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Mon 1st October 2007

Evidence Ambush in familycaught as a successful litigation strategy

Filed under: General — MurrayBacon @ 10:09 pm

I have heard 5 customers of the familycaught complain about evidence ambush in familycaught, when fresh evidence was introduced verbally at a hearing, without being previously introduced in affidavits (that were served on all parties prior to the hearing).

I have given the name “evidence ambush”, as each of the people that complained used different descriptions for this legal strategy. Having a name, allows different people’s experiences to be linked together, for what is one legal strategy.

The most important issue should be – has this family and it’s relationships been protected?
It is only through protecting integrity and honesty – to foster a supportive, constructive relationship between the parents, that the children can be given the best life by their parents.

I will not discuss “Agenda Ambush” at this time, this is an entire topic in itself and it is covered by different familycaught rules.

Some people fumed silently in anger, some protested to the judge, one lawyer protested to the judge but his objection was simply ignored by the “judge”. One other customer admitted that s/he had accidentally successfully used evidence ambush against CYFs, without realising at the time what s/he was doing. The CYFs lawyer protested vehemently, but was overruled by the “judge”.

With respect to natural justice, it would generally be fair and reasonable to either adjourn the hearing for sufficient time to allow the other party to understand the issues and obtain any relevant evidence to rebut, or to order that the hearing continue, without the ambush evidence being admitted.

A similar situation is when one party forgets to attend a hearing. usually the hearing will be adjourned, so that all affected parties can be in attendance.

Why then did the “judge” take the different course of admitting the ambush evidence from one party, after the other party had laid their cards on the table in affidavits served prior to the hearing and requiring the hearing to continue without any time adjournment at all?
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Familycaught “rule” 48Evidence at hearing generally to be by affidavit

From: www.legislation.co.nz
Tab: Regulations – familycaught rules
(1)Evidence given in support of a party’s case at any hearing of an application must be given by affidavit.
2)Subclause (1) does not apply if the Court, on its own initiative or on an interlocutory application for the purpose, directs that some or all of that evidence may be given orally.
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familycaught “rule” 152Admission of documents discovered
(1)If an affidavit of documents is served on a party and the party is permitted to inspect a document specified in the affidavit, the following admissions by the party inspecting the document in favour of the party serving the affidavit must have effect unless the Court orders otherwise:
(a)that the document, if described in the affidavit as an original document, is an original document and was printed, written, signed, or executed as it purports to have been:
(b)that the document, if described in the affidavit as a copy, is a true copy.
(2)However, a party must not be treated as having made an admission in relation to a document under subclause (1) if the party–
(a)has denied in a document filed in the Court the authenticity of the document; or
(b)within 14 days of inspecting the document, serves on the party giving inspection a notice that the party disputes the authenticity of the document.
(3)If a document listed in an affidavit of documents is shown to be in the possession or power of the party serving the affidavit and that party has not claimed privilege in respect of the document, the party on whom the affidavit was served may give secondary evidence about the document and its contents if the party who served the affidavit does not produce the document on the request of the party on whom the document was served.
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The rules listed above are clearly intended to foster cards on the table negotiating and dispute resolution. When “judges” override these rules, then in general we can expect a breach of justice to be the result.

Breach of natural justice in this situation has stemmed from a “judge” using their discretion, to go against the “must” stated in the familycaught rule 48(1).

What can you do to protect your children from the consequences of evidence ambush?
Before you go into familycaught, put some thought into the issues you have NOT addressed?
This is not easy – it requires a VERY complete knowledge of the real life situation and ALL of the related legal issues.
The issues open to dispute in the court hearing should be cut down before the hearing by use of Rule138 Notice to admit facts, though again this does require good knowledge of the legal territory.
Present your evidence in such a way, that it is clear to the “judge” that you are laying down a strong path of evidence, to protect your practical capability to make a successful appeal. In the face of this, the “judge” will usually back down. (Many paid legal workers can’t do this successfully, so please don’t take for granted that you can do it easily.)
Don’t fall for the “I have read the affidavits, so you don’t have to go through presenting all of your witnesses and evidence”, this cuts off your later access to an appeal and the “judge” saying this knows it.
(Consider living outside of NZ with your children.)
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familycaught “rule” 3Purpose of these rules
(1)The purpose of these rules is to make it possible for proceedings in Family Courts to be dealt with–
(a)as fairly, inexpensively, simply, and speedily as is consistent with justice; and
(b)in such a way as to avoid unnecessary formality; and
(c)in harmony with the purpose and spirit of the family law Acts under which the proceedings arise.
(2)These rules must be read in the light of their purpose.
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If judges have such a degree of freedom to breach the familycaught rules, then is it worth publishing these as “rules”?
It seems that publishing these “rules” is really misleading the public, not informing the public. (The degree of meddling with these “rules” also suggests that either they should be accepted as rules and be relatively stable, or abandoned altogether. Legal workers profit from chaos, low quality legislation and misinformation, not from an orderly legal system.)

