Ball & Ball (No 5)
[2024] FedCFamC1F 261
•23 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ball & Ball (No 5) [2024] FedCFamC1F 261
File number(s): NCC 34 of 2022 Judgment of: SMITH J Date of judgment: 23 April 2024 Catchwords: FAMILY LAW – PRIVILEGE – where the mother was required to produce all electronic communications between her and a child pursuant to Orders of 14 March 2024 – where the mother asserts the privilege against self‑incrimination - where the Court exercises its jurisdiction to review the documents.
FAMILY LAW – REASONABLE EXCUSE – Where on the material provided by the mother she had a reasonable excuse for all but one communication with the child – no privilege arises where there is no actionable breach because of clear reasonable excuse – all but one communication to be produced to the other parties.
FAMILY LAW – PRIVILEGE – mother is not required to produce to the parties the one communication which might, arguably, not be the subject of an obvious defence of reasonable excuse.
Legislation: Family Law Act 1975 (Cth) Pt VII, Div 13A, s 70NAE Cases cited: Ball & Ball [2022] FedCFamC1F 1068
Ball & Ball (No 2) [2023] FedCFamC1F 752
Ball & Ball (No 3) [2024] FedCFamC1F 215
Ball & Ball (No 4) [2024] FedCFamC1F 232
Sankey v Whitlam (1978) 142 CLR 1
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:
23 APRIL 2024
THE COURT ORDERS THAT:
1.Confirm the resumed Interim Defended Hearing on Friday, 26 April 2024 at 10.00 am by Microsoft Teams.
2.By 2pm on 23 April 2024 the mother is to produce to the father and the Independent Children’s Lawyer copies of all communications between her and the child, Y (“the child”) as produced to the Court, excluding only the last communication from the mother to the child as produced to the Court.
3.By 2pm on 23 April 2024 the mother is to produce to the father and the Independent Children’s Lawyer a copy of the letter dated 10 April 2024 addressed to The Associate to Justice Smith.
4.The mother is not required to produce the last communication between her and the child as produced to the Court.
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 for further orders required to prepare the matter for the further interim hearing of parenting proceedings under the Family Law Act 1975 (Cth) on 26 April 2024.
The current interim issues relate to the 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 four 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”) and Ball & Ball(No 4) [2024] FedCFamC1F 232 (“the fourth 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.
DOCUMENTS PRODUCED
The mother produced a 16 PDF page document containing images of various messages. None of them have dates, which may be a feature of the particular social media system. She also relied upon a letter dated 10 April 2024 explaining what she says the documents are.
I have reviewed the communications between the mother and the child produced by her. They are said to be screen shots of social media messages. I understand that messages on this social media platform are self-deleting.
It appears that the messages produced are only portions of conversations. There appear to have been, inferentially, other messages of which screen shots were not taken, and which therefore cannot be produced.
PRINCIPLES
The mother asserted the privilege against self-incrimination in relation to the pre-trial production, pursuant to an order of the Court which has the effect of a subpoena, of documents which might tend to incriminate her for contravening this Court’s orders. This is also in the context where such a contravention would, prima facie, be a contravention of her bail conditions in the Supreme Court of New South Wales and a state ADVO, as discussed in the fourth judgment.
The father submitted that the mother had not established a reasonable basis for that assertion, so the documents should be produced and access granted to the parties.
Given the potential relevance of the documents to the assessment of the care of a vulnerable child at risk, I have required the documents to be produced to the Court and I have reviewed the documents.[1]
[1] Sankey v Whitlam (1978) 142 CLR 1.
The child’s messages to the mother do not constitute a breach of the orders, but her replies which exceed one per day and were not conveyed to the father prima facie do.
However, the question of whether the mother has contravened the orders of this Court, and by operation of the orders of the Supreme Court of New South Wales has thus contravened the orders of that Court, depend upon the defence of reasonable excuse under the Act.
In simple terms, the inherent complexity and fluidity of parenting proceedings, including the unpredictability of the responses of children and their exercise of agency by refusing to comply with Court orders, has caused the Parliament to create a defence of “reasonable excuse” for contraventions of parenting orders.[2]
[2] Family Law Act 1975 (Cth) Part VII, Division 13A, see s 70NAE.
It is important, whatever the truth of the facts underlying the criminal proceedings, that so far as possible the Court ensures that the child is not harmed, or further harmed, by legal processes.
It is this feature of parenting proceedings, and the paramountcy of the best interests principle, which I understand caused the Supreme Court of New South Wales to adopt the child-centred approach taken to the bail conditions.
The potential grounds of reasonable excuse are broad. Specifically, where a person believes on reasonable grounds that their actions were necessary to protect the health or safety of a child, they may well establish reasonable excuse.
MESSAGES
The messages, to the extent that the mother possesses them and has produced them, fall into certain topics.
