Samuels and Shaw

[2011] FamCA 965

FAMILY COURT OF AUSTRALIA

SAMUELS & SHAW [2011] FamCA 965

FAMILY LAW – PROCEDURAL – Whether the Court will release audio recordings of what has happened in a court room after proceedings have concluded on a final basis – Where the applicant alleges the Judge was making arrangements to discuss matters with opposing counsel relevant to the case in the absence of the applicant – Where that allegation is unfounded – Release of audio recording refused

Family Law Act 1975 (Cth)
Section 31
Family Law Rules
Rule 5.01

APPLICANT: Ms Samuels

RESPONDENT: Not participating in this application

FILE NUMBER: SYF 5191 of 1993

DATE DELIVERED: 14 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 28 November 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

Orders

1. The Application in a Case filed by Ms Samuels on 20 July 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Samuels & Shaw 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: SYF 5191 of 1993

Ms Samuels

Applicant

And

Not participating in this application

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By way of Application in a Case filed on 20 July 2011, Ms Samuels sought an order for leave to obtain “an audio copy of the court recording of the hearing held before Justice Fowler on 6 July 2009, court 5C, Sydney Registry”. 

2. When the matter came before me on 31 October 2011, it became clear that Ms Samuels had already obtained a copy of the transcript of the proceedings before Fowler J on 6 July 2009 and what she was actually seeking was a copy of an audio recording (if made) after His Honour had finalised the proceedings and adjourned the court.

3. On 6 July 2009 Fowler J made consent orders which finalised all outstanding matters.

4. Ms Samuels has given evidence that she has lodged a complaint to the Petitions Team, the United Nations Committee on the Elimination of all Forms of Discrimination against Women, High Commissioner for Human Rights, United Nations, Genève. 

5. Ms Samuels wishes to obtain a copy of the audio recording she is requesting so that she can place it with other material that she has apparently sent to the Petitions Team.

The basis upon which the application is made

1. Rule 5.01 Family Law Rules provide that a party may apply for an interim, procedural, ancillary or other incidental order in relation to a cause of action only if:

   (a)  the party has made an application for final orders in that cause of action; and

   (b)  final orders have not been made on that application.

2. Final orders have been made in the application.  Ms Samuels has not filed any new application for final orders.  However, pursuant to rule 1.12, in order to expedite the matter, I dispense with rule 5.01 on the basis that I will treat the application that Ms Samuels has made as an application for final orders.

3. A question arises as to whether or not the court has any jurisdiction to make an order in the nature sought. Pursuant to s 31 Family Law Act 1975 (Cth) (“FLA”), the court has jurisdiction with respect to matters arising under the FLA in respect of which matrimonial causes are instituted or continued under this Act. Given that there are no current proceedings, the application brought for final orders by Ms Samuels could only be a matrimonial cause within the definition of subparagraph (f), which is in the following terms:

   (f) any other proceedings, (including proceedings with respect to the enforcement of a decree or service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the paragraphs (a) to (eb)....

4. In this case there are completed proceedings of the kind referred to.  It is questionable as to whether or not this application relates to those proceedings.  Ms Samuels is seeking an audio tape made at a time when the proceedings were over, for the purpose of adding it to the material that she has sent to the Petitions Team. 

5. Nonetheless, the court has an inherent ability to control its own processes.  As part of keeping a record of proceedings, the court has a contract from time to time, with a provider of transcription services.  The court, in an appropriate case, would have the ability to release a recording that had been made by that contractor of something that happened in a court room outside the time that the court was sitting on a particular case.  However, the circumstances in which that might happen would be exceptional and a release of recordings made in those circumstances would only be made based on cogent evidence. 

The Evidence

1. Ms Samuels sent a letter on 12 September 2009 to the Chief Executive Officer of the Court complaining about various matters in the proceedings before Fowler J.  A Client Feedback Coordinator sent her a reply on 29 October 2009.  The second last paragraph of that letter reads:

   In relation to your second area of concern, you state that at the conclusion of the hearing of your matter, Mr Lloyd, counsel for your ex-husband was invited to Justice Fowler’s chambers to discuss the lifting of the injunctions over B1 Property.  I am advised that at that point in the proceedings, the terms of settlement and the proceedings had been finalised.  Mr Lloyd was invited to meet with Justice Fowler on other matters unrelated to your proceedings.

2. Ms Samuels in her affidavit filed 15 November 2011 sets out the following:

   25.After the hearing concluded Fowler J invited counsel for [Mr  Shaw] (the Applicant’s ex-husband) into his chambers to discuss the issues of lifting off the Official Trustee in Bankruptcy injunction over [B1 Property].  This was said just after Fowler J left the bench going towards the door on the left side of the court room to the Applicant who was standing at the bar table.

   26.The message was repeated to Counsel Lloyd by the Court Officer.  The Applicant repeated the message very loudly.  She was standing at the bar table in front of the microphone. 

