“Cultural imperialism and judicial activism” allegations

“Cultural imperialism and judicial activism” allegations

Proctor & Proctor [2016] FCCA 613 (23 March 2016)

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/613.html?stem=0&synonyms=0&query=family%20law%20act

Allegations of cultural imperialism and judicial activism

730. At the commencement of day 3 of the trial^[213] Mr Proctor commenced by indicating that he did not propose to call further evidence due to “Cultural Imperialism” and “Judicial Activism”.^[214]
731. At that point in the trial Ms Proctor, the Applicant, had closed her case. Mr Proctor had not yet opened his case and the effect of his intended action would have been to present no evidence.
732. The matter had occupied 2 days of hearing in November, 2015 and had been adjourned to a further 2-day fixture (days 3 and 4 of the trial) to address Mr Proctor’s case, to re-examine the Family Consultant and to hear submissions.
733. Mr Proctor was asked to explain what he meant by the terms that he used and to articulate what course he proposed the trial might take. Ultimately, Mr Proctor’s “complaints” might be typified as allegations by him that:
     1. Because of his gender (male), ethnicity ((nationality omitted)) and/or religion ((omitted)) that the Court had prejudged the issues at trial or would impermissibly determine the proceedings by reference to one or more of those factors;
     2. His culture would be “oppressed” by the Court’s imposition of an Anglo normative approach to the determination of the proceedings;
     100. Culture did not permit him to submit to the Court’s intrusion into the personal and private affairs of his family; and
     4. That the Court had “an agenda” to be advanced by “judicial activism” and which would cause the Court’s discretion to miscarry through pursuit of that agenda and by the Court’s legitimate discretion being fettered thereby and miscarrying.
734. Mr Proctor was given opportunity to renew an Application for recusal that had been made by him on day 1 of the trial and withdrawn without any submission put in its support. Mr Proctor declined this opportunity and no application for recusal was expressly articulated.
735. Mr Proctor was, in accordance with the Re F Litigant in Person Guidelines, advised of the likely consequences of his failure to make himself or his daughter Ms P available for cross-examination, being the acceptance of Ms Proctor’s evidence in preference to his own and, if so, a probability that Ms Proctor might then successfully obtain the relief she sought.
736. At that point Mr Proctor indicated his desire to proceed and took the witness box.
737. The matters that are raised by Mr Proctor require some examination. The allegations that are made by Mr Proctor that his gender, ethnicity or faith^[215] would affect the determination of the case are serious matters. This is particularly so as Mr Proctor continued to refer to the charge of “cultural imperialism” for the remainder of the case and in reference to questions put to him, evidence given by the Family Report Writer and in his closing submissions.
738. From the outset I reject the assertions made by Mr Proctor. However, the issue requires comment lest it be inferred that by absence of comment some concession is made.
739. The issue has no bearing upon the findings of fact that I must make in the case and thus my consideration will be brief and will involve reference to academic works in the area purely for definitional purposes. Their consideration will play no role in the determination of any fact in the substantive proceedings and will not represent “adjudicative fact”.
740. As is remarked by Allan James “…the judicial activism charge is a serious one to make”^[216] with James somewhat pejoratively describing judicial activism as:^[217]
     <li “=””>

     It looks more like legislating from the bench, otherwise described as point-of-application judges imposing their own first-order moral and political preferences, judgements and sentiments on all the rest of us.

741. I take it that it is this more pejorative attitude to judicial activism which Mr Proctor alleges rather than the more positive commentaries on the topic such as that which arises from authors such as Fabio Almeida and Dr A^[218] who opine that judicial activism:
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     …does not imply a distortion in political and judicial structures, but it should be understood as an expected feature of legal interpretation in complex political systems. In contemporary liberal democracies, legislation cannot regulate all situations, and thus the only way to affirm its universality is through flexible interpretation, which grants to society the ability to adapt its legal system to new circumstances without the need to change it through legislative innovations…the judiciary plays a prominent political role in drafting the law,[219] since the judicial practice contributes to a constant redefinition of the meanings of legal norms.

742. Kmeic^[220] is equally positive opining:
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     In its early days, the term “judicial activist” sometimes had a positive connotation, much more akin to “civil rights activist” than “judge misusing authority”.

743. Even conservative authors such as Sackville^[221] have recognised that “judicial activism”, (to the extent that judicial activism might involve a Court doing more than strictly interpreting the meaning of words in a document and instead interpreting those words within a context and by application of broader, perhaps “non-legal” considerations), might be appropriate and offering two examples from the High Court of Australia, namely:
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     Justice Keith Mason has argued that ‘top-down reasoning’ in the sense of an over-arching theory about an area of law being used to generate an outcome in a particular case, is a legitimate approach to judicial decision-making.