Alleged assault on the child
In the first set of messages, said to be from 14 February 2024, the child alleges that the father was “speaking shit” to her and that everyone was laughing at her, so she called him a “junkie” and “so he punched me”. The mother asked, “[p]unched you where” to which the child replied “face”. The mother asked whether the child was “ok” and the child replied it was just a “nose bleed and my mouth is bleeding and my tooth got knocked abit but its fine”.
Alleged assault on X
On the same day, said to be 14 February 2024, there is another message from the mother, without context, stating “[a]nd was [X] injured. How hard was [X’s] head smashed into the desk”. This appears, on its face, to be a response to something the child said, suggesting an assault on X by someone.
Housing and visits
In further messages, said to be of 17 February 2024, the child says “we r getting kicked out dad has no money and we dont know where to go im scared” [sic] to which the mother replies “[w]hat do you mean” and is told “bc i went to the visit [Ms M] told me “go fuck yourself you stupid little bitch” so I said “ you should have died” [sic].
The child sent a series of photographs, said to have been sent on 18 February 2024, showing the inside of a house which appears to be in disarray and / or being dismantled or renovated or vacated.
Further police interview
I refer to paragraph [12] of the fourth judgment and the new allegations said to have arisen. According to police these allegations against the mother in relation to the child have not come from “any other parties involved in the family law court proceedings including [Mr Ball]”.
In a message said to be of 17 February 2024 the child says, “whats happening dad said the police wanted to speak to me”.
This raises questions about where the new allegations have come from, as it suggests they have not come from the child.
Angry email to school and talking to “Linda”
In a message, said to be of 22 February 2024, the child talks about “playing for u17” then is asked whether she got “Linda’s msg” [sic] and replies “yes i sent a very angy email to the school” [sic].
The child is asked if she can call Linda as “[s]he needs to talk to you over the phone”. This may be a reference to the Independent Children’s Lawyer, Ms Linda McGregor.
Dad’s kicking me out
The child sent further messages said to be on 26 February 2024 stating, “dads kicking me out” and “i have to be gone by the morning”. When asked “[w]hy” the child replied “idk i don’t know what to fo” [sic]. When asked “[w]hat did he say” the child replied “he said i had to be gone by the morning and that he hated me and wishes I was never born” [sic].
Other message
There is one message from the mother to the child which I will not describe and which, might arguably, not be reasonable or necessary.
REASONABLE EXCUSE
The veracity of what the child has said, or implied, about being assault by the father or being kicked out by the father, cannot be tested or determined at this stage. I proceed on the basis that these things may be in contest noting the child’s age, the high conflict situation and what has been said about her mental health.
However, given the child alleged an assault on her by the father in which he punched her and bloodied her nose, alleged verbal abuse, possibly an alleged assault in which someone smashed X’s head into a desk, and significantly that she alleged that the father kicked her out, it would not be open to argue that the mother did not act reasonably in engaging with the child beyond or outside the existing orders, including by not including the father in the communications.
That finding is made on the basis of the material the mother has presented on this issue. It assumes that this is not all part of a much larger set of communications involving an elaborate fabrication co-ordinated between the mother and the child. However, it is appropriate to determine the mother’s claim for privilege on the basis of the mother’s case.
In those circumstances, with the exception of one message which I have not described and which I will not order to be released to the parties as it might not fall within the concept of reasonable excuse, it seems to me unarguable but that there was a reasonable excuse for the mother to communicate with the child as she did.
Accordingly, it would not be able to be established that there was a contravention of this Court’s orders, and correspondently no breach of bail or ADVO.
There is no basis then for the documents containing the communications, with the exception of one communication, not to be produced to the other parties.
The mother’s written submissions of 10 April 2024 are not privileged and have been relied upon by the Court and are also to be produced to the other parties.
SOLE USE AND OCCUPATION
The father included an application for sole use and occupation of the former matrimonial home as part of his reply to the parenting proceedings.
When it was pointed out that there could be no basis for such an order in parenting proceedings, he commenced property proceedings.
I have been told from the bar table that the father’s application for sole use and occupation is being made because the child does not want to live in the location the father lives in, and that it is her desire to live in the location where the mother lives that is driving her behaviours.
The child’s statements and photographs about the father’s residential situation raise issues on this topic the father will need to address when the matter is considered.
For the avoidance of doubt the Court has not at this stage, despite assertions by counsel for the father as to what will occur at the next interim hearing, listed an interim application for sole use and occupation in the property proceedings.
MESSAGES TO PRODUCE
Given my finding that there is, on the information the mother has provided, a reasonable excuse for her communications with the child, except, possibly, in relation to the one final message from her to the child which I will not order to be produced.
Accordingly, there is no basis for the claim for privilege in relation to those messages.
The mother is to provide to the father and the Independent Children’s Lawyer copies of all of the messages disclosed to the Court, excepting only the last message from the mother on page 16 of the PDF bundle produced which may be cut off or deleted or otherwise not produced. This should happen by 2pm today.
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: 23 April 2024
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