MARTIN & MARTIN - [2014] FCCA 2838

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARTIN & MARTIN

[2014] FCCA 2838

Catchwords:
FAMILY LAW – Self-represented litigant guidelines – inability of self-represented litigant to effectively participate in adversarial trial.

FAMILY LAW – Parenting – child’s best interests ill-served by adversarial process – family violence – nature of coercive and controlling family violence – family violence as a form of terrorism – family violence best practice principles – fundamental and integral importance of family violence to the determination of children’s best interests – allegations of “brainwashing” unsupported by evidence – impact of family violence on children – views of adolescent children and weight to be given to such views when clearly expressed and independently formed based on lived experience.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60CF, 60CG, 60I, 60J, 61DA, 65DAC, 65F, 67Z, 67ZA, 67ZB, 67ZBA, 67ZBB, 67ZBB(2), 68B, 68C, 68N-68T, 69ZN, 69ZW

International Convention on the Rights of the Child
Federal Circuit Court Rules 2001
Family Violence Best Practice Principles Edition 3.1 – April 2013
Federal Proceedings (Costs) Act 1981, s.10

Re F Litigants in Person Guidelines (2001) FLC 93-072
Jones & Dunkel (1959) 101 CLR 298
Browne & Dunn (1893) 6 R 67 (HL)
Tate & Tate (2000) FLC 93-047
Powell v Alabama 287 U.S. 45 (1932)
Brewer v Williams 430 U.S. 387 (1977)
Dietrich v R [1992] HCA 57
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 A.C. 42
The Queen v Crawley and others [2014] EWCA Crim 1028
Haset Sali v SPC Ltd [1993] HCA 47
Aon Risk Services & ANU [2009] HCA 27
Dennis v United States 339 U.S. 162 (1950)
New York v United States 331 U.S. 284 (1947)
Amador & Amador (2009) 43 Fam LR 268
Cameron & Walker (2010) FLC 93-445
Re L Contact: Domestic Violence [2000] 2 FLR 334 (UK case)
H & W (1995) FLC 92-598
Re R Children’s Wishes [2000] FamCA 43

Articles Cited:
Richardson, E, Sourdin, T and Wallace, N, ‘Self-Represented Litigants: Literature Review’, Australian Centre For Court and Justice System Innovation 2012.
Pagone, Justice T, ‘Divided Loyalties? The Lawyer’s simultaneous duty to Client and the Courts’, (VSC) [2009] VicJSchol 19.
Access to Justice Arrangements – Inquiry Report, the Australian Productivity Commission, December 2014.
JB, Kelly & MP, Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476

Applicant:

MR MARTIN

Respondent:

MS MARTIN

File Number:

PAC 247 of 2012

Judgment of:

Judge Harman

Hearing date:

7 November 2014

Date of Last Submission:

7 November 2014

Delivered at:

Parramatta

Delivered on:

19 December 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Kenny

Solicitors for the Respondent:

Champion Legal

Counsel for the Independent Children’s Lawyer:

Mr Cook

Solicitors for the Independent Children’s Lawyer:

Adams & Partners Lawyers

ORDERS

The Application of Mr Martin filed 16 May 2013 is dismissed.
Ms Martin shall have sole parental responsibility for the children:
X born (omitted) 1999;
Y…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 2838
Decision Date: 19 December 2014

CaseChat Overview and Summary

This case concerned parenting orders made by Judge Harman in the Family Court of Australia. The dispute involved allegations of family violence and the impact of the adversarial process on the children's best interests, particularly in circumstances where one party was self-represented.

The court was required to determine the best interests of the children, considering the nature of coercive and controlling family violence, and how this violence impacted the children. A further issue was the weight to be given to the views of adolescent children when those views were clearly expressed and independently formed based on their lived experience. The court also considered the challenges posed by self-represented litigants within the adversarial trial system and how this might affect the fairness of proceedings and the attainment of justice.

