Wednesday, 31 August 2011

One sleep to go! White Ribbon Ambassador of the year awards tomorrow night!

Tuesday, 30 August 2011

Family Court #adoption case raises fears over trafficking -SMH http://ow.ly/6g9Yo
Sad, sad, sad. Well regarded US surrogacy lawyer pleads guilty to baby selling! http://ow.ly/6g5VO

Monday, 29 August 2011

RT @surrogacylawyer: Surrogate gives birth to twins for Ohio couple who had other woman's baby in embryo mix-up http://ow.ly/6f1FS
Comment on the possible failure of Tasmanians to legislate for surrogacy: http://ow.ly/6f0kX
Tasmanian surrogacy reform may be "years" away: Mercury http://ow.ly/6eZO8

Sunday, 28 August 2011

Queensland deadbeat dads' tax returns targeted to recover outstanding child support payments Courier Mail http://ow.ly/6ewND

Saturday, 27 August 2011

Federal magistrate sent for 'judicial education' | The Australian http://ow.ly/6dUu0

Sunday, 21 August 2011

#Lesbian co-mother is a parent: Federal Magistrates Court http://ow.ly/68CdP
Perth mother jailed for #childabduction. She's lucky she didn't get longer. http://ow.ly/68BRN
#FamilyCourt disqualifies Magistrate on perception of bias http://ow.ly/68BQv
#FamilyCourt rules on counselling privilege http://ow.ly/68BPD #FamilyCourt got it right.
One of those #FamilyCourt cases where the judge ignored #domesticviolence evidence, followed his opinions http://ow.ly/68BMe

Shared care: not reasonably practicable

In a recent case, Wainder and Wainder a trial judge ordered that the parties share the care of the their son on an equal basis after he turned 5. The only snag was that by then he would be going to school, with the mother living on Sydney's north shore, and the father living in the western suburbs. Not surprisingly, the mother appealed, and was successful:

  1. It may be implicit in his Honour’s order that the child spend equal time with her parents in 2012, that he was satisfied that that arrangement was reasonably practicable within the construct of s 65DAA(5). However the trial Judge’s comments ... appear to us to be an acknowledgement that the proposed order to come into force in 2012 may not be reasonably practicable if the parties were living in their present locations.
  2. The order impugned is open ended and would, without further litigation, extend throughout the child’s school life. Where the court proposes to make orders stretching into the future, the consideration of whether a proposed order is reasonably practicable should focus on the date of enlivenment of the order. The trial Judge is required to make a prediction at the date of trial on the evidence then before him or her as to whether at the date on which the order takes effect, it will be practicable or “feasible”.
  3. Although his Honour paid careful attention to the matters in s 60CC and thereby determined that the proposed order for equal time was in the child’s best interests, he did not proceed to determine whether, on the evidence available to him, the order for equal time would be reasonably practicable once the child started school, and in this respect, fell into error.

SMH v expert. SMH Nil; Expert 1

It was surprising to be reminded that court processes are based on evidence and not personal opinions. This reminder came in a recent case, Herridge and Henderson. The trial judge's views seemed to outweigh the evidence both as to ADHD and family violence. The trial judge's victim blaming was rejected, at least for a lack of reasons. The mother's appeal was successful.


ADHD

In that case an expert, Dr B gave evidence that the son the subject of the court proceedings had some degree of ADHD. His evidence was unchallenged- at least in court.

When judgment was delivered, the judge was skeptical about this evidence, because of an editorial from the Sydney Morning Herald:

I am not in a position to say whether there is any substance in this claim [ as to ADHD]. I do know that the diagnosis of ADHD and the use of Ritalin and the like to treat so called sufferers is still controversial with some authoritative opinion to the effect that it is over diagnosed, or does not exist and is sometimes “used as a crutch” by medical professionals loath to tell parents that their child is “ill-disciplined”, and that Ritalin is over prescribed and used “as a crutch by parents and/or teachers in response to children whose real need is better parenting or teaching” (Sydney Morning Herald, Editorial p12 (25.01.2011))
The Full Court of the Family Court was critical of the use of the editorial, both because none of the parties had been accorded procedural fairness as to its intended use, and because it was not evidence from an expert:

  1. It is not in doubt that, until the delivery of judgment, none of the parties to the proceedings before him had any indication that the trial Judge was going to rely upon the material to which he referred in his reasons for judgment.
  2. To the extent that the newspaper editorial was regarded by the trial Judge as evidence, no party had the opportunity to test it. No party had any opportunity to make submissions about the material, whatever its potential status may have been. Quite apart from the trial Judge’s failure to afford the parties natural justice, the statements from the Sydney Morning Herald reiterated by the trial Judge do not appear to be those of a person who was qualified to make or express such opinions and would not have been admissible.
  3. Sensibly, Counsel opposing the mother’s appeal acknowledged that, as a matter of natural justice, the trial Judge had erred by referring to the material from the Sydney Morning Herald. Necessarily, it was submitted on behalf of the parties opposing the mother’s appeal that, although referring to it, the trial Judge could not be said to have relied in any discernable way on the statements in the Sydney Morning Herald editorial....
  4. (W)e are persuaded that the trial Judge did rely upon what he apparently read in the Sydney Morning Herald editorial in concluding as he did with respect to the child B’s likely future use of Ritalin. To read the three paragraphs is instructive, and supportive of our conclusion.
  5. The trial Judge referred to the children’s behavioural problems, and observed that Dr R “seems to accept that [the child B] has a degree of ADHD”. His Honour recorded, accurately, that the father and his “side of the family” questioned the diagnosis of ADHD for the child B and suggested that “reliance on Ritalin is a substitute for ill-discipline in the mother’s household”. As was conceded before us, Dr R did accept that the child B exhibited ADHD “to some degree”. No party at trial challenged Dr R’s expert opinion evidence in that regard.
  6. In a passage which was understandably relied upon significantly by Counsel resisting the mother’s appeal, the trial Judge said the he was “not in a position to say whether there is any substance in this claim”, i.e. the claim of the father and his family. How his Honour came to “know that the diagnosis of ADHD and the use of Ritalin and the like to treat so called sufferers (emphasis added) is still controversial with some authoritative opinion to the effect that it is over diagnosed” was not revealed by him in his reasons, or anywhere during the trial to which we have been referred. Nor was the basis upon which his Honour observed that the “authoritative opinion” to which he alluded also suggested that ADHD “does not exist”.
  7. In circumstances where there was unchallenged admissible expert opinion evidence that the child B exhibited a “degree of ADHD”, it was not open to the trial Judge, without reference to admissible evidence which was before him, to speculate as to whether or not ADHD existed or was exhibited by the child B. His Honour’s personal opinions, whatever their basis, were no substitute for evidence.
  8. Ultimately, it is apparent from the balance of the paragraph that the trial Judge accepted what an unidentified, and presumably unqualified editor of a newspaper apparently said about ADHD. It is readily apparent that, notwithstanding that Dr R had not expressed the cynicism so colourfully articulated by the newspaper editor, the trial Judge preferred the opinion of the latter.
  9. Our conclusion that the trial Judge’s opinions in relation to ADHD and Ritalin were influenced by the Sydney Morning Herald editorial is reinforced by the first sentence of the paragraph immediately following the reference to the editorial. His Honour there said that if the child B resides with the mother “and she retains a say in his medical treatment he may revert to dependence on Ritalin” (emphasis added). Notwithstanding that there was no evidence that the child B had ever been dependent upon Ritalin, inappropriately prescribed it, or that the mother had ever inappropriately had the child take Ritalin, the trial Judge clearly, and in the face of Dr R’s evidence, which was uncritical of the mother in relation to Ritalin, regarded the child B taking Ritalin in the future as undesirable, and reflecting adversely upon the mother.
  10. It is difficult to see how, by reference to the trial Judge’s own reasons, such a view could not have been reliant upon, or influenced by the newspaper editorial from which he quoted. If it was not, in the circumstances it could only, and impermissibly, have been based upon his Honour’s own views about those matters.
Family Violence

