Ball & Ball (No 4)
[2024] FedCFamC1F 232
•10 April 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ball & Ball has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
These are short reasons for decision concerning further orders required to prepare the matter for the further interim hearing of parenting proceedings under the Family Law Act 1975 (Cth) on 18 April 2024.
The current issues relate to the subject child, Y, born 2009, who is now 14. They arise out of the “interim-interim” orders made by me on 14 March 2024 in anticipation of a further interim hearing.
The background to the application presently before me is set out in my three previous interim decisions, Ball & Ball [2022] FedCFamC1F 1068 on 21 December 2022 (“the first judgment”) and Ball & Ball (No 2) [2023] FedCFamC1F 752 on 21 August 2023 (“the second judgment”) and Ball & Ball (No 3) [2024] FedCFamC1F 215 on 14 March 2024 (“the third judgment”).
This decision should be read together with those decisions. I will not repeat what was said in them. The relevant principles that apply in interim applications are set out there.
The mother’s criminal trial in relation to child exploitation material relating to the three children, including Y, was vacated and is listed for trial later this year as discussed.
Y has now decided she does not want to live with the father and wants to live with the mother, despite the pending criminal prosecution and despite, it appears, Y or some person other than the father having made a further disclosure to the Department of Communities and Justice (“DCJ”) regarding the mother which is being investigated by NSW Police.
The primary issue I must address is whether the mother is required to produce the text messages between her and Y pursuant to Order 4 of the orders of 14 March 2024.
The number or content of the text messages may be in breach of this Court’s orders. That might place her in breach of her bail conditions, which in effect require her to comply with this Court’s orders around “access”. That might in turn render her liable to be placed on remand for breach of bail, which might perhaps be considered a form of penalty, or more relevantly liable for criminal prosecution for breach of a state-based ADVO, which I understand is in similar terms to the bail conditions, or arguably for prosecution for contempt in this Court.
The mother asserts the privilege against self-incrimination in relation to the documents which constitute the messages. The mother objected to Order 4 when it was being argued, but did not object on this ground. That delay is not relevant if there is a privilege she is entitled to assert.
However, the mother says she wants the Court to know the content of the text messages and seeks orders which will allow the Court to have that information in a way which does not render her liable to prosecution. She seeks orders pursuant to s 128 Evidence Act 1995 (Cth) (a s 128 Certificate) to protect her position, however, it is not clear that is a course which is open in relation to the pre-trial production of documents.
The father seeks compliance with Order 4, objects to the granting of a s 128 Certificate and further, perhaps in the alternative, answers to a Notice to Admit Facts which traverses the same territory.
Complicating matters, the NSW police material obtained pursuant to s 69ZW and s 245D revealed that a further report of sexual abuse was made in early 2024. The ICL corresponded with NSW Police. In early 2024 an officer from the Child Abuse Squad of NSW Police wrote to the ICL:[1]
… I can confirm that there is a current investigation relating to serious child sex offences involving [Ms Ball] with the victim in the matter being [Y]. This investigation is a separate matter then the matters that are currently before the court I am the OIC of this matter and can confirm that the investigation is ongoing. For this reason, certain details in relation to the investigation cannot be disclosed. I can confirm that this investigation does not rely on any evidence provided by any other parties involved in the family law court proceedings including [Mr Ball]. I can not give a time frame for the investigation. Due to the investigation police hold extreme concerns for the safety of [Y] and do not support contact between [Ms Ball] and [Y].
[1] MFI 4, p.72.
There are other issues, considered below.
Mention
The matter was listed before me again at the request of the parties and Independent Children’s Lawyer (“ICL”) to consider further orders in relation to the preparation of evidence for the further interim hearing on 18 April 2024, and to raise a concerning issue relating to a further disclosure made by Y to the DCJ on about 3 March 2024, which were revealed by the updating material produced by DCJ and given to the parties.
The matter proceeded as a quasi-interim hearing. The mother and father were each represented by counsel and the ICL appeared.
