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
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…
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- Ball & Ball (No 5) [2024] FedCFamC1F 261
- Case
- [2024] FedCFamC1F 261
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether Ms Ball could invoke the privilege against self-incrimination to withhold certain communications from production, or if she had a reasonable excuse for not complying with the court orders. The court had to assess whether Ms Ball had a genuine excuse for not producing all communications, which would negate the need for her to disclose them, and if there was a communication that arguably did not have an obvious defence of reasonable excuse, whether it should still be produced.
The court found that Ms Ball had a reasonable excuse for all but one of the communications with the child, thus no privilege arose because there was no actionable breach. Consequently, all but one of the communications were to be produced to the father and the Independent Children's Lawyer. The court determined that the one communication which might arguably not have an obvious defence of reasonable excuse should not be produced. The court further noted the importance of confidentiality and the serious consequences of breaching the undertaking or disclosing subpoenaed material.
The court ordered that Ms Ball produce all communications between herself and the child, excluding the last communication, by 2pm on 23 April 2024. The court also noted the obligations regarding confidentiality and the potential criminal penalties for breaching these obligations.
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:
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.
Background
Background to the litigation
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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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