The Full Court stated, quoting the trial judge:
    1. It is my assessment, after reading all the relevant police material in evidence, the affidavit evidence and seeing and hearing both the mother and father giving oral evidence, that the mother is not, and has never been, fearful of the father but that she has abused the system in place to protect people who are in genuine fear, and have a proper reason to be fearful, for the purpose of getting her own way and gaining a tactical advantage in these proceedings. To do so she must have manipulated [the child B] and [the child H] so they would be fearful of their father, not for any benefit to them. Such manipulated fear in the boys is the only explanation for the preschool teacher’s complaint, although it was no doubt made because of information the mother supplied and because of her urging. It is not, in my opinion, a coincidence that Senior Constable [P] reached much the same conclusion as I have about the motives, bona fides, and attributes of the mother. I regard her as attempting to use the Court in the same way as she attempted with more success to use the police and Local Court.
  1. Later in his reasons, the trial Judge referred to an episode on 4 January 2010, and said:
    1. One 4 January 2010, the father attended ... Police Station in response to a police request. He was charged with two counts of breaching the AVO, which was in place at the relevant time. The charges were based on the text messages of 5 and 11 December. He was initially refused bail, and spent from 4 January to 27 January at ... jail. It is a testament of the ridiculousness of the situation that, on 27 January, the father admitted what it was alleged he said and was convicted. It does not reflect well on the legal system and those who refused bail, that the Magistrate sentenced the father to 14 days imprisonment after he had already spent more than that on remand. He was immediately released. The father, his mother, the police, and the Magistrate who refused bail and could not have seriously considered the circumstances, further empowered the mother. That this is the case is shown by what next occurred.
    2. On 15 February 2010, the father went to [the child B]’s school. He had, in May 2009, after I had allowed him to collect the children from school and return them to it, met the Headmistress, [Ms M], to inform her of the situation. He had requested copies of [the child B]’s school reports, including that for the end of 2009. He collected this on 15 February 2010. Either [the Headmistress], who in many ways has demonstrated that she is quite prejudiced against the father in favour of the mother, contacted the police or, as is more likely, contacted the mother, who had already told her not to deliver reports to the paternal grandparents. The mother or [the Headmistress] contacted the police and claimed that the father had breached the AVO, which he had because of its ludicrous terms. One of these was that the father was not to approach the children’s school. The police charged the father on 22 February, but he was granted bail. He had, between 18 February when the police first contacted him about the matter and 22 February made an application to discharge or modify the AVO.
    3. When the matters were due to be heard on 5 May 2010, the mother refused to attend but wanted the orders to continue unchanged. The charge of breach was withdrawn and dismissed and the term of the AVO was reduced from five years to one further year concluding on 5 May 2011. The children were also removed from the “protection” of the AVO and the condition about approaching their school was deleted, as it should have been in view of my still effective orders. The terms affecting the children and school should not have been there in the first place.
  2. Later again, the trial Judge recorded:
    1. ... On any view, the facts up to that time [November 2007] establish that the father could not limit his alcohol consumption to acceptable levels and was very prone to lack of self-control and angry outbursts. These resulted, in Ms [T’s] [the Family Consultant’s] understanding, in damage to property, an assault on police, pub brawling and similar, as well as disparaging language directed at the mother; sometimes in the presence or hearing of the children, but not in assaults on the mother or children.
  3. His Honour also later recorded:
    1. The father was no more candid with Dr. [R] than the mother. He said he was “now” drinking only one or two alcoholic drinks each week, and had no current alcohol problems. Ludicrously, he said he had been a heavy drinker, drinking up to five beers per day. Surely, to get as drunk as he often was, he was drinking much more than that, and would be likely to believe that to drink five beers a day would be very modest consumption. He attributed the breakdown of his relationship with the mother in part to her objection to his alcohol consumption. This is probably true. The paternal grandmother understated the father’s alcohol problem to Dr. [R] and excused it by blaming the mother.
  4. At trial, Counsel for the ICL submitted the following in relation to the issue of violence:
It is submitted that the Court would be persuaded that there is substance to the mother’s complaints about breach AVO’s, given the number of convictions and the sheer number of messages, coupled with the father’s admission to the police that he recognised that he had breached the orders on a number of occasions. The Court would also accept that her concerns that the children or either of them had been sexually interfered with were genuinely held, and based on the unchallenged evidence of [Dr B] it is clear that [the child B] made some disclosures even though JIRT held that the charges could not be substantiated, and that she was perhaps encouraged in those beliefs by the responses she received from [Ms G], [Mr F] and [Dr N]. ...

  1. The trial Judge’s ultimate conclusion with respect to family violence was:
    1. The mother’s allegations of family violence have already been chronicled and rejected. There is still a family violence order which, as recently as May 2010, the father contested and had reduced in duration. In my assessment, it was largely made without justification and should not be permitted to inhibit what would otherwise be appropriate parenting orders.
  2. Earlier, his Honour said:
    1. There are no significant practical difficulties and expenses which ought to arise whether the boys live with the mother, the father, or the paternal grandmother, which will significantly affect the maintenance by the boys of their right to have personal relations with, and direct contact with, both parents and all the relevant family members on a regular basis. The main source of such practical difficulties to date has been the attitudes of the mother, those who support her, those who have empowered her such as the Police and Local Courts in granting AVO’s to “protect” her and the children unnecessarily, and the father’s weakness of character which makes him vulnerable to her manipulative and deceptive actions.
  3. As is readily apparent, notwithstanding that courts charged with hearing and determining AVO proceedings had determined such proceedings in the mother’s favour, in criticising the mother in the way in which he did, the trial Judge effectively criticised the person who had been found by courts dealing with such matters to have been the victim, and considered the father, who had been found to be the perpetrator of family violence, the victim.
  4. Earlier still, the trial Judge found the mother’s behaviour had been “so serious and potentially damaging to the children” as to raise the prospect of the children only having supervised contact with her. His Honour had also found that “[n]ow that the parents live apart, there is virtually no prospect of incidents of violence occurring between them”. His Honour proceeded to find that “any risk that [the father] would harm the children either physically or psychologically as a result of abuse, family violence or neglect is such that the risk is so low as to be within acceptable limits”. Those findings have not been challenged in this appeal....
 The conclusions of the trial Judge with respect to the topic to some extent appear to reflect his personal views in relation to the operation of family violence laws in this country, and of those who rely upon them, or support and assist those who do. Similar views found expression elsewhere in the trial Judge’s reasons, such as the following paragraph:
126. [The child B] had continued to see [Mr F], is a senior counsellor with the NSW Child and Adolescent Mental Health Service, and [Ms G], a biased clinical psychologist at [E Organisation]. [Ms G] made a report that the children could not spend time with the father following an alleged relapse in his behavioural problems. [Ms G] is so biased that, in a report she made on 23 September 2008, she said [the child B] has disclosed sexual assault to a doctor. Unfortunately [my emphasis] [the child B] has not disclosed to JIRT.” [The child B] was referred to [Dr N], no doubt because the mother had approached [Mr F] or [Ms G].(emphasis added)
and

  1. Further support for our conclusion is gained from the following extract of the passage which we have earlier set out in full:
    1. ... It is typical of the mother’s case that she claims many acts of violence against her by the father, but provides next to no detail or specific evidence of it. I regard the mother as being an exaggerator and habitual liar, and as being exceptionally willing and able to manipulate situations to her perceived advantage, especially by using politically correct do-gooders and people who have a duty to deal with social problems and the like, but not the time, inclination or ability to distinguish truth from fiction. I do not completely discount the allegations of violence. I think they have been greatly exaggerated in number, extent and effect by the mother and regard the limit of the father’s violence toward the mother as likely to be drunken verbal abuse, threats and occasional damage to property.

