CHURCHILL & RASKE
[2014] FamCA 848
•30 September 2014
FAMILY COURT OF AUSTRALIA
| CHURCHILL & RASKE | [2014] FamCA 848 |
| FAMILY LAW – EVIDENCE – Certificate pursuant to section 128 of the Evidence Act 1995 (Cth) – Where the mother obtained material without authority by accessing the father’s email account – Where such conduct might be or is an offence under section 478 of the Criminal Code Act 1995 (Cth) – Where the Court noted that the law in relation to the giving of prophylactic certificates to cover evidence-in-chief under section 128 of the Evidence Act is in an unsatisfactory state and needs clarity, particularly given the potential for its regular application and the unexpected circumstances in which such applications can arise – Where certificate granted. |
| Criminal Code Act 1995 (Cth) s 478 Evidence Act 1995 (Cth) s 128 |
| Aitken & Murphy [2011] FamCA 785 Cornwell v The Queen (2007) 231 CLR 260 Ferrall & Blyton (2000) 27 FLR 178 Jarvis & Pike [2013] FamCAFC 196 Song v Ying [2010] NSWCA 237 |
| APPLICANT: | Mr Churchill |
| RESPONDENT: | Ms Raske |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Murray |
| FILE NUMBER: | TVC | 1360 | of | 2011 |
| DATE DELIVERED: | 30 September 2014 |
| PLACE DELIVERED: | Mackay |
| PLACE HEARD: | Mackay |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 30 September 2014 |
REPRESENTATION
| THE APPLICANT: | In Person |
| SOLICITORS FOR THE RESPONDENT: | J Hamilton & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Pennell | |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER | Geraldine Anne Murray | |
IT IS NOTED that publication of this judgment by this Court under the pseudonym Churchill & Raske has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MACKAY |
FILE NUMBER: TVC 1360 of 2011
| Mr Churchill |
Applicant
And
| Ms Raske |
Respondent
EX TEMPORE
RULING
This morning, at the commencement of the trial of competing parenting proposals, the mother, who is otherwise self-represented, had the assistance of her former solicitor, Ms Hamilton. Ms Hamilton announced that her appearance was for a limited purpose and on a limited basis and was primarily, if not solely, to seek for her former client a certificate under section 128 of the Evidence Act to cover certain evidence which she wished to give by way of a yet, unfiled, affidavit.
The contents of that affidavit were said to include material which the mother had obtained, without authority, by accessing some form of email account, apparently maintained by the father, and presumably, diverting or printing or otherwise copying, emails which she was able to find stored within the relevant account. It is said that such conduct might be, or is, an offence under section 478 of the Criminal Code (Cth) and for the purposes of this ruling, I assume that indeed, it is such an offence.
The law in relation to the giving of prophylactic certificates to cover evidence-in-chief under section 128 of the Evidence Act is in an unsatisfactory state. It is particularly unsatisfactory given the circumstances in which applications such as this can arise at short notice within a trial, and not be attended by a reasonable opportunity for a proper argument in relation to the issues which such applications raise. Plainly, this is a matter where there needs to be clarity of the law given the potential for its regular application and, as I say, the unexpected circumstances in which such applications can arise.
A convenient starting point[1] for a consideration of the authorities is the decision of the Full Court of the Family Court in Ferrall & Blyton (2000) 27 FLR 178. That decision is authority for the proposition that a section 128 certificate can be given to cover evidence-in-chief given by a party by way of affidavit. If the law had so remained, the task for trial judges, such as myself, would be much simpler. However, in Cornwell v The Queen (2007) 231 CLR 260 the High Court doubted, without deciding, albeit in the context of criminal proceedings, whether a witness could object to giving evidence when it was part of the material they were attempting to adduce by way of evidence-in-chief from themselves.
[1]I gratefully acknowledge the commentary on the relevant authorities contained at [1.3.12840] of Odgers, Uniform Evidence Law (2014, 11th ed Thomson Reuters) in which much of the following review of the authorities has its genesis.
The New South Wales Court of Appeal in Song v Ying [2010] NSWCA 237 had a slightly different take in relation to the issue and resolved, in substance, that a witness who was compellable by way of subpoena or other process, may obtain the benefit of a certificate under section 128 by virtue of that compulsion. However, the court made it plain that would not apply to parties who gave evidence in answer to questions from their own counsel, as the element of compulsion was not present.
Young J in Aitken & Murphy [2011] FamCA 785 undertook a helpful analysis of the relevant authorities. Whilst mindful of the fact that, firstly, Ferrall & Blyton bound his Honour and, secondly, the High Court had been critical of that decision’s approach in Cornwell v The Queen, his Honour ultimately concluded that he preferred the reasoning of the New South Wales Court of Appeal in Song v Ying, and in the circumstances before him, found that there was compulsion upon the party who sought the benefit of a section 128 certificate by virtue of the obligation on parties to proceedings involving the division of property, in that case under section 90SM, to disclose all relevant material.
I pause to observe that of course the instant trial is of parenting proceedings and the obligation of disclosure which attends property matters does not apply here.
Notwithstanding the helpful and extensive analysis of Young J in Aitken & Murphy, when the Full Court of the Family Court next looked at the question of the width or breadth of section 128 in Jarvis & Pike [2013] FamCAFC 196 there appears to have been no reference to the court by counsel or the parties then appearing to either Cornwell v The Queen, Song v Ying or Aitken & Murphy. In Jarvis & Pike the Full Court simply noted that the law was “clear” in relation to the application of section 128 to affidavits that comprise evidence-in-chief, and referred to Ferrall & Blyton but no other authority.
As I have already noted, I do not have the luxury that attended Young J in Aitken & Murphy of being able to identify a compulsion that applies to the giving of evidence-in-chief by the mother here. Nonetheless, I accept that unless and until the High Court determines that the decisions of the Full Court in Ferrall & Blyton and Jarvis & Pike are incorrect, in my view I am obliged to follow those cases.
My provisional view, which it is unnecessary for me to conclude, is that if I were not bound by Ferrall & Blyton and Jarvis & Pike, then like Young J, I would adopt the approach of the New South Wales Court of Appeal in Song v Ying.
In saying that, I would not wish it to be thought that I do not see that there is merit in certificates under section 128 being available to a party’s evidence-in-chief in proceedings in this court involving children, however the language of section 128, which specifically refers to the notion of objection, on a plain reading makes that a difficult construction indeed.
If it be the case that the New South Wales Court of Appeal position in Song v Ying is the correct or preferable approach, then perhaps statutory reform of section 128 may be necessary, at least in relation to proceedings involving children in this court.
I therefore propose to give a certificate to the mother under section 128 covering any evidence that she may give, whether by evidence-in-chief or under cross-examination or re-examination, pertaining to her unauthorised access of the father’s email accounts.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 30 September 2014.
Associate:
Date: 30 September 2014
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