Mazorski & Albright

[2007] FamCA 52

FAMILY COURT OF AUSTRALIA

KENT & ADAMS(AKA ADAMS & ADAMS (NO 2)) [2007] FamCA 52

FAMILY LAW - Importance of not interrupting cross-examination – Refusal of application to issue subpoenae.

Family Law Act 1975 (Cth)

APPLICANT: Ms Kent

RESPONDENT: Mr Adams

INDEPENDENT CHILDREN’S LAWYER: Donald S Lampe

FILE NUMBER: MLF 2456 of 2006

DATE DELIVERED: 9 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 9 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

Orders

1. The application of the father to cause subpoenae to be issued to police officers of the Australian Federal Police and Victoria Police for evidence arising out of their attendance to the execution of a recovery order on 20 June 2006 is dismissed.

2. That henceforth until further order the father not be permitted to participate in the proceedings from this courtroom but participate from another location within the building which he will be notified of shortly prior to 10.00am on Monday morning.

3. I adjourn these proceedings until 10.00am on Monday morning when they will recommence with the cross-examination of the father in the event that he wishes to proceed with the application and to participate in the proceedings.

4. I reserve liberty to the father to make application to discharge the order about his participation in the proceedings from a remote venue and to do so orally.

5. I reserve liberty to apply generally

6. I order that there be a transcript of my reasons delivered this day prepared as a matter of urgency and when prepared be sent to each party at their address for service and a copy made available at the court by not later than 10.00am on Monday morning.

7. Any applications by the father or any other party to the proceedings to adduce further evidence or to cause subpoenae to issue wait until the conclusion of the father’s cross-examination.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2456 of 2006

Ms Kent

Applicant

And

Mr Adams

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. In this matter the father has made a second application to cause subpoenae to issue to officers of the Australian Federal Police and Victoria police who attended a recovery order being executed in 2006.  They are named in the documents and include Federal Agent S and Federal Agent W.  I refer to this as being the second application by the father because he made the same application earlier in the proceedings.  Then, in discussion with me he abandoned the application with the consequence that I made no formal ruling, so I make the ruling now having regard to what he had submitted are the reasons for calling the police officers. 

2. The father says, candidly, that he does not know what the police officers will say as evidence. 

3. I record that at this stage, the father attempted to interrupt and speak over me.  He was removed from the court pursuant to a direction by me.  He will get a transcript in due course. 

4. When asked to outline what evidence they were likely to give, the father could only say the questions that he proposed to ask the police officers.  These included asking the relevant officers to confirm that they were charged with the duty by the court to execute the recovery order, that they physically abused the child, that they abused the child (V) emotionally and whether what they did was lawful.  At that point the father repeated that he did not know what the police officers would say, “you will have to ask them” or “we will have to ask them”. 

5. I allowed the father to continue in case he said something which could advance his application.  He did not.  The father said that he would ask them why they humiliated K, who was a child of approximately 11 or 12 years of age at the relevant time and the child of Mr T, with whom the father resides.  He would ask them whether they could have executed the recovery order differently.  He would ask them whether they had broken the law by doing harm to J, who I take to be another child, and K.  The father said that the execution of the recovery order in the presence of the child diminished the father in the eyes of the child and in the eyes of the other witnesses.  The corollary of that - and I think it is fair to say that he seemed to refer to it - is that in his presence he saw his child diminished by the fact that his father was humiliated. 

6. The father said that he would ask the police officers about having driven with V in a motor vehicle without V being lawfully restrained by a safety belt.  He would ask them about how they manhandled the child.  At the point where the father twice commenced to describe matters that he has already described in material about the steaming rice cooker and glass on the floor, I stopped him because he could not say what the police officers would say in response.  It seems that the father has put out of his mind the discussion which we had on Monday of this week to the effect that what is relevant to this case are facts concerning V’s best interests and not facts about extraneous events. 