744. And:
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     As the six separate judgments in Cattanach v Melchior [2003] HCA 38 (a non-constitutional case) demonstrate, there is also no dispute that, at least in some circumstances, overt discussion of policy questions is inevitable. Heydon J’s dissent in that case, for example, rests heavily on his view that it ‘is wrong to attempt to place a value on human life or a value on the expense of human life because human life is invaluable – incapable of effective or useful valuation’. …This may be sound policy, but it is certainly not the product of exclusively ‘legal’ values.

745. I am content to be guided by such comments.
746. By the conclusion of the case that alleged by Mr Proctor to constitute the Court’s judicial activism was still not articulated, save for a veiled and non-specific reference by Mr Proctor to “past work”. The allegation is rejected.
747. There is no activism in undertaking an exercise of discretion by reference to the factors which the legislation, past, settled authority and permissible materials such as the Family Violence Best Practice Principles Version 3.2. That is all that will be done in this case and what was clearly explained, prior to the commencement of the trial and in satisfaction of the Re F Litigant in Person Guidelines.
748. To the extent that Mr Proctor seeks to suggest, as might be inferred by his discourse regarding “cultural imperialism”, (to which I will now turn), that past decisions of the Court regarding family violence are “activist” that proposition is, again, rejected. Family violence, a central theme of the evidence in this case, is appropriately prioritised as a consideration by the  Family Law Act 1975  and especially by section 60CC(2A) of the Act.
749. The claim of “cultural imperialism” also lacks foundation. A lengthy discourse on the issue would be intellectually stimulating, however such discussion must await other times and fora.
750. It would suffice to consider the definition of the term given by the Cambridge Business English Dictionary and being, “The fact of the culture of a large and powerful country, organisation, et cetera having a great influence on another less powerful country, et cetera”.
751. Like many such concepts the discourse around the term has arisen from a consideration of the commercial and economic influence of the United States and similarly powerful western countries (largely though not exclusively colonial or former colonial powers, dominantly Anglo-Saxon and English speaking) through trade, commerce and other behaviours associated, connected with or supporting commerce, the term having first been expounded by Schiller in 1976.^[222]
752. The term would not appear to have any ready application, even analogously, to the claim made by Mr Proctor.
753. A term which might have greater application to Mr Proctor’s protest, is cultural hegemony, a Marxist theory generally associated with Antonio Gramsci and whereby a ruling elite (presumably, in this case, comprising or at least including the Court) manipulate the value system and mores of a society so that such manipulated views become normative and displace and replace all other views and values.
754. This case, like all other parenting cases that come before the Court, is dealt with by reference to the individual facts and circumstances of the case and the evidence presented by the parties. One important consideration in determining the outcome of any proceeding is a consideration of the family in its context both socially and culturally.
755. Few if any normative views are applied to the determination of any parenting case, save those which are legislated and mandated by Parliament. A clear and specific example of this is the requirement, established by section 60CC(2)(b) of the  Family Law Act 1975  to consider the need to protect children from harm occasioned by their exposure to abuse, neglect or family violence.^[223] Such “normative” considerations, if they might appropriately be referred to as such, are permissible, desirable and legislatively mandated.
756. The specific culture and cultural practice of a family must be considered by reference to section 60CC(3)(g). Whilst specific provision is included regarding consideration of Aboriginal and Torres Strait Islander culture^[224] a consideration of culture is not confined to the First Peoples of Australia.
757. Each decision must, to the extent that the evidence allows and permits it to be so, be determined within the specific context of the individual child and family rather than by application of normative attitudes of a dominant culture.
758. In this case a significant impediment to such individualised consideration of the family is the failure by either party to lead any evidence relating to their cultural practice whether, by reference to Mr Proctor’s “complaints”, his gender, his ethnicity or his religious practice.
759. The only references to culture contained within Mr Proctor’s Affidavit is a reference to the eldest (now adult) child Ms P in the following terms:
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     Ms P was under great stress as she started her high school and the financial resources, her care and support, her mental stress were accumulating, and under our cultural beliefs and practices this is the age ages

     (sic)

     when the girls move away from their fathers and start a closer relationship with the mothers, as they start their womanhood.^{[225] [226]}

760. During his submission on these points, on the third day of trial, Mr Proctor also indicated (and repeated several times during his cross-examination although, I am satisfied, as a “shield” or means of avoiding response to questions rather than as a valid complaint) that:
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     My philosophy of life is not to share those intimate family details with anyone. No matter how much evidence I produce the game is set and match. I don’t want to waste court time or mine. The decision is made. Why would I let the court in or entertain them. I’m sure the court has an opinion of the net result. That is the western common law.

761. As indicated, Mr Proctor was then invited to renew his Application for recusal. The Application was not renewed.
762. Mr Proctor was then advised of the evidential consequence of his withdrawing both his and his adult daughter Ms P’s Affidavit, and at that point determined to continue.
763. I reject each of the arguments raised by Mr Proctor.