Ball & Ball (No 4) - [2024] FedCFamC1F 232

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ball & Ball (No 4) [2024] FedCFamC1F 232

File number(s): NCC 34 of 2022

Judgment of: SMITH J

Date of judgment: 10 April 2024

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – where the mother is to produce all electronic communications between her and a child pursuant to Orders of 14 March 2024 – where the communication may place the mother in breach of her bail conditions or ADVO depending on volume – where the mother raises the issue of privilege again self-incrimination – where the mother sought to discharge order for production – alternatively mother sought order for a certificate pursuant to s 128 Evidence Act – where the communications are highly relevant to child’s best interests – where the father objected to s 128 certificate – where the documents produced do not constitute evidence being given – where the documents may attract the privilege against self-incrimination.

FAMILY LAW – ORDERS – Where mother is to produce all documents to the Court in Chambers for the determination of any issue of privilege – other orders.

Legislation:
Evidence Act 1995 (Cth) Pt 3.10 s 128

Family Law Act 1975 (Cth)

Cases cited:
Ball & Ball [2022] FedCFamC1F 1068

Ball & Ball (No 2) [2023] FedCFamC1F 752

Ball & Ball (No 3) [2024] FedCFamC1F 215

Division: Division 1 First Instance

Number of paragraphs: 43

Date of hearing: 5 April 2024

Place: Newcastle by Microsoft Teams

Counsel for the Applicant: Mr Bithrey

Solicitor for the Applicant: Brynes Lawyers

Counsel for the Respondent: Mr Willoughby

Solicitor for the Respondent: Hannaway Lawyers

Solicitor-Advocate for the Independent Children's Lawyer: Ms McGregor

Solicitor for the Independent Children's Lawyer: McGregor Family Law
ORDERS

NCC 34 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BALL

Applicant

AND:
MR BALL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

10 APRIL 2024

THE COURT ORDERS THAT:
1.Confirm the resumed Interim Defended Hearing on Thursday, 18 April 2024 at 10.00 am by Microsoft Teams.
2.The Applicant is to produce all documents identified in Order 4 of the Orders of 14 March 2024 to the Court in chambers by 2.00pm today for determination of the issue of privilege and consequential orders.
3.The Applicant is not required to answer the Notice to Admit Facts served by the Respondent prior to the next Interim Defended Hearing.
4.The parties and ICL are to make any written submission concerning an invitation to the Department of Communities and Justice (“DCJ”) to join the proceedings by 4.00pm 11 April 2024.

THE COURT NOTES THAT:
A.Where a party is granted leave to review or photocopy subpoena documents the exercise of that leave is conditional on their giving the usual undertaking. The usual undertaking includes an undertaking to the Court to keep confidential and to not disclose to other person (other than a legal practitioner retained in the proceedings) any of the information or knowledge acquired by reason of the review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ball & Ball (No 4)

Details

AGLC: Ball & Ball (No 4) [2024] FedCFamC1F 232
Case: [2024] FedCFamC1F 232
Decision Date: 10 April 2024

CaseChat Overview and Summary

The matter before the court involved Ms Ball, the applicant, and Mr Ball, the respondent, with proceedings overseen by an Independent Children's Lawyer. The central issue was the production of all electronic communications between Ms Ball and a child, pursuant to orders made on 14 March 2024. Ms Ball sought to discharge the order for production or, alternatively, an order for a certificate under section 128 of the Evidence Act 1995 (Cth). The primary concern was that the production of these communications could potentially breach Ms Ball's bail conditions or an Apprehended Domestic Violence Order (ADVO), depending on their volume, and that they might attract the privilege against self-incrimination.

The court was required to determine whether Ms Ball should be compelled to produce all the identified documents and whether there were any legal grounds to discharge the order for production or to obtain a section 128 certificate. The court needed to balance the relevance of the communications to the child's best interests against the potential legal implications for Ms Ball. Mr Ball opposed the application for a section 128 certificate.