7. The task that I have is to make orders that are in V's best interests.  There are competing applications for V to live with both the mother and the father.  Whichever parent I ultimately order be the parent with whom V resides, the other parent will seek, or at least I would have to consider, the issue of what time V would spend with them.  The father is a litigant in person.  He has made some effort to prepare his case.  I have made considerable allowances for the father and tried to direct him, in accordance with relevant authorities, about matters of evidence.  The practitioners at the bar table have been accommodating in admitting into evidence documents which were otherwise inadmissible.  They are concessions made by the wife and the independent children’s lawyer.  In the absence of concessions, I am still bound by the rules of evidence. 

8. The father’s first and probably most significant misapprehension was that the provisions of div.12A of the Family Law Act 1975 in relation to the less adversarial way of conducting proceedings applied to this case, which is not the case, it being proceedings initiated prior to 1 July 2006.  I said to the father that in my view the rules of evidence were rules of fairness and I wanted him to let me know during the hearing if he perceived that evidence was being adduced in an unfair manner.  I take his current application as an application made broadly under that umbrella.  However, the father wanted to insist on making it in the middle of his own cross-examination.  So as to interrupt cross‑examination. 

9. Because, had be succeeded, 3^rd parties may have been required in court on short notice, I allowed him to proceed with the application.  However, in my view the evidence which the father says he cannot say what evidence they are likely to give.  Even if they were to agree with everything that the father says, I fail to see how that is relevant to an inquiry into what parenting orders are in the best interests of V.  The father had an opportunity to tell me otherwise and could not. 

10. The father clearly has a number of grievances against the Australian Federal Police and those grievances are not confined to the particular recovery order which was executed on 20 June 2006, but the father’s grievance against the Australian Federal Police arising out of their conduct on 20 June 2006 is not a matter relevant to this case.  

11. This case ought not and will not be the mechanism by which the father obtains evidence which he may wish to use elsewhere, as seems to be his want.  The incident in question arose out of these proceedings in a general sense but in my view it is not necessary nor probative of a fact in issue to call the policemen to give evidence about what occurred on that day.  I have already admitted into evidence a videotape taken by the child K of the recovery order being executed.  That has been viewed by the court. 

12. I have explained to the father what constitutes evidence, the sequence in which evidence is adduced and, in particular, cross examination.  

    
    

    The father now says that he will not answer any further questions in cross examination until he is permitted to make applications to have subpoenae issued out of time and, effectively, to re-open his evidence in chief.  I have made it clear to him that cross examination of him must continue to conclusion.  His cross examination may conclude by him answering no further questions but the cross examination process is not something he can leave, discontinue and return to as he wishes.  

13. Cross examination is a very important part of evidence because it is the prime means by which evidence, in this case, the father’s evidence, is tested.  If his evidence is not tested in cross examination it will be open to me to consider that it is of inferior quality to evidence which was tested or available to be tested (such as that of the applicant wife and other witnesses).  

14. Interruption to cross examination of the father is an interruption to the process by which his evidence is tested and potentially weakening of

    
    

    the father’s case.  It is not appropriate that any party’s case be weakened artificially or inadvertently or through ignorance of court process. 

15. As indicated, the father spoke over me and interjected.  He has been warned that could not be tolerated because it interferes with the ability of the court to conduct its business and keep a record. 

16. On Tuesday, 6 February 2007 I made certain orders, and in circumstances where it was necessary for the safety of those in court and the orderly running of proceedings.  I ordered that the father be removed from the court and placed in custody temporarily. 

17. Now, I do not want to exclude the father from the proceedings in any way, however his behaviour makes it difficult for me to have any confidence in his ability to continue properly with proceedings. 

18. I will now put in place what I have advised the father I would do in the event that his behaviour became disruptive or he spoke over me and interjected and interrupted.  He has done all of those this afternoon.  He has also indicated that he will answer no further questions by way of cross-examination. 

19. It is now a quarter past 3.  I will adjourn the proceedings until 10 am on Monday.  As at 10 am on Monday, the father will be excluded from the courtroom until further order and permitted to participate only by remote mechanism from another courtroom.  His participation will be full in the sense that it will be by video-link but there will be a muting facility, and in the event that he speaks over anyone inappropriately he can muted, thereby not interrupting the hearing.  He can speak in turn.  

20. If the father does not participate in the proceedings, the proceedings may continue without his participation. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  12 February 2007