   27.Counsel Lloyd then asked whether he was to go through the door just where the judge had exited from the Court room or via the “back way”.

   28.The Court officer told Counsel Lloyd that he could go through the door that Fowler J had gone through to leave the Court room.

   29.Counsel Lloyd then, with manly mighty steps, leapt up the few stairs and left the court room through the same door that Fowler J had exited. 

3. Because paragraph 25 of Ms Samuels’s affidavit filed 15 November 2011 was not in admissible form, on 28 November 2011 I invited Ms Samuels to give oral evidence about what she said she heard. The following is a transcript of her evidence in response to questions asked by me:

   Right.  Okay.  If you could have a look at paragraph 25?‑‑‑Yes, your Honour.

   Now, you say that on 6 July 2009 there was a hearing before Fowler J and that that hearing concluded;  correct?‑‑‑Yes, your Honour.

   Then you say you heard Fowler J say something; is that correct?‑‑‑Yes, your Honour.

   All right.  What is it you heard Fowler J say and to whom was it said?‑‑‑It was said to the court officer.

   And what did Fowler J say to the court officer?‑‑‑He said something and I didn’t get it distinctly about Mr Lloyd coming into his chambers to discuss some matters and in his hand he had the ‑ ‑ ‑ 

   No, just pausing there?‑‑‑Mm.

   Are they the words you heard Fowler J say?‑‑‑Something about Mr Lloyd coming into his chambers.

   To discuss some matters?‑‑‑To discuss the lifting of the restrictions over the property that we were discussing during the court hearing and that was ‑ ‑ ‑ 

   No, no, just stop there.  I asked you the words that the judge used as you heard them and initially you said he used the words in relation to Mr Lloyd – he invited the court officer to ask Mr Lloyd to come to chambers to discuss some matters.  Now, are they the words the judge used or did he use other words, different words than that?‑‑‑Well, frankly, your Honour, I can’t repeat exactly what was said.

   Well, if he used the words “To discuss some matters” there’s no inconsistency between what you have been told in a letter from the court and what you heard?‑‑‑Excuse me, your Honour, he asked him to come into his chambers to discuss lifting of the restrictions over [B1 Property].

   You heard the judge use exactly those words or as best you remember he used words to that effect?‑‑‑Words to that effect, but it was lifting of the restrictions – not the injunctions, the restrictions over that property which we were discussing during the court hearing because I brought it his Honour’s attention during that hearing ‑ ‑ ‑ 

   All right.  No, just hold on.  His Honour then left the bench?‑‑‑His Honour was leaving the bench when he said that to the court officer.

   Right?‑‑‑And he was looking at a sheet of paper in his hand.

   Now ‑ ‑ ‑?‑‑‑I can’t – I know that he said, “Lifting the restrictions over that property,” because they’re the matters that were discussed during the hearing and I gave him the actual Lands Titles Office – no, historical – or a record when I ‑ ‑ ‑ 

   All right.  [Ms Samuels], you can go back to the bar table now.  Thank you?‑‑‑Thank you.  And I repeated it exactly as it was said.

4. As can be seen, in her oral evidence Ms Samuels initially indicated that the words used were “to discuss some matters”.  When I pointed out to her that that was consistent with what she had been told in the letter she had received from the client feedback coordinator on 29 October 2009, Ms Samuels indicated that the words used were “to discuss lifting of the restrictions over [B1 Property]”.

5. Despite the inadequacies in the evidence, given the extensive history of Ms Samuels’s litigation, I indicated to her on 28 November 2011 that I would listen to any audio recording of words spoken by Fowler J as he was leaving the bench at approximately 11:18 on 6 July 2009.

6. I have done so.  There is no recording of any words that Fowler J has said after he adjourned the matter.  There is a recording of the following exchange immediately after the court adjourns:

Mr Lloyd	Thanks [Ms Samuels]
[Ms Samuels]	As I said, you’re great.
Mr Lloyd	Thanks
[Ms Samuels]	What’s your name so I can remember you?
Mr Lloyd	John Lloyd
[Ms Samuels]	John Lloyd. Yeh, I always remember you
Court officer	Mr Lloyd
Mr Lloyd	Mm
Court officer	When you’ve got a moment
Mr Lloyd	Mm
Court officer	for His Honour
Mr Lloyd	Yeh, ok.  Just me?
Court officer	Yep
Mr Lloyd	Do you want me to go that way?
Court officer	Yes

CONCLUSION

1. It is inherently unlikely that His Honour would have done what Ms Samuels asserts. There is no evidence on the audio tape that His Honour did any such thing.  Ms Samuels was clearly having a conversation with Mr Lloyd during the period of time when she said she overheard the words spoken by Fowler J to the court officer.  Ms Samuels was unable initially to remember the words that she eventually alleged were said and at one point said, “Well, frankly, your Honour, I can’t repeat exactly what was said”. 

2. There is no basis established by Ms Samuels to release the audio recording to her and I decline to do so. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 14 December 2011.

Associate: 

Date:  14.12.2011