The essential issue underlying these experiences in familycaught, is that these breaches of natural justice will obviously continue, while NZ permits the use of people lacking any professional level judicial training as judges (they are just jumped up lawyers).

A closely related issue is that the familycaught essentially attempts to operate without any form of quality control. All constructive and productive industries in NZ use the concepts of quality control, to maintain quality (which otherwise always degenerates into chaos and destruction) and to enhance quality of production or service. These industries listen carefully to customer complaints. Even if the complaints are not stated in the proper technical language, the issues will be addressed and lessons learned – so that improvements can be made. Defective machines or staff will be identified and repaired or retrained. If the retraining was unsuccessful, the staff will be diverted to other duties where they can perform competently. In NZ incompetent “judges” are just left to keep on turning out defective judgments. Their identity is hidden from the public – to maintain public confidence in the court system!

By contrast, the entire NZ court system hides its complaints handling behind a rubbish tin and the judicial complaints commissioner. He just sends out a standard letter that “you should have appealed”. This line is self serving for the legal workers, as it offers precious little hope of addressing the issues complained of – at any cost – let alone cost effectively. By failing to address customer concerns, in the public eye the legal industry has abandoned any claim of integrity.

By refusing to listen to complainants, the familycaught’s service to the public is just “Controlled Flight Into Terrain”. Before we walk into the court room, we know that the “judge” will not have professional training to to the job, thus they are essentially programmed to be unable to reliably do their job. Through their greed for cash, they are milking their customers without providing service with qualities of human understanding, understanding family economics or protecting children.

Books about assessing risk emphasize that you must first gather the raw evidence from files and check the completeness of the data. If any relevant data is missing, then track down the missing information, you don’t just guess or wing it without the necessary data. Then risk is assessed from the total information. Have you ever seen a familycaught “judge” familiar with a file? I have more often heard them state “I haven’t read the file”, as if this is a claim to greatness! This all reflects their cash greed, laziness and lack of competence to weigh evidence successfully.

Consider the years of patronage that the familycaught gave to Kay Skelton, now awaiting trial for child abduction. If the familycaught had weighed the evidence before its nose, would it have taken so many years to hand the custody of the child to the father? By extending such tolerance of ongoing breaches of “familycaught orders”, the familycaught led to Kay Skelton’s legal predicament. I am confident that she would not be facing abduction charges, if the familycaught had acted reasonably quickly to stem her breaches of “familycaught orders”.

Lets put pressure onto our Parliamentarians, to require that judicial training is made available in NZ and that only people with the necessary qualifications, integrity and experience are appointed as Family Court judges. People should be able to have confidence that they will get a competent and fair hearing at the Family Court. Doing this will protect our children and save all of us money. We just want a sensible life for our families.

While the familycaught “judges” are erratic and unreliable, children are being brought up in more impoverished conditions than necessary, due to wastage of resources by dishonest/psychotic parents and also children are not being protected from risk – as these judges have zero useful skills at weighing evidence and assessing the risks that these children are exposed to.

I hope that by clarifying these issues, people can make blunt clear complaints about hearings where these principles of natural justice have so obviously been breached. When you make such a complaint to the judicial complaints hider, always copy it in full to your local Member of Parliament. Parliamentarians are the only people who have the power to investigate and repair the Family Court. Lets pressure them to have the willingness to do this job.
Best wishes, MurrayBacon

9 Responses to “Evidence Ambush in familycaught as a successful litigation strategy”

  1. Benjamin Easton says:

    Murray,

    you are dealing directly with the issues that are presently being placed before a court. Although the specific is not the rules on affidavits, the equivalent circumstances are more directly accessible to applications by lawyers, through interlocutory and without notice applications. It is when you get to the point of Rule 3, where I have to disagree and ask you to check up on the processes that exist to discount your account after that point. Check General Matters, and specifically Rule 13 (1) as the counter to your argument – finding the territory of new jurisdiction in hope that I may be right of Rule 17. Grand post!

