Ye & Cai (No 6)
[2022] FedCFamC1F 782
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ye & Cai (No 6) [2022] FedCFamC1F 782
File number: CAC 1379 of 2021 Judgment of: GILL J Date of judgment: 17 October 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where father is seeking access to video footage of courtroom and chambers in context of alleged collusion between a Senior Judicial Registrar and legal practitioner of the mother – No probative basis for such an allegation. Legislation: Family Law Act 1975 (Cth) s 114 Cases cited: Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 14 October 2022 Place: Canberra Solicitor for the Applicant: Self-represented litigant Solicitor for Respondents Self-represented litigants Solicitor for the Independent Children's Lawyer: Was excused ORDERS
CAC 1379 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CAI
Applicant
AND: MS YE
First Respondent
MS ZEXI
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
17 October 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 17 August 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ye & Cai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction
This application involves various interlocutory remedies sought by Mr Cai, but in particular, it is focussed upon his application to access (presumably if available) security footage from a courtroom, from outside the courtroom and from the chambers of a Senior Judicial Registrar (“SJR”) on 1 July 2022 for a period of time following his appearance in court before the SJR.
ORDERS SOUGHT
As per Mr Cai's Application in a Proceeding filed 17 August 2022, he seeks the following:
(1)Video surveillance footage dated 1 July 2022 from 2.00 pm to 5.00 pm inside and outside of courtroom 3 and the SJR’s chamber;
(2)Transcript of the judgment delivery hearing on 1 July 2022;
(3)Disqualify the SJR;
(4)Remove respondent wife, Ms Ye’s lawyer Ms H under s 114(1) of the Family Law Act1975 (Cth); and
(5)Seek leave to lodge this application.
MATERIAL RELIED UPON
Mr Cai relies upon paragraphs 83 and 84 of his affidavit filed 11 September 2022, and on his affidavit filed 17 August 2022.
The hearing
During the proceedings I identified to the parties that:
(a)Transcripts are generally a matter for the parties. If the parties seek a transcript, they are at liberty to order it at their own expense. No order will be made for the transcript to be acquired by the court.
(b)No issue of disqualification of the SJR arises in the present proceedings as they are not before her.
(c)Ms H no longer acts for Ms Ye and no occasion thereby arises for consideration of her restraint or removal.
This left, as the key issue, the application for security footage from inside and outside the courtroom and from the Chambers of the SJR. What is revealed about this application is that it relates to a contention advanced by Mr Cai that there was collusion between the SJR and the mother’s then legal representative, Ms H, on 1 July 2022.
It may be observed that such an assertion is extraordinary and should not be advanced in the absence of cogent indicators of such.
The approach
The test to apply in the application, which is analogous to a subpoena addressed to the court administration for such video footage, is that it be “on the cards” that the material produced could support the case of the husband.
As described by McClelland J in Baumann and Ors & Rushbrooke and Anor:[1]
30.A subpoena must only be used for a legitimate forensic purpose. In considering this issue, it is unnecessary for the party issuing the subpoena to establish actual relevance. However, the party issuing the subpoena must “demonstrate [that] the documents have an apparent relevance to the issue or issues before the Court and in respect of which the subpoena was filed”.
31. In that context, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case. This is to be distinguished from the process of discovery where such a motive may be permissible.
32. While it is the case that the bar for establishing relevance is not high, the party seeking to rely upon the subpoena must nonetheless establish that it is “on the cards” that the documents would bear upon and have relevance to the issues in the substantive proceedings.
33. Expressed in the reverse, it is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents.
(Citations omitted)
[1] [2016] FamCA 905.
To that framework must be added the following caveat in the particular circumstances of this case. The extraordinary nature of the allegation, and the nature of judicial chambers (the SJR exercises judicial power by delegation) call for a cautious approach before granting such an application, and that an objective justification is required before releasing material pertaining to chambers.
This requires there to be cogency in the material surrounding the assertion as to render both a real prospect that collusion occurred and that the material pursued as a matter of rational inference could reasonably contain relevant evidential material. Anything falling short of this falls foul of the principles described by McClelland J.
It should also be noted that there is no clarity as to whether footage exists in respect of the three areas nominated by Mr Cai, although, of the three areas it appears more likely that there is footage of the public foyer area within the court building.
The evidence
The complaint in the affidavit of 11 September 2022 appears to be that procedural orders were made without reference to Mr Cai or Ms Zexi (Mr Cai’s mother), in particular Order 17 without Ms Zexi having the opportunity to respond, and Order 18 after the hearing was concluded.
Order 17 discharged Ms Zexi from the parenting aspect of the proceedings. The transcript showed that Ms Zexi sought to be removed from the proceedings, her application being partially granted by the SJR.
Order 18 gave procedural directions for the filing of material by Ms Zexi in relation to the property proceedings.
More directly, Mr Cai’s affidavit of 17 August 2020 asserts that to make orders “I understand they ([the SJR] and [Ms H]) met up after the judgment hearing” (at [1]).
He further asserts that that he discovered that orders 17 and 18 were made without his or Ms Zexi’s knowledge (at [3]).
Mr Cai describes that neither he nor Ms Zexi observed Ms H to leave the courtroom after the delivery of judgment (at [6]). He then says:
6. …I understand that she ([Ms H]) secretly attended [SJR] chambers between the hours of 2.00pm to 5.00pm and remained there for a period of 30 minutes to obtain orders against [Ms Zexi] privately in breach of procedural fairness.
Mr Cai continues on to assert that “(b)oth [SJR] and [Ms H] are very dodg(y) and sneaky” (at [9]).
Setting aside the scandalous nature of the affidavit, at its highest is the assertion that orders were issued that had not been canvassed in the oral hearing, and that he had not observed Ms H leaving the courtroom. Such a circumstance, even if made out, does not carry an inference of collusion.
Importantly, there is nothing in the assertions made by Mr Cai that carries with it any capacity to suggest collusion. The references to “I understand” carry with them no probative value to support the allegations made, rising no further than a subjective speculation as to a state of affairs.
No adequate justification is given in support of the application to obtain video footage and the application will be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 17 October 2022
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