Evidence Ambush in familycaught as a successful litigation strategy
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?
Familycaught “rule” 48Evidence at hearing generally to be by affidavit
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.
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.
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.)
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.
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