The past circumstances, including the reasons for decision and the evidence upon which it was based. 

    2.Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

    3.If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by its significant re-litigation.

15. The fundamental starting point for determining whether significant changes have occurred which require a court to reconsider the earlier decision are the reasons for the earlier decision itself.  That is to say the earlier decision is taken to be correct.  The court looks to see whether, having regard to the circumstances set out in that Judgment and the circumstances now found to exist, there is such a change as would justify proceeding with and, if necessary, altering the parenting orders.  Thus, the opportunity does not arise for a reconsideration of the correctness of the earlier decision itself. 

16. The rationale for all the above is that, in giving a judgment, the court is determining the parties’ rights and, frequently in proceedings under the Family Law Act, creating new rights. It is not the giving of an opinion which may or may not be accepted by others. The court’s function is actually to determine, or create, rights which it does by a determination of the factual and legal issues before it. Once so determined that determination is binding on the parties who, other than by appeal, cannot re-litigate it. Other than for the purposes of an appeal, the judge’s reason process and the existence of any error are irrelevant.

17. The applicant seeks to ask Justice Ryan about the contents and accuracy of her Honour’s Judgment. Even if leave were to be granted for Ryan J to be called as a witness she would not be able to be asked such questions as they are prohibited by the common law which limits the areas upon which a judge can give evidence, by s 129 of the Evidence Act and by the principles relating to issue estoppel and the principles that flow from Rice & Asplund.

18. It follows that the areas upon which the applicant seeks to question Ryan J cannot be the subject of evidence by her Honour and that her Honour can give no relevant evidence.

19. The applicant also relies on the Australian Human Rights Commission Act 1986 (Cth) and, in particular, Schedule 2 to that Act. Schedule 2 reproduces the International Covenant on Civil and Political Rights as it applies in Australia (see the definition of “covenant” in s 3 of that Act).

20. Article 14 to Schedule 2, save for the introductory sentence, deals with criminal cases. The introductory sentence is:

    All persons shall be equal before the courts and tribunals.

    That general statement does not require the proposed subpoena to be issued. The point is not that a judge cannot be the subject of a subpoena merely because they are a judge. Judges can be subpoenaed to give evidence as s 16 of the Evidence Act makes plain. They are thus equal before the law. Witnesses are only entitled to give relevant evidence. As discussed earlier there are restrictions on judges giving evidence in relation to matters that have been before them. Article 14 does not affect those restrictions.

21. The evidence the applicant seeks to adduce from Ryan J relates to her Honour’s decision in proceedings before the parties.  Her Honour cannot give such evidence.

22. Accordingly, leave to issue the subpoena to Justice Ryan will be refused

23. The applicant asserts that in contravention proceedings before Fowler J the Wife pleaded guilty to four charges of contravening orders.  He asserts that, notwithstanding, Fowler J dismissed the charges.  He asserts that Fowler J did not provide a written set of orders and documented set of reasons and thus denied the applicant an opportunity to appeal. 

24. The transcript of the hearing before Fowler J will reveal what occurred and the orders that were made.  It is not necessary for his Honour to give evidence to establish those matters.  As to his Honour’s reasons for doing so his Honour is precluded from giving evidence about them for the reasons set out above.

25. Leave to issue the subpoena to Fowler J will not be given.

The subpoenas to the lawyers and Justice of the Peace

1. In early 2011 Ms Linda Wright of DGB Lawyers prepared an affidavit on behalf of the respondent mother.  The applicant wishes to serve a subpoena upon Ms Wright so that she can give evidence “as to how she determined that the affidavit that she prepared was truthful in all regards and did not contain any false or misleading information”. 

2. It is not the task of a lawyer acting for a party to act as their client’s judge to determine whether or not the evidence that their client is giving is accurate or truthful.  Of course, they should not knowingly cooperate with a witness giving false evidence but that is a disciplinary matter.  The opinion of a lawyer as to whether or not their client’s evidence is truthful or accurate would necessarily be based upon the knowledge otherwise available to that person.  The submissions of the applicant, if accepted, would require all lawyers to become judges of their own client’s credibility and case and require them to usurp the role of the judge or juror as the fact finder in contested proceedings. 

3. That is not the function of a party’s lawyer.  It follows that Ms Wright can give no relevant evidence.

4. To the extent that the applicant wishes to establish that the material in the affidavit was sworn to be correct by the wife (which he seeks to do as he seeks to establish that the wife has given wilfully false evidence) that can be done by the tender of the affidavit itself.

5. On 11 June 2011 Ms F, a Justice of the Peace, administered the oath by which the affidavit, prepared by Ms Wright, was sworn by the respondent. 

6. The applicant wishes to ask Ms F how she determined that the affidavit sworn before her was truthful in all regards and did not contain any false or misleading information.

1. There is no such obligation upon a person before whom an affidavit is sworn or affirmed.  There is no reason why she therefore would have taken any steps to ensure that the material was truthful and did not contain any false or misleading information other than administering the oath or affirmation.  It would be highly unlikely if she did so.

2. Finally Ms Christie, as counsel, relied upon that affidavit in the hearing before Ryan J.  Again there is no obligation upon counsel independently to verify the evidence of their client. 

3. The subpoenas to the lawyers and the Justice of the Peace will not be issued.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 28 October 2013.

Associate: 

Date:  28 October 2013