When Acts Done For Political Expedience Amount To Breaking The Law

Accessing and distributing restricted child support documents and information of now Independent MP Billy Gordon and his former partner, Kristy Peckham, for political expedience has become a very serious issue.

On Friday 24 April 2015 it was reported that:

• A few hours before the A Current Affair interview [on Thursday 23 April 2015], the Liberal National Party (“LNP”) handed documents to journalists detailing some of [now independent MP] Mr [Billy] Gordon's child support payments and naming his two young children.

(News)

• The Queensland Opposition has attempted to divert attention away from its release of confidential child support documents relating to Billy Gordon, instead pointing the finger at the Premier and the questions it says she still needs to answer.
• Deputy Opposition Leader John-Paul Langbroek repeatedly told journalists the issue wasn't that the LNP had released child support documents, which revealed Mr Gordon's children's names and were potentially a breach of the law.
• The documents partially shown on the program and released by the LNP to the media on Thursday ahead of its airing, show Mr Gordon is potentially once again in arrears, for more than $700.

(Brisbane Times)

On Monday 27 April 2015 it was reported that:

• Mr Springborg today defended the release by his office of copies of Mr Gordon's former partner's child support statements to journalists.
• He said the information was for background, not publication.
• "Those documents were distributed to actually indicate quite clearly that this matter, which Mr Gordon and the Premier had said had been dealt with, was not dealt with," Mr Springborg said.
• "They were distributed by way of background information, with no expectation that they were being published, and that was the information that was given to the [media] gallery at the time."

(ABC News) (The Guardian)

Comment
If the reports are accurate the Liberal National Party may be in some difficulty. The release of documents to journalists detailing some of the child support payments of Mr Gordon and naming his two (2) young children would appear to breach section 150AA(1) of the Child Support (Assessment) Act 1989 (Cth). The Penalty for such a breach is Imprisonment for up to one (1) year.

The subject revelation could hardly be said to be without knowledge as there was controversy previously about the revelations of the criminal history of Mr Gordon and that such behaviour might be unlawful. Before that fellow LNP member Mal Brough courted significant controversy when he admitted to receiving the diary of Peter Slipper, the then Speaker of the Federal Parliament and his then political rival, from James Ashby. A police enquiry was then called for in respect of Mr Brough and his behaviour.

Mr Springborg seems to admit the subject communication of relevant information behaviour.  Thus far he has demonstrated no basis in connection with relevant Child Support proceedings to be in possession of the documents and then to communicate relevant information in respect of them. Prima facie it would appear an offence has been committed and a confession to that offence has been made, albeit in an attempt to distance himself from the allegedly offending behaviour. On that basis there is substance in the call by Mr Gordon for the police to investigate the subject communication of relevant information.

Prosecution
Prosecutions in this field are not without precedent. On Monday 24 March 2014 the owner of The Courier-Mail newspaper, Queensland Newspapers, was sentenced in the District Court in Brisbane for breaching restrictions on publishing court proceedings. In 2012 it identified a family involved in a Family Court parenting dispute by publishing names and photographs of the mother and four (4) children involved.

The Court fined the newspaper $120,000 and allowed it one (1) month to pay the fine.

The Rule of Law
A significant issue in the 2014 election was the attack upon the Rule of Law by the LNP government during its term in office. The approach of the LNP to the Billy Gordon matter can be said to be a continuation of that attack. It speaks to the judgment of the LNP that it would persist with an approach found by the electorate to be repugnant. It is also curious why the LNP thinks it should be entitled to breach the law and in turn benefit from those breaches to achieve a new election and possibly return to government.

Conclusion
It is disturbing that the LNP leader can access restricted documents and distribute them as he sees fit. His explanation for so doing is not satisfactory and his behaviour and that of his party is akin to the tail trying to wag the dog.

It should not be normal practice for Queensland politicians to access any confidential data they wish. They should be subject to the law and the Rule of Law in the same way as the rest of the community.

Whilst in the circumstances the release of the documents in question on this occasion might have been attendant with more circumspection, that they were not is the responsibility of the LNP and Mr Springborg. Both have sought to pursue the Billy Gordon matter for all the political expedience they can achieve from it. That motivation is another relevant consideration when assessing the subject access to and distribution of the documents and information in question.

Prima facie an offence appears to have been committed and, in the explanation for the behaviour, Mr Springborg appears to admit to both the behaviour and the offence. There is also an issue as to public confidence in both good governance and the police. The matter is entitled to be properly investigated and on the material to hand to date, there is an understandable expectation for Mr Springborg to be prosecuted for breaching section 150AA(1) of the Child Support (Assessment) Act 1989 (Cth).

