Denniston and Gustz (No 2)

[2017] FamCA 1015

FAMILY COURT OF AUSTRALIA

DENNISTON & GUSTZ (NO. 2) [2017] FamCA 1015

FAMILY LAW – ANTON PILLER ORDER – discharging order
FAMILY LAW – CHILDREN – PARENTAGE – application of rules of evidence

Evidence Act 1995
Family Law Act 1975 (Cth) ss 60H, 69ZT
Parentage Act 2004 (ACT)

APPLICANT: Ms Denniston

RESPONDENT: Ms Gustz

FILE NUMBER: CAC 1096 of 2017

DATE DELIVERED: 11 December 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 11 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Davis

SOLICITOR FOR THE APPLICANT: Women’s Legal Centre

COUNSEL FOR THE RESPONDENT: Mr G Howard

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

IT IS ORDERED THAT

1. I direct that the rules of evidence as contained in the Evidence Act 1995 are to be applied in these proceedings insofar as they relate to establishing the parentage of the child, including the proceedings for the cross-vested matter insofar as that is necessary.

2. The previous Order as to the exchange of objections is amended such that the necessary date for the exchange of objections is 22 December 2017.

3. In the event that after receiving objections, given the now application of the Evidence Act 1995, it is necessary to recast the evidence such that it complies with the Evidence Act 1995 then the parties are at liberty to file a supplementary affidavit for each witness relied upon no later than seven days before the commencement of the trial.

IT IS NOTED THAT

1. It is not intended that this will give the parties the ability to lead evidence on matters other than has already been covered in each of their affidavits.

IT IS FURTHER ORDERED THAT

1. The Anton Piller order made on 5 December 2017 is discharged.

2. The costs of today’s proceedings are reserved.

3. The parties are each to file a financial statement seven days before the commencement of the trial.

4. Despite being filed otherwise than in accordance with the directions the affidavit of Mr L may be relied upon in evidence at the final proceedings.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Denniston & Gustz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1096 of 2017

Ms Denniston

Applicant

And

Ms Gustz

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Rules of Evidence

1. This matter concerns proceedings to determine the parentage of a child. The proceedings have been initiated by an application made by Ms Gustz who seeks relief pursuant to s 60H of the Family Law Act 1975 and also through the cross-vested jurisdiction of this Court, relief pursuant to the Parentage Act 2004[1] in the Australian Capital Territory.

   [1]Parentage Act 2004 (ACT).

2. An issue has arisen as to whether the ousted rules of evidence contained in the Evidence Act 1995, being ousted by virtue of the operation of s 69ZT of the Family Law Act 1975 should be applied in relation to the parentage aspect of this dispute.

3. In these matters the parties agree that the rules of evidence should apply in making a determination. As to whether the rules of evidence should apply, I am bound to apply the terms of s 69ZT(3) which enables a court to apply one or more of the provisions of a division or part of the Evidence Act. The threshold for me determining to do so is that I must be satisfied that the circumstances are exceptional. That is a conclusion readily arrived at in these proceedings. While a considerable number of the considerations under s 60H will also constitute matters to be determined under the cross-vesting application, the cross-vesting application is not subject to the operation of s 69ZT, whereas s 60H is. The non-application of the rules of evidence as exempted under s 69ZT to the s 60H proceedings, with the full application of the rules of evidence in relation to many identical matters or at least overlapping matters under the cross-vested matter, would lead to considerable difficulties and uncertainty in the conduct of the proceedings. That consideration renders these proceedings exceptional in the sense set out in s 69ZT(3).

4. I am also to take into account the matters set out in s 69ZT(3)(b). I am firstly to look at the importance of the evidence in the proceedings; the application of the rules of evidence applies to no particular item of evidence other than the evidence generally going to the issue. It could potentially apply to evidence which may, but has not yet been produced, being the evidence the subject of the Anton Piller application, evidence which goes purely to the credibility of the parties. That evidence not yet produced has the potential to be important depending on what it is constituted by, however, at this stage, it is impossible to determine its importance.

5. The second matter is the nature of the subject matter of the proceedings. The subject matter of the proceedings here involves parentage. It has been pointed out in submissions by both counsel that s 60H is a provision that is well amenable to the application of the rules of evidence on the basis that the policy consideration underpinning s 69ZT is to promote decisions which are unhindered by the rules of evidence as they pursue what are in the best interests of the child or to avoid risk for a child. Section 60H does not contain the same best interests considerations. Whether or not the question of best interests has an application in respect of s 60H, it may be seen that the operation of s 60H is that it involves a fact-finding process followed by a mandated consequence. For these reasons that subject matter appears also to be amendable to an order that the rules of evidence should apply.