Family Court stands up for bank and removes "Today Tonight" order

The Full Court of the Family Court, in a case called A Bank and Coleiro recently rejected the approach of Federal Magistrate Harman on contempt, and how to deal with his bank. The bank appealed, successfully, against various orders made by Federal Magistrate Harman.

First appearance 7 April, 2011

The husband appeared without a lawyer, but with an interpreter. The husband had sold his home, for about $200,000, and in answering a question from the Federal Magistrate as to whether the money was still in the account of his solicitors, said "yes" through his interpreter.

There was a short break. On the matter coming back before the court, a duly lawyer appeared for the husband. It became apparent that the $200,000 had been deposited to an account of the husband's held with the bank. No bank statements were provided. The duty lawyer told the Federal Magistrate that the husband had trouble hearing, and  dementia, and that she was concerned about whether or not the husband had capacity to instruct her.

The transcript speaks volumes as to what happened next:

Can I ask you, Ms Interpreter, to explain. I want [the husband] to tell me where the $200,050 is; and if he either refuses to tell me or he genuinely no longer has the money, he starts a gaol sentence today. THE INTERPRETER: Okay. [The husband] says that he fell sick. He put the money in the back of the car and that when he looked for that, they were no longer there.
HIS HONOUR: Can you ask him is there any money left in any account with [the bank]?
THE INTERPRETER: Okay. All I have left is about $3000.
HIS HONOUR: Then can you ask him is there somebody who can bring his toiletries because he is going into a police cell in about five minutes time?
THE INTERPRETER: Okay. Sir, [the husband] insists he doesn’t have any money, okay? No, I don’t have anybody.
HIS HONOUR: Then can you please tell him he will be going to gaol until the money is produced.
THE INTERPRETER: I don’t have any money. Somebody stole the money.
HIS HONOUR: Then can you please tell [the husband] he will be in gaol for a very long time.
THE INTERPRETER: I don’t have any money.
HIS HONOUR: I am getting the police here now. They are going to take you into custody and put you in a cell.
THE INTERPRETER: Okay. I can’t do anything about it.
HIS HONOUR: Very well. While we are waiting for them, you need to go to the witness box, please...

HIS HONOUR: Now after you received th[e wife's property settlement] application, the sale of that house at [D] finished, it was sold. Do you agree with that?
THE INTERPRETER: I had to sell it because I didn’t have any more money to pay.
HIS HONOUR: But it was sold or the sale completed after 26 February. Do you agree with that?
THE INTERPRETER: I sold the house before I received the papers.
HIS HONOUR: On 1 March, you deposited a sum of $200,050 with [the bank]. Do you remember that?
THE INTERPRETER: Yes.
THE WITNESS: Yes.
HIS HONOUR: At around that time, you had opened three accounts with the [the bank]?
THE INTERPRETER: Yes.
HIS HONOUR: And after those –that money was deposited to your account on 1 March, you would appear to have withdrawn nearly all of it.
THE INTERPRETER: Yes.
HIS HONOUR: A number of those withdrawals occurred by telephone banking.
THE INTERPRETER: No, it’s not through the telephone, no; I went to the bank.
HIS HONOUR: So if your bank statements say that you had made withdrawals by telephone banking, that’s not correct?
THE INTERPRETER: No, it’s not by telephone.
HIS HONOUR: Now a number of the transactions say “funds transferred to term deposit.” Do you have a term deposit with the [bank]?
THE INTERPRETER: No, I haven’t got an account, a term account.
HIS HONOUR: Then before we proceed any further, can I make very clear to you what is occurring. If I could ask you to translate that, please.
THE INTERPRETER: Yes, I did have an account there but I closed.
HIS HONOUR: You were under oath to tell me the truth.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: And [Counsel] who appears for your wife is going to make some further inquiries during the course of the day to get documents from [the bank].
THE INTERPRETER: She can do so.
HIS HONOUR: And if those – if documents are produced by [the bank] that show that any of the answers you give me are not correct, you will be charged with perjury.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: For now, you are charged with the offence of contempt of court in that you have with full knowledge of the application of [the wife] sought to dispose of or conceal the funds the subject of those proceedings.
THE INTERPRETER: I hid them behind the seat of the car.
HIS HONOUR: If you could just interpret that, please, though, Ms Interpreter.
THE INTERPRETER: I took them out to get a farm.
HIS HONOUR: Very well. Do you understand, [the husband], that you are charged with a criminal offence?
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: Do you understand that you are charged with a criminal offence?
THE INTERPRETER: I don’t understand.
HIS HONOUR: You – after you were served with [the wife’s] application, you allege you have disposed of all of the money that the application sought to divide between you and [the wife].
THE INTERPRETER: No, it’s not true, I did not do it for that.
HIS HONOUR: And until the matter is dealt with to finality, which may take some months, you will be held in custody in gaol.
THE INTERPRETER: I can’t do anything; I have said the truth, whatever happens.
HIS HONOUR: Do you understand that you will very shortly be going to gaol, as in today?
THE INTERPRETER: I can’t do anything; I have said the truth


His Honour then required the husband's friend, Mr B, to go from the back of the court into the witness box.

Then the bank was telephoned, and a bank officer, who was not sworn in, spoke to the court. The officer told the court that there had not been telephone banking, as appeared on the statements, but cash withdrawals, and it appeared that the wrong code had been inputted when describing the transactions on the statements.

His Honour then considered jailing the husband immediately, but put it off when a letter from the husband's GP stating that he had dementia was produced. The matter was then adjourned to another day. His Honour said:

I’m going to release [the husband] on condition that he appear on the next occasion and that he present 120,000 bucks or he goes to gaol next time. I don’t believe for one second his story, or his friend’s story about 200 grand in the back of the car; not for one second. I would slot him for perjury now, if somebody could produce a $20 note that shows he was lying. But I’m just unimpressed that he is served with an application, and two working days later, banks the cheque and proceeds to withdraw it by telephone banking – whether he did it or somebody else – but he must have given them the details for telephone banking after 1 March because that’s when he set up the account, as it would appear, a new customer of [the bank].
And the moment he is able to do that, within the space of eight working days the money has gone; in just enough time for it to all be gone before the first return date. So that’s the course I will take. It’s just an issue of how long. But he goes to gaol next time unless he brings 120 grand in cash, because until he can prove otherwise I’m not buying his story....