Endorsements and Credibility

Using a cross-examination technique in relation to a peripheral lie, we can see the impact inconsistent statements made as a result of a paid blind endorsement can have on the reputation of the maker of those inconsistent statements.

The Utility of a Peripheral Lie
In my cross-examination article I discussed how a peripheral lie can be used to challenge the credibility of a witness:
“A provable peripheral lie is a good friend when you are seeking to dismantle the credibility of a witness. If the witness is prepared to lie about something unimportant, then they are definitely prepared to lie about the crucial matters of the case, is how the argument goes.”

Inconsistent Statements
In Bilal & Omar [2015] FamCAFC 30 (27 February 2015) relevantly Bryant CJ, Murphy and Loughnan JJ at para [43] considered the issue of credibility of the wife.

• The wife’s affidavit deposes, and the solicitor’s certificate attests, that the wife has received advice of a certain kind.
• In defending the husband’s case, the wife clearly asserted in the witness box a position entirely inconsistent with that.
• Put simply, the wife put squarely into issue whether the advice required under s 90G had in fact been given.

At para [54] the Court agreed with the contentions of the husband that on the evidence adverse credit findings in respect of the wife were appropriate.

Blind Endorsements
ABC science commentator Dr Karl Kruszelnicki (“Dr Karl”) agreed to and did appear in a number of advertisements promoting the Intergenerational Report (“IGR”) of the Federal Government. He subsequently acknowledged he was only able to read parts of that Report before he agreed to the advertisements as the rest of the Report was under embargo by the Federal Government. The advertisements appeared without a disclosure that Dr Karl was endorsing a Report he had not read.

Once the public became aware of the contents of the Report, that it was a flawed, partisan political document, which Dr Karl acknowledged “largely ignores the impact of climate change”, there was an outcry as to the aforementioned endorsement and promotion by Dr Karl.

Dr Karl then sought to distance himself from his prior support for and endorsement of the Report.

Commentary
Dr Karl knew or ought to have known the significance of accepting an engagement to endorse a Report which he had not read. His reputation, such as it was, was sought to lend credence to the Report. Endorsing something he had not read seems to be a pretty significant error of judgment on his part. Endorse the principles you say the Report promotes, if you wish, but do not endorse the Report without reading it.

His change of position, contrition and decision “to donate any moneys received from the IGR campaign to needy Government schools” can be said to be hollow, as it only came after significant public disquiet was expressed about his endorsement of the IGR. That change of position etc can be said to be not an act he initiated.

Whilst his actions can be said to have the benefit of now focussing attention on the problems with the IGR, the damage his reputation has suffered can also be said to be significant. The lack of disclosure of the fact that Dr Karl had not read the Report he was apparently endorsing is a relevant issue. Paid blind endorsements are not worth much in terms of credibility. Integrity free endorsements should be accompanied by an appropriate warning

The impact of the aforementioned blind endorsement upon his reputation is significant. Whatever Dr Karl may purport to say now can be said to be tainted by his poor judgment and lack of research attendant with his paid endorsement of the IGR. His apparently afterthought-inspired contrition will do little to redeem his reputation in the eyes of some people.

When you look at his history and discover that in 2007 he made a statement about climate change that he subsequently admitted was wrong, his credibility takes a further battering.

His most recent foray into commentary should have been informed by his earlier experiences.

In Lee & Anor v State of Queensland [2015] QDC 83 McGill SC DCJ at para [43] found that he was not prepared to accept the evidence of the Plaintiff Mr Swindles “as reliable unless it was independently supported, or inherently probable”. Using the Lee case as a guide, independent corroboration of the contention Dr Karl seeks to make may be required in future before some people are prepared to accept that contention.

The fact that by his actions Dr Karl has educated people as to:

• the flaws in the IGR;
• the process by which the government sought to promote it; and
• the damage a paid blind endorsement without any accompanying disclosure can do to a reputation,

may be little consolation to him as he reflects upon putting his reputation in jeopardy and in circumstances which were entirely avoidable.

Blinded By The Light

Might Get Fooled Again
As I reflected upon my To Thine Own Self Be True piece I recalled a female client, who had separated from the father of their child and formed a romantic relationship with a new man. She saw fit to relocate from the father of the child and do so in circumstances that incurred the wrath of the Federal Magistrate hearing the trial. It was not surprising to hear the mother list a number of complaints of the personality and make up of the father. That is often standard fare in these matters.