Judge Harman's reasoning emphasised the fundamental importance of family violence to the determination of children's best interests, describing such violence as a form of terrorism. The court noted that allegations of "brainwashing" were unsupported by evidence. The judge highlighted the vulnerability of the court and the integrity of the justice system to the advocates appearing on behalf of clients, and the need for a level playing field, especially for unsophisticated self-represented litigants. The court acknowledged the reality of self-representation and the need for meaningful responses to its implications to enhance the perception and attainment of justice and the best interests of children.

The court ordered that the father's application be dismissed and that the mother have sole parental responsibility for the children. The children were ordered to live with their mother, and the father was restrained from approaching within 500 metres of the children's schools or the mother's home. The mother was granted a certificate for potential costs recovery, and detailed information regarding the obligations and consequences of the orders was attached. All outstanding applications and exhibits were to be dealt with as specified in the orders.

Orders

Orders of the court

The Application of Mr Martin filed 16 May 2013 is dismissed.

Ms Martin shall have sole parental responsibility for the children:

X born (omitted) 1999;

Y born (omitted) 2011; and

Z born (omitted) 2003.

The children shall live with their mother, Ms Martin.

Mr Martin shall be restrained pursuant to section 68B of the Family Law Act 1975 from entering upon, approaching or being within 500 metres of the schools attended by the above children or any of them or the mother’s home.

Ms Martin the Respondent shall be granted a Certificate pursuant to section 10(2) of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect to such part as the Attorney-General considers appropriate.

Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

All outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.

Upon the expiration of the Appeal period and in the event that no appeal is lodged all exhibits shall then be returned to the party who tendered same and that all material produced on subpoena shall be returned to the person or organisation who produced same.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The interaction of the Court and lawyers in the administration of justice was eloquently described by Justice Pagone of the Victorian Supreme Court in a speech ‘Divided Loyalties? The Lawyer’s simultaneous duty to Client and the Courts’:The judge, and the integrity of the system, is peculiarly vulnerable to the advocates who appear on behalf of clients. A judge cannot undertake independent enquiries into the facts and issues of cases which require judicial determination. Judges do not have the staff, the financial resources, the knowledge or the skills to make or to order their own enquiries about the matters they need to decide cases. It is neither efficient nor proper for judges to take on such tasks. It is efficient to leave the task of evidence gathering to the parties who are best placed to know what to investigate, what matters to pursue, where to find the facts, evidence and expert knowledge that needs to be pursued, and how best to present those matters to a judge when identified and obtained. It would also be inappropriate for judges to assume those tasks because it would expose the decision maker to the criticism of having ceased to be an impartial decision maker deciding between conflicting parties and to have become, in practical effect, a partisan in the dispute. The losing party to any conflict, and the public as a whole, can have greatest confidence in the fairness of an outcome where the process is manifestly impartial and where decisions are made by a neutral decision maker. Such confidence is likely to be maintained where the parties, including – if not especially – the losing party, have had effective control of the elements which went into the decision of a neutral and impartial decision maker.An effect of this reality, and of these objectives, is that the judge relies heavily upon what lawyers advance on behalf of their clients. It is in that sense that the decision of the judge, and the integrity of the system, is vulnerable to the advocates who appear on behalf of clients[emphasis added]. Judges need to be confident about what they are told by the lawyers on behalf of their clients. I do not suggest that self-represented litigants can be treated differently. There is one set of rules and they must be consistently and evenly applied. Due process must be afforded to all parties equally and that requires a demonstrated and perceived impartiality of the bench. Whatever the rules or processes may be they must be adhered to and applied consistently and uniformly. But a process which better protected against such manifest inequalities in contests between the competently represented and the incompetently represented, including the “unsophisticated self-represented litigant”, and which allowed a more level playing field, can only enhance the perception and attainment of justice and ultimately the best interests of children. Self-representation by litigants is, and has for some time been, a reality. We have been slow as Courts to recognise this reality or contemplate its implications. Meaningful responses to that reality are, perhaps, overdue.

Ratio Decidendi

Legal Principle Established

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