HIS HONOUR: Now, Ms Interpreter, can I ask you just to interpret some very brief things. [The husband], we’re letting you go home. But you need to be back here in two weeks’ time on 21 April. There are a number of other things you need to do in the meantime that [Ms L] will explain to you. But the two important things you need to be conscious of is that you need to go to [W] Police Station every day to report so that I know that you haven’t left. And you need to bring $120,000 with you to court on 21 April or you will be going straight to gaol, not passing go, not collecting $200. Because I am not believing your story at all about the money being taken from your car, and if you don’t have money here bring your toiletries you won’t be leaving next time. I am deadly serious you will be in gaol this time in a fortnight if that money isn’t here. Thank you. [Ms L], and to the rest of your team, thank you for the assistance.(emphasis added)

Second appearance 21 April, 2011

His Honour said (Transcript 21 April 2011, page 2, lines 38- 46):
HIS HONOUR: No, no. If you say that has happened, I accept that from you. I did make very clear to [the husband] today, though, that he brings 120 grand or he brings his toiletries because he starts his sentence today if the money is not here.
[MR H]: HE says he doesn’t have the money.
HIS HONOUR: Then I have already taken that evidence and made very clear to him I don’t believe it. I have already convicted him. If he doesn’t come up with the money, he starts his sentence today. 
HIS HONOUR: Well, if that’s so, he will have to deal with Conlan J about that, because I dealt with it last time. It’s a done deal. Does [the husband] get a pension?..
HIS HONOUR: And [the husband] will find himself entirely deprived of the balance of that account and I will be garnisheeing his pension, and he will be starting his sentence ...
HIS HONOUR: But as I said, [Mr H], I need to stand the matter in the list. [The husband] is not to leave the registry because I hear what you say in relation to the findings that could or should be made, but I have already made them. He has already been convicted. He has already been sentenced. I suspended it on the last occasion. The suspension ends today. I made very clear the 120 is here, because I don’t believe he doesn’t have it.

I suppose, being blunt, I don’t particularly want to see the Sunday Telegraph with a banner headline about the nasty Federal Magistrate who caused an elderly deaf man to get beaten in jail, when it’s not achieving a purpose. If it achieved a purpose, well, he can cop the beating. But it’s not going to achieve a purpose. So I think, certainly, that would be the course. But it’s an issue, then, of – I think, you wouldn’t have had the opportunity, yet – I haven’t look at the file, but you – no, you have, sorry. You filed a response, [Mr H]. (Emphasis added)

As Chief Justice Bryant noted:

His Honour was ultimately persuaded by Counsel for the husband that he should dispense with the order requiring him to attend at the police station every day. Counsel for the wife indicated to his Honour that her client was sufficiently protected by the injunctive orders and a restraint on the husband from leaving the country and did not require the husband to report to the police station. His Honour’s response was (Transcript, 21 April 2011, page 12, line 39):
HIS HONOUR: Certainly. Very well, and we can bury that as well.
  1. His Honour then made an order dispensing with reporting to the police at all.
  2. What his Honour did with the contempt application itself is not clear as it is not mentioned.
 The bank

Federal Magistrate Harman joined the bank as a party. No application had been made to join the bank. No one from the bank was given the opportunity to repond to the application before it was heard.

What his Honour said speaks for itself:

One thing I would propose doing, and I’m fully conscious they’ve had no notice of it, but I don’t particularly care about that, is join [the bank] because I think that’s the best way I’m doing(sic) to get them here, and I think if I am incorrect in disbelieving [the husband], will give you the best shot to protect [the husband’s] interests - - -
... I know we haven’t given any notice to [the bank], although, we did, in fact, have some person from [the bank] whose name I can’t remember give some evidence by telephone on the last occasion, which is how it came to be that, in fact, we became aware that each of the transaction descriptions on the [bank’s] banking records was wrong. So I suppose to that extent, that’s probably the notice they’re getting. But I want to join them as a party because – if they’re disgruntled by that, well, they can appeal. They can’t get a costs order against the court. They certainly won’t be getting one against the parties.
If I am incorrect in my suspicion as to the veracity of [the husband’s] evidence about what happened with his money, then, that will give you the best shot to protect [the husband’s] position and seek orders against [the bank] as to anything that has happened that may have been fraudulent but not involving [the husband]. And [Counsel for the wife], that will, if I’m right about that and there has potentially been some collusion or otherwise, that will give your client the best shot of doing something about it....
:
So it’s an issue of whether we’re going to a conciliation conference, whether we’re simply coming back to see what [the bank] has to say for themselves, and I will make sure, in joining them, that I express very clearly why because something that is not quite right has been going on at [the bank]. Seeing as they have control of my money and my wife, I’m not particularly excited about that....

I don’t want to, for the reasons I’ve already described, [solicitor for the husband], put you to the difficulty and expense of dragging you in to Sydney, although, it probably suits [the bank]. But probably, the more inconvenience we create for the (sic), the better.


His Honour adjourned the proceedings to June, but noted these things first:



The [Bank] is joined as a party because:
  1. the material produced by the [bank] on subpoena purporting to be the proper business records of the bank would appear to be either inaccurate or fraudulent;
  2. evidence given when the matter was last before the Court would give rise to a suggestion of collusion between one or more bank offers (sic) and/or [the husband] or other persons;
  1. the opening of the accounts and their operation relevant to these proceedings would appear highly unusual and would appear to involve substantial cash withdrawals within a short period of time and would not have been reported to the appropriate agency and would have the affect to [the husband’s] knowledge of frustrating the Wife’s application and subverting the Courts jurisdiction.
  1. The evidence available in the mater (sic) to date would also suggest a lack of duty of care by the bank towards [the husband] in that he is elderly, suffers a hearing difficulty, is suggested to be affect (sic) by dementia and the transactions which had occurred would appear to have been assisted or undertaken by persons other than [the husband]; and
  2. If one or all of the above are ultimately found proven by the evidence in this case the Court will consider making orders for compensation or restitution against the [bank].
Third appearance 11 June, 2011


When the matter next came before his Honour in June, the bank was represented. This exchange took place between his Honour and counsel for the bank:

HIS HONOUR: And if they don’t, there’s nothing produced and there’s a subpoena outstanding and I’m entitled to arrest the managing director of [the bank] right now because they have had three months to comply with the subpoena and have chosen not to, other than to produce documents which mislead the court. And I’m not suggesting that’s deliberate but they do and they’ve got this man arrested and put in custody.
[MS B]: Your Honour, may I take umbrage and say [the bank] did not get [the husband] arrested. As I understand, that was your Honour’s bench warrant.
His Honour then did this:

I note that a subpoena addressed to the [bank] was previously served and made returnable 7 April 2011, and with respect to that subpoena (a) documents were produced by the [bank]; (b) after the matter had been dealt with and interim determinations made with respect to the substantive proceedings, and following cross-examination of the husband and another witness in his case, further documents were produced by the [bank], and an officer of that bank contacted to give evidence by phone which suggested that each of the documents that had been produced by the bank to the court in purported compliance with the subpoena did not accurately reflect the transactions which had, in fact, occurred.
Next:
The material to be filed by the [bank] shall include and annexe copies of all relevant documents, including statements, vouchers, deposit and withdrawal slips, internal memoranda or such other documents as would go to: (a) an explanation of the discrepancies between the various documents now produced, and particularly noting that the documents initially produced suggested that most, if not all, of the transactions which had occurred had been conducted by telephone banking, whereas it would now appear no such transaction had ever occurred, and further, that such transactions as had occurred largely involved transfers of funds to a term deposit account which it is also now suggested does not, and has never, existed; (b) the apparent different signatures on each withdrawal slip and application for opening an account that has been produced to the court; (c) an explanation as to the bank’s compliance or otherwise with financial reporting obligations regarding cash transactions in excess of $10,000.
(Transcript, 14 June 2011, pages 13-14)
...
(9) I grant leave to each of the husband and the wife pursuant to section 121 of the Family Law Act to make such disclosure of these proceedings and the nature of same and allegations contained therein as they consider appropriate, and note that any such disclosure or invitation to any media organisation to investigate issues relevant to these proceedings will seek to obtain information by way of interview or otherwise is (a) considered to be in the public interest, and (b) shall not constitute a breach of section 121.