What was of more interest to me was that the new man in her life was essentially a carbon copy of the man he replaced, with the exception that he appeared to be a nicer, more considerate version. However the writing was on the wall that the mother was in for a similar future with the new man to that she had with the former partner, if the new man did not maintain his considerate disposition. He was a man without any legal training whatsoever, but that did not stop him from informing my solicitor and I that he could give crucial evidence at the trial and it was evidence that would definitely support the case of the mother.

He was utterly wrong in that assessment, but that was not something which occurred to him. I politely told him the case did not need the benefit of his evidence and insofar as the case is concerned, that is where the matter ended. However as to my overall view of the case, his controlling and overbearing personality was of some concern to me. The mother may very well have been making the same mistake the second time as she made the first time and that may not be a good outcome for the children of the relationships.

Starstruck
Rarely are litigants attuned to the nuances of cross-examination. They often need to learn that the answers they give to questions posed to them can reveal aspects of them and their lives that they would rather not reveal. The answers given and the revelations made in relation to one line of enquiry can end up supporting another, seemingly unrelated, line of enquiry.

More recently a mother consulted me for advice. There was clearly a new man in her life, although she refused to characterise him as her lover. She certainly refused to make a public declaration that she and the new man were in a romantic relationship. Nevertheless her answers and behaviour revealed the strong influence on her life that this new man was achieving. From the information the mother provided it could be clearly seen that the new man was a vain, self-promoter, who was primarily interested in his own advancement in life. Others were merely an adjunct to it and to him. He had plenty of opinions and he was keen to share them. In so doing the ultimate cause he promoted was to make himself the centre of attention.

In conversation with the mother I often heard her reveal details of her interaction with the new man. The impact he had had upon her life was significant, perhaps even profound. Although it is difficult to say that such impact was ultimately positive. The effect of that impact was something she appeared to have significantly undervalued as a relevant issue.

Whilst possessed of many opinions and not being shy about sharing them, his knowledge was deficient in terms of preparing and presenting family law litigation successfully to courts.  It was not surprising to hear the mother reveal that in conversation with the new man, he was highly critical of me and the advice I had provided her. It was sad to see the extent to which she was starstruck by him. Taking his advice over mine was not going to enhance her litigation position. In fact, it was going to harm it. Ultimately, all he cared about was himself.

What was missing from their interaction was a dispassionate view of their relationship and its impact. The new man lacked the legal knowledge, skills and acumen required to enable the mother to properly advance her litigation and make fully informed decisions in respect of it. That obvious deficiency on his part was manifested acutely when the mother continued to consult me for legal advice. Legal advice the mother could not obtain anywhere else, due to the unique knowledge and skill she acknowledged that I possessed.

His actions highlighted his insecurity and brittle self-confidence. Objectively assessing the actions of the mother, she had replaced one poor choice for a partner with another. Using history as a guide, the future of the new relationship is in real danger of traversing the same path as the old relationship. That is hardly likely to be comforting for the children of her relationships.

The Impact of The Seduction
Those men do not act in the best interests of the children or anyone else, they act in their own best interests. Their charm offensive is invariably destructive for the women and often also for the children. That involvement with those men may lead to destructive or self-destructive behaviour on the part of the women is of little concern to them. It is their own power they wish to maintain. Their seduction of the women is based on maintaining their power.

As lawyers, we can advise these women, however they become very skilled at hearing only what they wish to hear and criticism of these men often falls on deaf ears. A different outcome might occur, if the criticism is able to be agitated within the litigation. However those men try to keep their bad qualities out of any relevant litigation, so that they are not the subject of any scrutiny. That includes manipulation of the relevant women to preclude any adverse comment about them.

Ultimately, as I said in naming my short stories blog, you can lead a horse to water, but you cannot make it drink.

Cross-Examination: Understanding and Constructing The Complexities of The Vibe

Cross-examination is a fascinating endeavour. No two people do it the same and executing it effectively invariably takes time and practice.  Refining the skill involves patience, insight and reflection. Understanding the subject material is crucial, as is appreciating the outcome sought to be achieved by the cross-examination.

Instructions of the client will form a general guide as to what approach ought be taken, but they are not the only consideration. Further enquiries and / or investigations may be required and information gained from those enquiries or investigations may suggest that a different approach to the one apparently proposed by the client is prudent.  That new information may also require further legal advice to be given and that can also change the approach the cross-examination ought take.