The court found that the documents produced did not constitute evidence being given and, therefore, did not fall within the scope of the privilege against self-incrimination. It was determined that the applicant must produce all documents to the Court in chambers for the determination of any issue of privilege. The court confirmed the resumed Interim Defended Hearing and required the applicant to produce the relevant documents by a specified time for the determination of any privilege issues. Additionally, the court noted the importance of confidentiality regarding any reviewed or photocopied subpoenaed material and reminded the parties of the criminal penalties for breaching the Family Law Act 1975 (Cth) regarding the publication of court proceedings.

Orders

Orders of the court

NCC 34 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BALL

Applicant

AND:

MR BALL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

10 APRIL 2024

THE COURT ORDERS THAT:

1. Confirm the resumed Interim Defended Hearing on Thursday, 18 April 2024 at 10.00 am by Microsoft Teams.

2. The Applicant is to produce all documents identified in Order 4 of the Orders of 14 March 2024 to the Court in chambers by 2.00pm today for determination of the issue of privilege and consequential orders.

3. The Applicant is not required to answer the Notice to Admit Facts served by the Respondent prior to the next Interim Defended Hearing.

4. The parties and ICL are to make any written submission concerning an invitation to the Department of Communities and Justice (“DCJ”) to join the proceedings by 4.00pm 11 April 2024.

THE COURT NOTES THAT:

A. Where a party is granted leave to review or photocopy subpoena documents the exercise of that leave is conditional on their giving the usual undertaking. The usual undertaking includes an undertaking to the Court to keep confidential and to not disclose to other person (other than a legal practitioner retained in the proceedings) any of the information or knowledge acquired by reason of the review of the subpoenaed material. It also includes an undertaking not to show or distribute or publish any document or party of any document copied from the subpoenaed material. Any person who inspects or photocopy documents is taken to have given the usual undertaking without having to sign any further document. A person who breaches the undertaking has committed a serious contempt of Court punishable by imprisonment.

B. The provisions of s 121 of the Family Law Act 1975 (Cth) “Restriction on publication of court proceedings” also applies to information obtained on subpoena. A person who publishes such information commits a criminal offence punishable by imprisonment for a period of up to 1 year.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	NCC 34 of 2022
Judgment of:	SMITH J
Date of judgment:	10 April 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – where the mother is to produce all electronic communications between her and a child pursuant to Orders of 14 March 2024 – where the communication may place the mother in breach of her bail conditions or ADVO depending on volume – where the mother raises the issue of privilege again self-incrimination – where the mother sought to discharge order for production – alternatively mother sought order for a certificate pursuant to s 128 Evidence Act – where the communications are highly relevant to child’s best interests – where the father objected to s 128 certificate – where the documents produced do not constitute evidence being given – where the documents may attract the privilege against self-incrimination. FAMILY LAW – ORDERS – Where mother is to produce all documents to the Court in Chambers for the determination of any issue of privilege – other orders.
Legislation:	Evidence Act 1995 (Cth) Pt 3.10 s 128 Family Law Act 1975 (Cth)
Cases cited:	Ball & Ball [2022] FedCFamC1F 1068 Ball & Ball (No 2) [2023] FedCFamC1F 752 Ball & Ball (No 3) [2024] FedCFamC1F 215
Division:	Division 1 First Instance
Number of paragraphs:	43
Date of hearing:	5 April 2024
Place:	Newcastle by Microsoft Teams
Counsel for the Applicant:	Mr Bithrey
Solicitor for the Applicant:	Brynes Lawyers
Counsel for the Respondent:	Mr Willoughby
Solicitor for the Respondent:	Hannaway Lawyers
Solicitor-Advocate for the Independent Children's Lawyer:	Ms McGregor
Solicitor for the Independent Children's Lawyer:	McGregor Family Law

NCC 34 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BALL Applicant
AND:	MR BALL Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	10 APRIL 2024