  2. Benjamin Easton says:

    It’s been 5 days now Murray since you posted this comment and I replied. In between I have sent you case details of one of the two cases I am presently working in. You have replied to that mail where the value provided is both welcome and profound. Both cases, because they deal specifically with neglected practice to compete with domestic violence, as inconsistent with the Domestic Violence Act 1995, as well as inconsistent with rule 13 (1) about practice being consistent to the Family Court Rules 2002, will benefit directly if the points to which you complain in the original post are infact accurate. Already in my earlier comment of reply, I have argued to part of your arguement suggesting that the focus to complain belongs first with the client’s lawyer. The Judge is not bound to act in the way I think you seem to want the Judge to act. It is on this point that I reply again concurring with the focus of what you wish to achieve but suggesting that in the present frame of Court processes, this optimal return of Judges being more empowered and closer to the circumstances is unobtainable. Judges are powerful. Their value in the system to have it function in society to how we are accustomed, would seem to want and as well are dependent is that they cannot be forced. Judges are the boss. As you, I am sure concur as the base principle of your comments, most people from broken relationships where everthing of value to which they life subscribe is vulnerable, if not damaged, if not broken. Judges must see past this emotive state.

    What I suggest is that you are accurate and the system as it has been built and presently for extraordinary cost and energy being protected, is acting quite improperly and I allege is incontestably wrong. These terms, of “right” and “wrong” are unusual terms over this kind of situation respondent in social adjudication, but that is exactly why they are so valid. If we get social adjudication wrong then invariably what we are going to do is cripple our society.

    The Family Court is the wrong jurisdiction to use where it responds in a manner with professional and financial return to a social problem. The way we reach the Court, where a judge in the end judges, a lawyer is paid and a professional is contracted to the Court in order to protect the best interests of the child is and has been for so long mind numbingly cruel. The fathers suicides, the murders, the beatings and necessity for more intervention after the Court has become involved, for so long has not been investigated in any form where its involvement for these behaviours could be concluded into its contributory component. You are right because what we need are our most elite, in this case the judges, to be closer to the problem – to have more familiarity with what is going on and who has the real needs. In the recent scraps that we have had with the Courts, and I would call them scraps where our energy and work has forced the reviews on the way the proceedings in family law Acts are factored into family law, Judge Boshier has made it very clear that he will protect the domain of the Court as it has been established. Some of this is just puff and nonsense, but you have to come to expect that from a Judge where he has to convince eveybody that He is in control. I say some as I should be required to back my comment of “puff and nonsense”, because as I have written earlier I am aware of a programme being developed into the proceedings that gives the child a more direct as supported voice. This idea is likely already to be under some stress for the manipulation of ardent feminist idealogues who demand to protect their foundations that all men are ugly and that only they have the mirror to show those men what ugly really looks like. But I think the children are tougher than this and eventually if the programme as you suggest is established to the principles of natural justice they should be OK.

    That the Bench may be easing itself into a closer relationship with humans, (although we are likely to agree that men are still the most obvious to take the direct and brutal hits from the Court), from your comments, there are two final points. The first is most important and directly in contempt with the judges acting as they act demand that the values of adjudication remain predominant over social ad family reform, and that is “what is natural justice?”. The answer is important and as best I can describe breaks into two parts. Together the two simply mean being “fair”. In the first part you can expect to be able to present your evidence and have it presented to you before compiling your defence. The second is that whoever presides over you must be impartial. It is on this point that I agree with you comprehensively and have done all of my jail time around this point. The Bench is independent. The Judicial Conduct Commissioner only deals with behaviour. The Human Rights Commission cannot infiltrate discriiminatory behaviours and no other authority has a right of access to mitigate the practices of the judiciary where it is linked to case law. Even parliament is restricted in this. And as we know it costs a lot to challenge by way of appeal. So my argument in reply, concurring with part of your original comment and post, where I am attempting to boil this all down into a legal question or two to be placed before parliament and the judiciary in a jurisdiction in some manner of direct access to authority, beyond any capacity of manipulative controls those that could be exercised if any corruption did in the end exist, (just pretend that I am a deluded fool): is that we not only need to decloak the judges of the Family Court – but that they need to be trained and particularly competent in the exercise of social equity.

    There is another point though – which is the all important point in the end – what are the public going to do about a jurisdiction that directly damages children because it demands that it must first get paid in order best to provide for their interests?

    All the best,
    Benjamin.

  3. MurrayBacon says:

    Another exciting type of evidence ambush is the “affidavit submitted at the last moment”, late on the afternoon before hearing day, or even on the morning of the hearing. Faced with this trick, a judge could — same as the previous cases — refuse to admit the affidavit, or could allow an adjournment, to allow the other party to study and if necessary, produce evidence in rebuttal. You guessed it, “judge” green 6th October 1992 just after 10am, admitted the affidavit without even notifying me that it even existed! The hearing carried on, with me wondering “there seems to be some communication between Christine and the judge, but I haven’t seen it or heard it!”. If you have had this feeling too, then you are probably right.