6. The third consideration is the probative value of the evidence and the same observations as to paragraph four are made.

7. The fourth matter is the powers of the Court to adjourn the hearing to make another order or to give a direction in relation to the evidence.  The trial of the matter is still not for more than six weeks from today, which would give time to make further procedural orders if they are necessary to deal with the application of the rules of evidence from this point.  Accordingly, I direct that the rules of evidence as contained in the Evidence Act 1995 are to be applied in these proceedings insofar as they relate to establishing the parentage of the child, including the proceedings for the cross-vested matter insofar as that is necessary.

Anton Piller order

1. Application was heard by this Court on 5 December 2017 for the making of an Anton Piller order directed to electronic devices of Ms Gustz.[2]  Those electronic devices were the target of the Anton Piller application because of their potential to provide evidence as to the alleged fabrication of material provided in Ms Gustz’s affidavit material (although potentially also being able to show such in respect of Ms Denniston’s affidavit material).  It is conceded that the content of the email as referred to in the previous judgment does not have substantive bearing upon the case.  The issue has resolved itself to one of the credibility of the parties.  To that extent that fabrication is shown it could potentially have strong ramifications for the conduct of the case and the findings to be made.

   [2] See orders issued 5 December 2017.

2. The Anton Piller order was issued on an ex parte basis.  It is now, upon the return of that order, incumbent upon the applicant to demonstrate that the order should remain now that the respondent has the opportunity to be heard.  The respondent opposes the continuation of the Anton Piller order and has filed evidence in her resistance of the Anton Piller order.  Also received into evidence is the letter of the independent solicitor, Ms Clifford, which constitutes exhibit C1.  That evidence discloses that a laptop was taken from Ms Gustz, or rather provided by Ms Gustz, to the independent solicitor in apparent compliance with the Orders made by me on 5 December 2017.  The necessary description is “apparent” compliance because there is a dispute between the parties as to whether or not the correct laptop is the one that has been taken by the independent solicitor.   Ms Gustz initially sought to surrender a particular laptop, Ms Denniston who was present for the execution of the Anton Piller order, stated that it was not the correct laptop and a further laptop was supplied by Ms Gustz, over her objection that it was not the laptop that matched the description set out in the orders. This laptop has been held securely by the independent solicitor since that time.

3. On the previous occasion that the matter was before me the applicant was not yet then in a position to identify, beyond a potential identification of Mr L her expert in relation to the matter, how it is that there might be further queries made of the electronic devices to resolve the issue of the provenance of the email.  No further evidence has been produced on that front by the applicant.  It remains at its height as described by Mr L at page six of his report.

4. Accordingly, at present, there is no evidence as to how the laptop might be sent securely to Mr L to enable the Court to assess the potential risks to the laptop in doing so.  There is no evidence as to the process that will be undertaken by Mr L, nor evidence of the ramifications of that process for example, whether the process itself bears risks to the data that is to be held on the laptop or to the laptop itself.  There is no evidence as to the potential ability to limit Mr L’s access to the material that is contained in the laptop noting that it may be assumed that there are matters of personal significance to Ms Gustz that should not properly be the subject of analysis by Mr L.

5. These were matters that it was incumbent upon the applicant to establish in order to justify the continuation of the Anton Piller order. They have not been established and while it may be possible that the laptop may bear evidence of relevance to the establishment of the credibility of the parties, the absence of the further material explaining how it is that the enquiries might take place, or the particular arrangements that would ensure the security of the laptop have not been put before the Court such as to justify a continuation of the Anton Piller order. Therefore, the Anton Piller order will be discharged. 

6. I note that on the question of an undertaking as to damages only a limited undertaking as to damages was given and accepted for the first portion of the Anton Piller order.  The terms of that limited undertaking were restricted to the value of the device that was to be held by the independent solicitor.   No further undertakings as to damages in consequence of loss of data has been offered today.  The limited undertaking was taken on the basis of quite limited material taken on an ex parte basis which indicated a lack of capacity on the part of Ms Denniston to give a further undertaking.  That position is at least undermined by the material put on by Ms Gustz today.  As it turns out, that matter is not pivotal to the determination of the matter.

I certify that the preceding insert thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 11 December 2017.

Associate: 

Date:   11 December 2017