Sometimes when you are seemingly not thinking about a case, something about it appears in your thoughts and it causes you to revisit the case and your approach to it. A case had occupied my thoughts for some time. It involved a complex matrix of facts, including:

• Whether the parties had disclosed all relevant material;
• Whether the lawyers retained had made proper prudent enquiries to be fully informed about the case;
• Whether the lawyers had advised the litigants what result a Court might reach, if it had to decide the matter; and
• What personal and financial tolls might be involved with the various options available for the case.

This case was even more complex because it also involved the children of the litigants and there was an overriding requirement that any decision made in respect of the children would be in their best interests.

I knew facts about the case that the litigants seemed unwilling to agitate. My view was that those facts could have a significant impact on the outcome of the case, if the Court were minded to take a particular view of them. That was not the only view that was open on those facts.

I had had significant discussions with one of the litigants (L1 for the purposes of this article). L1 was keen to tell their narrative and not keen to be moved from it onto any other narrative. Conversation with L1 could at times be rather difficult.

My approach is to endeavour to understand the entire case and see what impression that case makes upon me. I also try to appreciate how the Judge might view the case. Litigants are not always keen to embrace such an expansive view of their situation. Often they feel that their narrative should be accepted without challenge. That is a shortsighted view and one unlikely to prepare a litigant for the rigours of the court room experience.

I was doing something completely unrelated to the case in question when I found my mind replaying a part of the narrative of L1. My impression was that the narrative sounded forced, that it was trying to convince me of a situation or a state of events, but it was not doing so in a compelling way. I realised that I had felt similarly in the past when that particular topic was discussed by L1. Credibility was a very real issue in the case and an alternative narrative could be told about L1 that would cast them in a very different light. The alternative narrative could have a significant impact on the result of the case.

L1 was not interested in the alternative narrative being discussed. They were also not particularly interested in understanding that the other litigant (L2 for the purposes of this article) could use inferences to support the alternate case and those inferences could be supported by successfully challenging the credibility of L1.

The nuance of the forced narrative resonated strongly with me. It suggested the author (L1) was not being truthful. I thought that would be the approach I would endeavour to take, if I were charged with the task of making the alternative narrative. A provable peripheral lie is a good friend when you are seeking to dismantle the credibility of a witness. If the witness is prepared to lie about something unimportant, then they are definitely prepared to lie about the crucial matters of the case, is how the argument goes. The forced narrative impressed me as being akin to a peripheral lie and it made me wonder what L1 was trying to hide.

In the abstract it also made me happy because I thought the forced narrative could be used to support the alternative narrative, which was based on a considerable number of inferences. The alternative narrative would commence with establishing a number of discrete facts, perhaps not immediately appearing as relevant to the overall outcome sought to be achieved. Having established the first set of facts, there was a second set of facts that needed to be established. Those facts were not always apparently directly connected to the first set of facts. With all those facts now established, some observations as to behaviour could be made. It was then possible to suggest that what may appear to be isolated and unrelated events, were in fact part of a rather more elaborate behaviour that was in stark contrast to the pleasant narrative L1 wanted to tell. The further one went through the inferences narrative proposed by L2, the stronger the inferences became that L1 was not necessarily possessed of good behaviour.

The significance of attacking the character or personal behaviour of L1 was to support the overall argument that their focus was not primarily on the children and parenting the children, but rather on the social life of L1. Accordingly L2 should have more time with children.

The overall argument having been understood, a process needed to be identified by which L2 could make their case, in circumstances where there were not necessarily facts obviously appearing to support them. The opportunity to pursue that narrative arose via the narrative of L1 and the fact that at a significant point it seemed to be forced, suggesting it was not true.

Effective cross-examination is a complex and multi-layered endeavour. It need not be clear to those watching cross-examination at any given time what the ultimate goal of the case may be, but working towards that ultimate goal is crucial. Similarly within the case something may arise that causes you to change your approach, if you are to retain hope in achieving your ultimate goal. There are also times when the reputation of a witness can be seriously challenged, but it need not necessarily be restored for your overall case to be successful.

As I said at the outset, no two people do cross-examination the same. A seemingly unrelated thought inspired reflection on the case and that provided a greater appreciation of the evidence. From that I could determine how cross-examination might be undertaken. Whether the Judge would ultimately be persuaded by my cross-examination and submissions is another matter, but I was confident I could mount a compelling argument and in doing so, I would enliven the chances of the client being successful.