When his Honour made the publicity order, he did so without being asked to do so by anyone, and had not sought submissions from the bank. Counsel for the bank made the point plainly:

While these are matrimonial proceedings, the bank is nevertheless entitled to some protections and to many protections which exist to all entities of proceedings, be they corporations or private citizens.

 Justices Finn and Strickland had this to say about the joinder:
  1. It was neither appropriate nor necessary for the Federal Magistrate to join the bank at that point. However, it is apparent from what the Federal Magistrate said on 21 April 2011 that he had a collateral purpose in making the joinder order. He was using it as a way of getting the bank to appear before him and to allow the wife to pursue a claim for “compensation or restitution” against the bank. Yet, it was unnecessary to join the bank to achieve these purposes (if indeed they needed to be achieved). The bank could have been required to attend in the context of the alleged non-compliance with the subpoena that had been issued, and if the wife sought to make a claim against the bank the rules permitted the wife to name the bank as a party to any such proceedings, or to seek leave to do so.
  2. His Honour did give “reasons” for the joinder, and they were set out as notations to the order of 21 April 2011 as identified in paragraph 117 above. However, in our view, none of the matters referred to justify a joinder order as opposed to an order in relation to the subpoena that had already issued. Indeed, as we will elaborate on later in these reasons, his reasons comprise unjustified assumptions on the part of the Federal Magistrate. They clearly follow on from inappropriate comments made by the Federal Magistrate during the hearing on 21 April 2011 and which are revealed in the transcript from that hearing set out in paragraphs 113 and 114 above.
  3. There is also no question that the bank was not on notice of the proposed joinder and it did not have the opportunity to either respond to the issues raised by the Federal Magistrate or at the very least make submissions in relation to the proposed joinder before the order was made.
  4. In most circumstances that would raise an issue as to whether there was a denial of natural justice and/or procedural fairness, as claimed by the bank....
  1. The only difficulty with this process that we can see is that it is quite apparent from the transcript of the hearing before his Honour on 21 April 2011 that his Honour was not making an order for joinder with a view to giving the bank the opportunity to attend on the adjourned hearing date to object to the joinder. His Honour was clearly intending that the bank attend to address the issues that his Honour considered arose from the evidence of the husband and his friend Mr B, the documents produced pursuant to the subpoena, and the “evidence” given by Mr S. As referred to earlier his Honour was using the joinder for a collateral purpose, and that is demonstrated by Order 7 of his orders made that day. In our view, such an order was completely unnecessary and inappropriate.
  2. There is also the question of the notations made to his Honour’s orders on 21 April 2011 and which we have set out above. In Ground 8 it is suggested that these are “findings” made by his Honour, and his Honour erred in making them in circumstances where the bank was not represented in Court that day.
  3. We are not necessarily convinced that these notations can be described as “findings”. They are expressed to be his Honour’s reasons for joining the bank, but we would accept that in these reasons his Honour makes a number of assumptions from the evidence he had heard and the documents he had seen which may not be entirely justified. In any event we treat them as raising issues that needed to be addressed by the bank on the adjourned hearing. We confirm though that we do not consider that they are reasons which would justify the joinder of the bank. Rather they comprise issues which should have been dealt with entirely in the context of the subpoena that had been issued.
Their Honours concluded that another Federal Magistrate should hear the matter, noting this portion of transcript:

What I understand is this, as a chronology: [The husband] came into the Richmond branch as a new customer on 1 March and he deposited $200,000 and $50 which was a telephone banking fee of some kind – but $200,000. He opened that account – first, should I say, he opened two accounts, he opened something called a savings account and a basic account. The savings account was the account into which the $200,000 was deposited. The basic account, as I understand, is a very simple and low fee, if not no fee, account. I understand in the vernacular, it’s the sort of account used by pensioners and people on very low incomes because it attracts no fees. The money was deposited; the account was opened in his name; he was the sole signatory and the bank records indicate that.
Then on a number of eight transactions, that money was withdrawn and, as [Counsel for the wife] has pointed out, it was, as the records indicate, over a period of about two weeks in various amounts from $10,000 being the lowest amount to $40,000 being the highest of the amounts – that was a one-off – there was one $40,000 withdrawal. Of itself, the bank, I anticipate would say if – giving evidence, would say there was nothing unusual about that; he is a customer of the bank, he is a sole signatory, he comes in and he withdraws his money and goes away, it’s cash and that’s the end of it.
HIS HONOUR: Well, can I stop and say there’s a few things about it. Firstly, the bank records suggest that they weren’t cash withdrawals, they were transfers to other accounts. So clearly the bank record is wrong.
[MS B]: I will come to that.
HIS HONOUR: I want to know whether it’s deliberately wrong, in the sense that there’s some degree of collusion, because evidence had also been given by [the husband’s] friend and flatmate that he had introduced him to this person who he knew well, who had helped him the past, and I want to know ether the records are mischievously wrong or there is just some horrible accident, either of which is ultimately going to be referred to the Banking Ombudsman to look at.
[MS B]: Your Honour, from – I was just about to come to that.
HIS HONOUR: Second, and more serious – or two further concerns – one which probably isn’t this court’s business but there is no evidence at all to suggest, and it wouldn’t have been the case based on what they are shown as in the record of [the bank], proper accounting in relation to the reporting of those transactions – all being withdrawals and cash of over $10,000 – which is a serious breach of the law by [the bank] and I’m not the Family Court, I’m the Federal Magistrate’s Court, so I have power to deal with those issues and propose to.
Thirdly, and the most important, is having cited the various transaction slips that have been produced, which wouldn’t have been required if they were telephone banking transactions and transfers to accounts which it appears, from what we were told from the evidence of the banking officer, don’t actually exist, the signatures – not one of them actually looks like the one that preceded it. There are a variety of signatures – I’m no handwriting expert, but they sure don’t all look like the same person’s signature.
So I have a real concern that there is either some collusion or a very grave interference with [the husband’s] rights, which had impacted on [the wife’s] and [Counsel for the wife] will certainly be given leave today, if she wants to, to amend her application to seek orders against [the bank] to compensate here, because [the husband] gave evidence he was fully aware of these proceedings, he had been served with the documents and, having been served with them and in total frustration, deliberately or otherwise and with or without collusion by employees of [the bank], has entirely frustrated her claim.
[MS B]: All right. Well, your Honour, if I can take it through in this way. There are eight withdrawals. Four of them - - -
HIS HONOUR: But why hasn’t someone put this in affidavit form because that’s how we work.
[MS B]: Well, your Honour, because [the bank’s] position, primary position is that it has no business being here because no party, at this stage, has sought an order against it and it’s primary application is that it be - - -
(Transcript, 14 June 2011, pages 4-5)
  1. The Federal Magistrate can then be seen as inviting Counsel for the wife to make an application for an order against the bank by saying:
Then give me one moment. [Counsel for the wife], do you want to seek an order against [the bank]?
(Transcript, 14 June 2011, page 5)
  1. Counsel for the wife responded:
I do, your Honour. I want to reserve a right at least to amend the application that should [the bank] – should your Honour make a finding that there has been collusion or whatever, my client would reserve her right to amend the application accordingly to seek some money against – some damages against [the bank] effectively.
(Transcript, 14 June 2011, pages 5-6)
  1. The following exchange then occurred between the Federal Magistrate and Counsel for the bank:
[MS B]: Well, your Honour, if that’s the case, then so be it but we should put the cart before the horse; that is to say, the application against [the bank] should be made. The evidence in support of that application should be put before [the bank] an the court of course and then [the bank] can respond in the light of the application made against it and the evidence as opposed - - -
HIS HONOUR: Why aren’t I entitled to deal with this on the basis [the bank] is in receipt of a subpoena which, on the face of it, it has not complied with, because the documents that are provided are entirely at odds with the oral evidence of an officer from [the bank] who says those documents do not reflect whatsoever what occurred. So there has been no compliance with the subpoena.
[MS B]: Your Honour, I don’t understand, I’m not in a position to respond to your Honour. I didn’t hear what the officer of [the bank] said. So far as my instructions go, the bank has answered the subpoena.
HIS HONOUR: They provided documents purporting to be in answer but I’m then told by the very officer who produced them who then emailed through a number of other documents which showed that those which had been provided to the court are entirely false. Whether maliciously so or otherwise, I really don’t care. They were simply not a proper reflection and could not be a business record because it’s conceded by he who produced them that they are not a proper reflection of the transactions that occurred, therefore there has been no compliance with the subpoena. And I want an explanation in writing and on oath by somebody about it because next time we come back, I can assure you, those seats are all going to be full of media. [The bank] has done something here, whether negligent or malicious, but something has happened that’s removed $200,000 from this man’s hands and removed, as a consequence, $200,000 from [the wife’s] hands.
[MS B]: Well, your Honour, may I say that your Honour may have prejudged the issue in those circumstances if that is your Honour’s attitude.
HIS HONOUR: Not at all. Your bank officer made clear that the documents that were produced purporting to be business records of [the bank] do not reflect at all the reality of what occurred. I am very concerned about that because I have jurisdiction much greater than a Family Court judge. I can deal with financial transaction reporting. I can make a finding right now that [the bank] has breached the law in terms of financial transacting by allowing 10 to 40 thousand cash withdrawals without having reported them. There are consequences for that. I have a power under the Corporations Act to deal with it.
[MS B]: Your Honour, I trust you are not going to make that order today.
HIS HONOUR: Not today. I’m going to give [the bank] the chance to file proper sworn evidence about it.
(Transcript, 14 June 2011, pages 6-7)
  1. Then after he had questioned the solicitor for the husband as to whether the husband would be seeking relief against the bank, which was a question that the solicitor was not in a position to answer, his Honour suggested that the bank had not fully complied with the subpoena in the following exchange:
HIS HONOUR: And if they don’t, there’s nothing produced and there’s a subpoena outstanding and I’m entitled to arrest the managing director of [the bank] right now because they have had three months to comply with the subpoena and have chosen not to, other than to produce documents which mislead the court. And I’m not suggesting that’s deliberate but they do and they’ve got this man arrested and put in custody.
[MS B]: Your Honour, may I take umbrage and say [the bank] did not get [the husband] arrested. As I understand, that was your Honour’s bench warrant.
HIS HONOUR: They did because I made a finding based on accepting the accuracy and validity of the documents produced as business records by [the bank] and accurate faithful representations of the transactions which had occurred to find that [the husband’s] evidence was fanciful and not to be accepted and accordingly he had lied under oath and he was charged with contempt and arrested. If [the bank] had thought to produce the documents which, at my instigation, not [the bank’s], four hours later were produced, and the concession made that the documents we have sent are completely inaccurate, he wouldn’t have been arrested. I detained him, I deprived him, in terms of talking about rights of private citizens, of his right of liberty. He was retained in custody for four hours until that happened caused by the document [the bank] produced which was clearly false. I don’t say false to suggest meaningfully so but it was false and I would have thought it’s a matter of real concern to [the bank] to have produced something that tells me how the hell that happened.
[MS B]: Your Honour, if I can only say again, and I would say this to protect my client’s interests, two things, firstly my client needs to have some considered – some time to consider the evidence brought against it. It has not had the opportunity to read the transcript and all of our so to speak ducks are not in a row. That needs to be done. It’s of no use to the court otherwise and for evidence to be put on which is in a sworn form upon which your Honour can rely, draw inferences and the like and I would secondly simply reiterate, as I must in order to discharge my duty to my client, in saying [the bank] did not cause [the husband] to be arrested. Your Honour, there is a chain of reasoning certainly in your Honour’s decision to issue an arrest warrant to [the husband] but I would simply say, to protect my client’s interests, [the bank] did not cause that to occur.
HIS HONOUR: I didn’t issue an arrest warrant, I convicted him and imprisoned him.
(Transcript, 14 June 2011, pages 8-9)
  1. Later on the same day the following further exchanges occurred between the Federal Magistrate and Counsel for the bank:
[MS B]: Well, your Honour, because your Honour has no evidence of that before you as yet. The bank needs to put on evidence - - -
HIS HONOUR: But I do - - -
[MS B]: - - - as to what has – may I - - -
HIS HONOUR: - - - because the banking officer to whom I spoke emailed to my associate, and they were admitted as exhibits the proceedings, the withdrawal vouchers which then made very clear that they had never been a telephone banking transfer to a term deposit that never existed.
[MS B]: Well, your Honour - - -
HIS HONOUR: They were cash withdrawals over the counter.
[MS B]: Your Honour is going one step further, if I may say, by this: it is no longer a case of [the bank] not answering or answering, as the case may be, a subpoena. Your Honour is now making or moving towards making orders and findings against [the bank]. But circumstances in which those earlier discussions with your Honour – and of course, I am flying in the dark, your Honour, because I wasn’t here and that is the very point. [The bank] was not represented in those proceedings. It was answering a subpoena. It was assisting the court so far as I understand. Your Honour is, may I say, and I don’t with to be in any way disrespectful, but at risk of prejudging [the bank]. Let [the bank] put on - - -
HIS HONOUR: No, I am not going to make any order about - - -
[MS B]: If I may - - -
HIS HONOUR: - - - the apparent inconsistencies. I am going to refer them to the Attorney-General - - -
[MS B]: Well - - -
HIS HONOUR: - - - to be appropriately investigated - - -
[MS B]: Certainly, your Honour has all those - - -
HIS HONOUR: - - - and if he considers it appropriate, prosecute it.
[MS B]: Your Honour has many powers and I wouldn’t suggest for one moment to detract from them. But [the bank] needs to understand the case that is being brought against it, needs to be given the opportunity to put on evidence to explain the situation. It may very well be, your Honour - - -
HIS HONOUR: You have had since 21 April.
[MS B]: - - - that once evidence has been placed before the court and [the bank] has been properly cross-examined and so forth on that evidence, that it may be that the concerns your Honour has are not nearly either as – that may not be founded at all or they may not nearly be as serious as your Honour suggests, in which case, the making of this into a Today Tonight story by allowing the parties to go to the media only prejudices, and may I say, potentially degrades the integrity of the proceedings because at this stage, all of this is untested; and at this stage, it is out of context; and prior to now, [the bank] has not been represented in the proceedings.
HIS HONOUR: But what I do have a context of are two sets of documents provided on the same day which cannot both possibly stand together.
[MS B]: Well, that may be - - -
HIS HONOUR: There is an issue about the integrity not of these proceedings, but of the banking process.
[MS B]: But your Honour, that is a matter of evidence.
HIS HONOUR: I am entitled to receive a business record from [the bank] that I can rely upon, and on the first instance did in sentencing to a period of imprisonment an elderly gentleman who it subsequently transpires may or may not have dementia.
[MS B]: Well, your Honour, that may be – look, all of that may be so or not so.
HIS HONOUR: To then be provided with a document on the same day that says, “Sorry, that is not right.”
[MS B]: Well, your Honour, it may be that there was human error. These things do exist in a big corporation - - -
HIS HONOUR: They do.
[MS B]: - - - as much as they do in any household or it may have been something else.
HIS HONOUR: The problem is I can understand if it was a transaction.
[MS B]: But we need to find out. These are matters of evidence. I’m sorry, your Honour?
HIS HONOUR: If it was a transaction, I would understand. But it is every transaction.
[MS B]: Well, your Honour, I take issue with that and I would say, on the evidence, it is not every transaction.
HIS HONOUR: All right.
[MS B]: But I am not going to give evidence from the bar table because I can feel - - -
HIS HONOUR: It is the majority of them. Telephone banking transfers to a term deposit in [the husband’s] name. He has never used telephone banking, he doesn’t have the facility on his account and he doesn’t have a term deposit.
[MS B]: Well, your Honour, I take issue with two of the – well, in fact, I take issue with two of those things and I agree with the third. But those are matters of evidence.
HIS HONOUR: Good. Well, the bank should have put it on before today. Didn’t need me to make an order about it.
[MS B]: Well, your Honour, before today, there has been no application against the bank. The bank has nothing to answer as yet.
HIS HONOUR: But there is a subpoena which the bank has not complied with. We have visited that issue. The bank cannot produce documents which they then concede are not an accurate business record and say they had complied.
[MS B]: Your Honour, until an application is made against the bank, the bank has nothing to put evidence on about - - -
HIS HONOUR: They have an obligation to comply with a subpoena or explain their inability to do so. They haven’t. As I said, I am happy to arrest the director - - -
[MS B]: Very well, your Honour. I hope you won’t be doing that.
HIS HONOUR: - - - because they haven’t complied.
[MS B]: But perhaps if we can just revert to a timetable for filing evidence.
HIS HONOUR: We have got that.
[MS B]: And the matters can be ventilated.
HIS HONOUR: We have got that.
[MS B]: Thank you.
HIS HONOUR: But we are getting to the bottom in these proceedings of what has gone wrong in this case and I am not trying to prejudge or suggest it is necessarily collusive. I don’t know. But I am dismayed that a bank – and the bank that I bank with – can produce records that are that inaccurate, and then expect that this court is not going to pay attention ...(emphasis added)