The ICL provided and relied upon a “Memo to Court” dated 3 April 2024,[2] setting out the ICL’s understanding of the issues and the ICL’s views. The mother relied upon a “Minute of Orders Sought by the Applicant Mother 5 Apr 2024”,[3] and read her affidavit filed 3 April 2024. The father relied upon a “minute of order sought by the Respondent father”,[4] and certain documents in a tender bundle,[5] in particular the Notice to Admit Facts sent by the father to the mother,[6] and certain correspondence between the ICL and an officer of NSW Police Child Abuse Squad and in particular correspondence of 20 March 2024.[7]
[2] MFI 1.
[3] MFI 2.
[4] MFI 3.
[5] MFI 4.
[6] MFI 4, from p.15.
[7] MFI 4 at pp.72-73.
Text messages between the mother and Y
Order 4 of my orders of 14 March 2024, made over the mother’s objection, states:
4. Within 7 days of these Orders, the mother is to provide to the ICL and the father copies of all electronic communications (via text message, [social media], email or however received) between her and [Y] in the period 10 February 2024 to date.
The mother seeks to discharge that order, or in the alternative require that it be complied with through an affidavit to which a s 128 Evidence Act 1995 (Cth) certificate be granted. The objection taken on 14 March 2024 did not raise the issue of the privilege against self‑incrimination. The late raising of the issue is not something that defeats a privilege which exists.
The mother is on bail in relation to the extant criminal charges. I understand the state ADVO mirrors the bail conditions.
That bail, as originally ordered by a learned Magistrate at Town C Local Court in late 2022 was:[8]
“Not to go near, or contact or try to go near or contact except through a legal representative ([X]), ([Y]) or ([Z]) or any prosecution witness.”
[8] Exhibit ICL 4, Judgment of Justice Fagan of late 2022 (from p.146 of Joint Court Book MFI 1 on Interim Hearing of 19 December 2022).
In late 2022, Justice Fagan gave Judgment in the Supreme Court of New South Wales that:[9]
In these circumstances the proposal is that a variation to the bail conditions of [late] 2022 be made by which it would be subject to an exception in these terms: "… other than pursuant to orders made by the Family Court of Australia, this variation not to take effect until [seven days later]".
The purpose is to allow the bail applicant access to her children by adjusting the bail conditions so that they conforms with the assessment of all interests made in the Family Court - where it is recognised by this Court, and by the Crown by the applicant's counsel that the appropriate expertise resides.
The effect of making the variation, but deferring its operation until [seven days later] is that if at the hearing [in late] 2022 in light of the information about the additional charges and any representations that may be made there including on behalf of the children, the Family Court sees fit to continue the existing regime then the bail condition will allow access in accordance with that regime. On the other hand, if the Family Court sees fit, in light of developments, to change that regime or to terminate the bail applicant’s access to her children altogether then the bail condition will again take effect accordingly.
The applicant's submissions in support of this arrangement appear sensible. It enables the terms of bail to conform to the decision made with appropriate expertise in the jurisdiction that has most command of this subject.
Accordingly, the variation has been orders, as sought. Additional orders have been made requiring that the applicant inform the officer-in-charge of the investigation and the Director of Public Prosecutions promptly after the conclusion of the [late] 2022 proceedings in the Family Court of the outcome. The Crown on the bail application have liberty to apply to this Court for further consideration of the bail variation if either of them sees the need.
[9] Ibid pp.147-148.
I understand His Honour’s reference to “access” to include the concepts of both “time with” and “communication with” as they now operate within the Act.
The Court, and parties, have operated on that basis, and orders have been made for both communication with and time with the mother, noting the time with has been supervised.[10]
[10] Ball & Ball [2022] FedCFamC1F 1068 at [79]-[80]; Orders dated 21 December 2022, Notation B.
The relevant communication order, under the extant orders of this Court, permit the mother to send each child one text message per day on condition that the father is sent a copy.
The mother therefore says that if she has communicated by text with Y in breach of these orders, she is both in breach of this Court’s orders and in breach of her bail conditions in the criminal proceedings and an ADVO.
On that basis, she asserts the privilege against self-incrimination and says she should not be required to produce the documents pursuant to the current order as it may result in her being charged with breach of bail or ADVO, and not in compliance with the Orders of this Court.
In the alternative she says that should she be required to produce the documents she should be required to do so by affidavit and that a certificate pursuant to s 128 Evidence Act1995 (Cth) should be granted.