    The only way to combat these “legal strategies”, is to look at the court file, every two days, leading up to a hearing. In particular, mid afternoon before the hearing AND on the morning before the hearing. If the court registrar says the file is “unavailable”, mention that there is a hearing the next day and that you would like them to look around the office for it. If they refuse, I suggest that you submit a letter expressing your concerns and explaining the principles of natural justice and how these are “protected” in the Family Court Rules!
    I admit that at that time, I did not know about the need to check on your familycaught file in the caught. I only searched the file, about 5 years later. You can imagine how I felt, when I discovered what had actually gone on.
    The Family Court will only improve when people show that they understand what has gone on and that breaches of legislation/rules have occurred and are important. In the meantime, we just have to be a little relaxed, if we take it too seriously, then we just drive ourselves insane at the horror of it all. So — just treat the familycaught as a sick kind of gamble, that you are prepared to win or lose.
    Best wishes, MurrayBacon

  4. Benjamin Easton says:

    Like the rules of anything though – the rules say how the game is played. So far, there are very few members of the public that I know who have contact with the Court who know what the rules say. If you know the rules then you know how to play.

  5. MurrayBacon says:

    Ben, the point I am trying to make is that even if you know the FamilyCaught Rules, you are really no better off – as the “judges” don’t follow them anyway. Boshier himself (Family Law Conference 1991 page 161 truth or proof fc doesn’t need rules of evidence) recommended NOT following the rules for affidavits and that they were just a waste of court time. He even said that dignity of court process is more important than following rules of evidence!
    It seems that he sees familycaught as theatre, where clothing matters more than gathering the best quality evidence available and weighing it with real professional skill? Boshier’s professionalism related to acting skills more than judicial – but remember that he is the best familycaught judge in NZ, since Judge Inglis retired.
    This is why I warn people who are being forced to deal with familycaught, don’t take it seriosly!
    Dr Rob Moody said essentially the same things about the High Court, but with dry humour.
    I am trying to protect the lives of people who are being forced to deal with familycaught, thus I have to communicate in blunter language.
    Cheers, MurrayBacon.

  6. Benjamin Easton says:

    Then I concede to the evidence you present but essentially for your comments to the submission of evidence through affidavits. As I have already said, ny issues raised are more directly angled at interlocutory and ex-parte orders and indicated that there is a direct challenge in on Court relative to this detail.

    If I consider your statement though as I remember the FC rules on reading about affidavits some time ago: Any Family Court evidence is submissable and only by judicial discretion. This isn’t inconsistent with the rules then as you suggest. It is a rule. It is the overarching rule.

    So if I am right in this and your comment is to say it isn’t following the rules to receive or not receive evidence then you are wrong and I am right. How this practice is undertaken then is a completely different issue and I think I have already answered this previously. I thought you were saying primarily that the judges are playing games on where and how that evidence is submitted. Now that is a different story and I ask you to go to Rule 13. Then for anyone who has been astute enough to read and practice the rules, an Interlocutory Application can be put in to contest the judges ruling. If held then as I suggest the case I am looking at should progress, the provisions of rule 13 to rule 17 take effect. Hopefully, I think the courts would agree that we never get to rule 17. Additional to this, if any reader is following the conversation I would am very interested to read any court history on rule 17. In my reading so far it is a jurisdiction of its own regard and I doubt it has ever been accessed before.

    Now the point here Murray is that if I am right and your comments have not yet calculated what I said originally then I ask you to revisit what I have said. The problem is with the lawyers. The problem would then likely be that the lawyers are frightened of the judges, or more to the point their piers and justification to challenge a judge if they were employed by an employer.

    I doubt it is common that a lawyer steps up from within the Court ansd says hang on a minute your honour I request a judicial conference to question your objective behaviour in these proceedings. You tell me.

    So: Do your comments not accept that if the practice of receiving an affidavit by a judge (and not for its content) that this inconsistent with the objects of the rules, that this invokes the jurisdiction of rule 13 to rule 17?

    In Wellington tomorrow: will answer your reply from there.

    Benjamin.

  7. Benjamin Easton says:

    This is timely and I will be able to correlate and update from this miscellaneous post, to what is presently before the Court after Monday. “Evidence Ambush” is a most interesting turn of phrase where the truth I thought might be little bit closer to the effect I am trying to achieve. Ambush indeed: where the practitioners in family law force people to sell their primary assets so that justice can be seen to be done.

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