The contempt charge

Chief Justice Bryant was just as critical, but on this point. Her Honour stated:

  1. In light of these well established statements of principle and the Rules of the Federal Magistrates Court a fair hearing of the charge of contempt in the face of the Court requires the following steps to be taken:
    • First set out the charge which can be done orally or in writing. However it is essential that the alleged contemnor understands the charge that is being laid.
    • Consider whether it is necessary to take the exceptional step of proceeding to hear the charge or whether the charge should then be adjourned so it can be heard before another judicial officer.
    • To afford the alleged contemnor the opportunity to consider the charge and to adjourn for that purpose if necessary.
    • To give the alleged contemnor the opportunity to state whether he or she pleads guilty or not guilty to the charge.
    • To determine whether the charge requires the alleged contemnor to be held in custody and to hear submissions on the issue.
    • In the event the alleged contemnor pleads not guilty to give him/her the opportunity to present evidence and make submissions relevant to the defence and determination of the charge.
    • Having heard the defence to determine the charge beyond reasonable doubt and if established convict the alleged contemnor.
    • To make an order for punishment if convicted, or discharge if not.
    • If sentencing, to have regard to relevant sentencing principles.
    • To give reasons for the decision to convict and sentence.
  2. It is apparent from the transcript that his Honour failed to comply in almost all respects with the Federal Magistrates Court Rules and with the well established authorities in relation to the manner in which contempt in the face of the Court is to be conducted. However to explain what occurred it is necessary to consider in some detail how the matter unfolded before his Honour.
Her Honour then noted as to the appearance in June, commencing with a passage of transcript with the bank's counsel:

[the bank] did not cause [the husband] to be arrested. Your Honour, there is a chain of reasoning certainly in your Honour’s decision to issue an arrest warrant to [the husband] but I would simply say, to protect my client’s interests, [the bank] did not cause that to occur. HIS HONOUR: I didn’t issue an arrest warrant, I convicted him and imprisoned him. (My emphasis)
  1. That statement by his Honour is startling because as I have previously observed, it is obvious no proper procedure to arrive at a conviction and imprisonment had taken place. However it accords with the order that his Honour made, which had the character of punishment for contempt rather than a remand until the contempt could be heard. If that is so, it needs no further comment to demonstrate the clear and unambiguous failure to comply with the Federal Magistrates Court Rules, established authority and basic tenets of procedural fairness. The admission from his Honour that he had convicted and imprisoned the husband reveals that he failed:
    • to allow the husband to plead to the charge;
    • to afford the husband an opportunity to get advice or be heard;
    • to allow the husband to call evidence in relation to the charge;
    • to make findings on the evidence to determine whether the charge was proven beyond reasonable doubt;
    • to make a formal conviction;
    • to properly sentence;
    • to give reasons.
  2. Judges have significant powers which must be exercised judicially. In particular, the deprivation of the liberty of an individual is something not to be treated lightly by ignoring Rules and procedural fairness or by being used as a weapon with which to threaten a party as a means of seeking to achieve an end.
  3. I am conscious that no appeal by the husband was brought against his asserted conviction (and that his capacity to conduct proceedings still remains uncertain) and that there is no contradicter to support the manner in which the Federal Magistrate conducted the proceedings. Accepting those caveats however the transcript itself makes clear the flaws in the process adopted by the Federal Magistrate.
  4. The wider interests of public confidence in the administration of justice and expectation that judicial officers will not act arbitrarily, has caused me to take the unusual step of commenting on the process adopted by his Honour in relation to the contempt charge against the husband, absent an appeal against his orders.

Family Court rules on counselling privilege

The Full Court of the Family Court has ruled on the scope of counselling privilege as set out in sections 10D and 10E of the Family Law Act. In broad terms, these provisions state that what is said in the type of counselling that is covered (broadly counselling in approved marriage guidance organisations) remains confidential and cannot be used in court proceedings.

In the recent case of Uniting Care and Harkess, the Uniting Church counselling arm argued that a subpoena should be set aside. The Church was successful.

Section 10D

Most of the case concerned sections 10D and 10E. Section 10D provided that what was said in counselling was confidential and could not be used in court, unless the parties taking part in counselling consent to the release of the information, in which case the counsellor "may" release the information. Section 10D(3) of the Family Law Act provides:

(3) A family counsellor may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.(emphasis added)

The difficulty for the Uniting Church was that both parties consented to the release of the information. The Uniting Church argued that "may" meant "may" not "must": in other words even if both parties agreed to the release of information, then there was still a discretion on the part of the counsellor to release information. The Church was successful.

The Full Court found that "may" meant "may", stating:

Section 10D of the Act creates and defines the privilege attaching to communications made to a family counsellor in the conduct of family counselling, and articulates the circumstances in which that privilege may, or must be waived. Given the absence of legislative constraint upon the persons or entities to whom, or to which disclosed communications may be published, failure to observe the legislative imperatives of s 10D could have quite unintended consequences, and potentially adverse implications for the welfare of children referred to in, or connected with such communications.