The mother’s position, as I understand it, is that subject to protection from the risk of prosecution, she is content for the Court to see and take into account the communications.[11]
[11] Mother’s affidavit filed 3 April 2024 at [29].
The ICL says that the child’s best interests require that the Court see the communications, if permissible.
In my view, the communications are highly relevant to determining Y’s best interests, and in particular where she should live, and to consider whether the mother has been seeking to influence Y in her decision or to undermine the father’s relationship with Y.
The father objects to the Court giving the mother a s 128 Certificate on the basis that it is not clear that one is required as the mother may not have breached the terms of the Court’s communication orders. The father submitted that, if necessary, a certificate could be provided at a later date as allowed by s 128. Further, as the father submitted, this is not evidence being given by the mother, but are documents being produced and is akin to the position that applies with a subpoena, where the Court’s order has the same compulsive effect as a subpoena.
The matter is complicated by the fact, that the question of whether the mother has breached the Court’s orders and also her bail or a state ADVO is to be determined by whether she has breached my orders. If I consider that the mother had a “reasonable excuse” for texting Y, a distraught 14-year-old runaway with mental health issues reaching out to her, then arguably there is no actionable contravention of the orders, and consequently no breach of bail or any correspondent state ADVO.
Where a privilege is claimed and there is a dispute as to privilege, as has arisen here, I have the power to require the documents to be produced so that I may consider the privilege issue.
Given the father’s, the mother’s and the ICL’s position, I am satisfied that is the appropriate first step.
Accordingly, I order that the mother is to produce all documents identified in Order 4 to the Court in chambers today. Once I have reviewed the documents, I will publish a further Judgment and Orders.
Other matters
The father has served a Notice to Admit Facts going to communications between the mother and Y, including concessions that she has breached her bail conditions. Similar issues arise. The mother seeks to have that stood over to the interim hearing. I do not need to make any Orders about that at this time other than to stand the date for compliance over to the interim hearing. Prima facie, the mother is not required to answer these questions as they ask her to admit her state of mind and that she was, and was aware she was, breaching her bail conditions. In any event, some of this may fall away depending on the contents of the documents produced.
The father seeks an order that the Maternal Grandmother, with whom Y is living, be restrained from discussing these proceedings or the criminal proceedings with Y. The mother does not object but indicated that the Maternal Grandmother should be given an opportunity to be heard before she is subject to such an injunction. Whilst that seems a sensible order, in the circumstances of this case where the Maternal Grandmother has taken Y in and at present there is no other obvious safe residence which she is willing to live at, the Maternal Grandmother should be given a chance to be heard first.
The ICL is to ask the Maternal Grandmother Ms E whether she agrees to such an injunction prior to the interim hearing.
The father sought an order requiring the ICL to invite the DPP to intervene in the interim hearing to make submissions on, in effect, the appropriate parenting orders for Y, and to make submissions to me on whether or not the father should be entitled to require the mother to provide him with a copy of the criminal brief of evidence for use in these proceedings. The mother objects. The DPP has no standing in this Court to make submissions concerning the parenting orders which are in Y’s best interests. I will not make any such order.
In particular given the allegations about the events that lead to the vacation of the criminal hearing, I do not consider it would be appropriate to order the DPP to give the father, who is or may be a witness in that criminal trial, a copy of the brief before the criminal trial. Once that trial is concluded, then the position is likely to be different.
The mother has not complied with Order 6 of the orders of 14 March 2024 on the basis that much of the communication between her and the Maternal Grandmother is irrelevant. That is no objection. The question of the relevance of each individual communication is not a matter for the mother to determine. The documents are to be produced in compliance with the order.
The father has commenced property proceedings with the stated intention of using them as a collateral means of obtaining the parenting orders he seeks for Y to live with him, where his case is that Y mainly wants to live with the mother due to the location of her residence compared to his residence. He seeks to expedite the mother’s compliance with the timetable for this collateral purpose. I will not make any such order.
I note that if Y will not live with the father, cannot live with the maternal grandmother because she is overseas and cannot live with the mother in view of both the outstanding criminal proceeding and also the recent further disclosure and ongoing investigation, it may be necessary to invite DCJ to intervene to see if Y can be placed in safe alternative housing whilst the grandmother is overseas. I will hear the parties and ICL on this before I extend that invitation to DCJ.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 10 April 2024
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