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From The High Court 2

Filed under: General — dpex @ 9:55 pm Wed 2nd August 2006

I guess I should enlighten you all as to the substance of the appeal.

The appeal was lodged on the basis that Judge Mathers’ judgement, in allowing CYP a S78, was wrong in law and fact on four points; the main point being the ‘level’ of the ‘test’ required before the court can issue an interim custody order under S78.

It is noteworthy that in fact my appeal was the first such appeal of this specific nature and so whatever the outcome it will have a profound affect on future FC decisions.

If Asher J finds in my favour then the level of test which Hooker proposed must be much higher than was applied by Judge Mathers.

Notwithstanding the S78 order was an ‘interim’ order, but only one of many ‘interim’ orders available to the FC.

It follows that if my appeal is allowed then the FC will be required, in future, to apply a relatively high test to all interim orders, but most especially those directing contact prohibition.

You will realise an interim order is made prior to the convening of a substantive hearing. All applications and rebuttals are completed in interlocutory form (on the papers). Although the court has the right to request testimony from any of the parties to an action, during the interlocutory phase, I gather they rarely do.

And so the Judge is required to weigh up the potential harm to either partner or children, entirely on the affidavit evidence presented.

And as we all well know, lies are often the currency used.

It is not until the substantive hearing is convened is the ‘evidence’ of all parties subject to judical scrutiny, AKA, cross-examination.

And so, at the interlocutory phase, accuser and appellant have to throw as much mud as their hands can hold in the hope the Judge weighs the mud on either side and finds in favour of X, then provides a judgement in favour (effectively) of the best liar on the papers.

The standard of the test is quite clearly poorly understood and, in fact, as I discovered, is contradicted by two seperate Acts!

But if Asher J finds for my appeal, then the Act which Hooker so dilligently proffered ‘must’ become the standard below which no judgement may fall. That standard will then become…

“Upon the balance of probabilities”, as opposed to the balance of “possibilities”.

The huge difference being, ‘Probability” must be founded upon some corroborated evidence, whereas “Possibility” can be founded upon unsubstantiated opinion.

And remember, this is at the interlocutory phase (before evidence is tested in court). If my appeal is successful (starting praying folks) then that will drive the test of “probability” to an even higher level at the substantive hearing phase .

Maybe I should explain that.

There are three levels of test. Criminal (requiring absolute proof) Civil (requiring about 60% of criminal) FGC (almost anything goes).

During the interlocutory phase the tests are less than those required at an evidential hearing (at all three levels noted above), and based upon some level of prima facie evidence…the principle of the smoking gun found in the hand of the accused is about the starting point for the Criminal Court. The smoking gun found in the imagination of an accuser seems to be the starting point in the Family Court.

But, at some stage, a case moves on to the substantive phase. It is here that the level of tests mentioned above are rigorously applied; which is why so many actual criminals walk free.

But how can one “rigorously” apply a test of opinion?

Imagine that test when a court-appointed shrink is employed.

The shrink says, ‘I find no evidence of…’ and so the affected parties lawyer goes at the shrink like he she had just been found guilty of screwing the Queen’s Corgi.

I discovered, yesterday, from ‘testimony of the various opponent lawyers, that there is a massive shortage of shrinks who are prepared to put themselves up for cross-examination by a determined counsel. And so the the lack of shrinks is further holding up the court process when a judge requires a shrink to intervene.

You see, shrinks are warm, fuzzy folk who live in a world of maybes. They often presume they can look clearly into the human mind and come away with some reasonable conclusion.
But in fact, they are statisticians in drag who have about as much connection with the human mind as I have with the mind of God.

But those poor bugger-shrinks who can’t make a partially honest living from convincing the hard-done-by that their services are valuable, gravitate toward court-appointed work; hoping all the while they might just survive yet another savaging from an intelligent counsel.

They’re abit like lawyers who take court appointments at way less fee-levels than are demanded by the competent…The Hookers of the world. So they grub around, attempting to maintain some sense of self-respect, attained mainly from remaining in denial of their own incompetence to hack it in the real world.

And so these ‘hacks’ hack up and spew out to the court that which their masters (often CYP) want the court to hear.

In some cultures, suh folk are left behind in the snow with a small bottle of water and some trinket designed to appease the Gods when they arrive.

I digress. But it’s all symptomatic of the sickness which pervades the entire FC process.

Currently the FC “test” at both interlocutory and substantive phases appears to be based upon the balance of “possibilities”.

One could liken that to asking, ‘Could a man with a knife in his draw, given sufficient inducement, use that knife to harm another.’ That the man has such a knife could suggest, on the balance of possibilities, that he could use the knife to harm.

The much more stringent test of “probability” requires the court to find some hard evidence that the man does, in fact, intend to use the knife because……And the ‘because’ must be corroborated.

If my appeal is succesful then “Possibility” will automatically be elevated to “probability” and that is a way harder test.

This will also have significant affect on CYP gaining, or even filing for ex-parte applications, as opposed to 3-day notice hearings. And that is certainly a tubby wee game the girls play which must be stopped.

So that’s the good side. Now the bad side.

If Asher J rejects my appeal then the floodgates will open for the FC to be pressured into making interim orders on even more specious grounds than are currently in vogue. Because, in future, counsel will be able to argue that Ahser J, in CYP-V-DP, that the test theshold exists almost entirely in the opinion of the judge and that his opinion can ‘reasonably’ can be garnered upon his ‘perception’ of the so-called evidence before him.

This, of course, will allow the sanctimonious of the world, the Calire Ryans, to justify even more, their destruction of families because their end-game (winning) will be so much easier.

Thus we come full circle. At the intelocutory level, the better liar will win the interim proceedings and, probably, the substantive.

And so, my appeal will either do a great service for reasonably aggrieved appellants, or do the move toward greater justice an incalculable harm.

I cannot help but think that Asher J’s very fine mind will be weighing up these very matters.

I realised the gravity of the outcomes only this afternoon. But had I realised prior to the appeal I would still have proceeded because the health, happiness, and wellbeing of the child involved is more important to me than life itself.

And so, you see, before we kill all the lawyers (Henry V1) who play in this mercurial, and clearly quite poorly legislated land of the FC, let’s at least wait to see if Hooker has managed to lift the bar.

If he has, then great steps will have been made in the war against prejudice, and the unacceptably low tests applied to FC decisions.

If he hasn’t? Oh well. Shit happens. One of us…Me probably, will just have to try harder.

The FGC happens on Friday. That should prove to be an ‘interesting’ experience.

As Jim would say, “Onward!’



  1. Dear David,
    If the system fails you, or you get a neutral decision, will you give up on the court system? Or will you go on & on until it breaks you? I don’t want another man lost going his own way until he busts! I Hope you are prepared for the negative.

    Comment by Intrepid — Thu 3rd August 2006 @ 12:48 am

  2. it is very intresting

    Comment by danies — Thu 3rd August 2006 @ 4:37 am

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