The Federal Magistrate, in making the order for the production of documents, sought to rely on section 10D(3)(b). The Full Court disapproved:

To the extent that the learned Federal Magistrate purported to rely upon s 10D(3)(b), with respect to him, the facts of this case reveal that it could not be enlivened. The reference to “a court” in s 10D(3) refers only to communications made by “a child under 18”, and not to the parties to the marriage in this case. Section 10D(3)(a) does not refer to, or invoke the intervention of “a court”. That cannot have been inadvertent. If the legislative intention had been that a Court could override the wishes of the adults falling within s 10D(3)(a), or the family counsellor, it would have so provided in the legislation.(emphasis added)

Section 69ZX

This section of the Family Law Act allows the court to seek the production of documents. It was argued that this section overrode section 10D and therefore required the production of the documents. The Full Court rejected that approach:

  1. The Court is not persuaded that s 69ZX purports to empower the Court to require the production of documents in the circumstances of this case. If it does, then it could not in the Court’s view override the clear expressed terms of s 10D of the Act.
  2. The Court is not persuaded that the provisions of s 69ZX are inconsistent and irreconcilable with the provisions of s 10D. As their terms make clear, the sections are directed to quite different issues. Section 69ZX suggests how powers created by other provisions of Part VII might be exercised, rather than conferring powers. However, to the extent that the provisions are, or may be, inconsistent and/or irreconcilable, the presumption that the general provisions of s 69ZX should “give way” to the specific provisions of s 10D should be applied.
Section 10E

This section is familiar to those like me who were familiar with the old section 19N- it in effect reenacts that section. The Full Court referred to the explanatory memorandum, which clearly refers to the effect of section 10E in also applying to State courts:

  1. Currently, the admissibility into evidence of communications and admissions made in family and child counselling and family and child mediation, or in a professional consultation pursuant to a referral by a family and child counsellor or family and child mediator, is addressed by section 19N of the Act.
  2. Section 10E largely recreates section 19N, to the extent that that section relates to family counsellors. Subsection 10E(1) provides that a communication made in family counselling is not admissible in any court or proceedings, in any jurisdiction.
  3. Subsection 10E(1) also provides that a communication made when a professional consultation is being carried out on referral from a family counsellor is also inadmissible in any court or proceedings, in any jurisdiction. In order to ensure that professionals to whom family counsellors make referrals are aware of the inadmissible status of communications made to them, subsection 10E(4) requires the family counsellor to inform them of this fact when making a referral.(emphasis added)
The Full Court accepted that the scope of section 10E applied to "all courts":

The terms of ss 10E(1) and (2) are instructive. It is clear that, unless, and even then only in the circumstances there referred to, admissions or disclosures were made in the terms referred to in s 10E(2)(a) or (b), there is an absolute prohibition, in all courts, on the admissibility of evidence of “anything said, or any admission made, by or in the company of”, in this case, a family counsellor conducting family counselling.(emphasis added)

Family Court disqualifies Magistrate due to perception of bias

The Full Court of the Family Court, in a case called Nadkarni and Nadkarni, has recently ordered that a matter not be before Federal Magistrate Harman, due to perceptions of bias, and set out guidelines for judges as to disqualification.

The wife successfully appealed the refusal by the Federal Magistrate to disqualify himself. His Honour stated, in refusing the application:

I do make clear that there was most certainly a personal and intimate relationship between [the wife’s] lawyer and myself, as well as the business relationship. That terminated in 2006. That is a matter, it would seem, of great interest to the legal profession of Parramatta ... 

It seems surprising that  Federal Magistrate Harman did not excuse himself in light of the history:

  • There had been a great deal of acrimony between  Federal Magistrate Harman and the wife’s solicitor following the wife’s solicitor leaving the legal practice in which they had both worked;
  • Federal Magistrate Harman had  complained about the wife’s solicitor to the Legal Services Commission and the NSW Law Society
  • In 2009, about a year prior to his appointment, Federal Magistrate Harman forwarded an "extraordinary" email denigrating the wife's solicitor to 17 legal practitioners  and alleging an extra-marital affair between them;
  • In 2010  Federal Magistrate Harman made certain remarks in another matter about the wife’s solicitor upon the litigant advising the court that she intended to instruct the wife’s solicitor;
  • In a separate matter in 2010 Federal Magistrate Harman had indicated that he would refer any practitioner who renewed an application for disqualification for disciplinary investigation;
  • In  November 2010 his Honour “rushed” to deliver an ex-tempore judgment in circumstances where the matter was not listed for hearing and did not permit the parties to participate in the hearing.
The Full Court stated:

This is one of the extreme cases where, as a result of the circumstances of the association between the Federal Magistrate and the wife’s solicitor, the Federal Magistrate might not bring an impartial and unprejudiced mind to the resolution of the question he is required to decide.

We would add that once it is accepted that a subsisting marriage, or other ongoing intimate relationship or association between a judicial officer and a lawyer is a disqualifying factor, it must also be accepted that once a marriage or similar relationship or association has broken down, that disqualifying factor must remain, at least for a reasonable period. This must be so because of the acrimony that so often follows such a breakdown, as a lay observer would well understand.

What is a reasonable period for disqualification following the cessation of an intimate relationship will be determined on a case by case basis and having regard to the perceptions of the hypothetical lay observer. In this case the uncomplimentary email sent by the Federal Magistrate only 15 months earlier clearly fell within the time-frame in which a relationship, albeit one of hostility, not closeness, existed.

Mother jailed for child abduction

A Perth mother, who was caught in Adelaide having bleached her hair and that of her son, was jailed for 6 months for his abduction.

The mother had form for abduction. In 2008, after 6 years of litigation,  the mother and father agreed to orders that split the child's care 9 days/5days in favour of the father. Within a month of agreeding to those orders, the mother abducted the son from school. A recovery order was made, and some months later the mother and son were found by police in Melbourne. Orders were made to prevent the mother from approaching the school, removing the chil from his school, or from taking the child from the father's care.The mother was not charged with any offence from this first abduction.

For 11 months after the child was returned to the father's care, the mother had no contact with her son; until one day in November 2009 when she came to her son's school at morning tea, took him and then hid with him in Adelaide. Police found the son hiding in the shower cubicle. Both he and the mother's hair had been bleached, presumably to make it easier to hide.

This time around, the WA Commissioner of Police charged the mother with contempt, for approaching the school, removing the son from school, and for removing the child out of the father's care.

After several adjournments, the trial got underway. The trial judge, Justice Crisford,  found that the mother, who claimed that she was taking her son to protect him from abuse, did not have a reasonable excuse, and that therefore the mother was guilty of the offences. Justice Crisford sentenced the mother to 4 months gaol  for the approaching and removal from school, and 6 months gaol for removal from the father's care.

The mother unsuccessfully appealed the sentence, from what the Full Court of the Family Court stated was a "careful and detailed judgment". The Full Court cited this passage from the trial judge's judgment as to why gaol was appropriate:

...It is my view that the mother must be deterred from any temptation to reoffend. This is addressed to the mother personally, but it is also addressed to the community at large and people who may consider acting in this same manner. The orders of this Court are orders which affect children. They are orders that are made with the best interests of children in mind. The consent orders were changed after the mother removed the child on the first occasion.

There is no doubt that the orders made by the Court and which have been breached here were made by the Court on the basis that it was best for the child due to the circumstances of the earlier abduction that the child live with the mother [sic] and that the mother not be presented with any other opportunity to remove the child. Those orders, as I have said, were made by this Court in the best interests of the child and that is something the community expects from this Court and it is something that this Court must uphold.(emphasis added)


Thursday, 18 August 2011

My firm, Harrington Family Lawyers, has won the 2011 City News Business Achiever Award for Professional Services!
I received confirmation I've been nominated as White Ribbon ambassador of the year. Winner announced 1 September.

Monday, 8 August 2011

High Court: Lawyers' interesting argument is Minister as guardian of children should put their interests first.

Wednesday, 3 August 2011

Woman wins right to store dead man's sperm and bear his child - http://ow.ly/5U5PO

Monday, 1 August 2011

I spent the day with Qld Dept of Communities giving feedback about the draft #domestic violence bill. And again tomorrow.