Eastley & Eastley (No. 3)
[2021] FamCA 96
•4 March 2021
FAMILY COURT OF AUSTRALIA
Eastley & Eastley (No. 3) [2021] FamCA 96
File number(s): CAC 1729 of 2020 Judgment of: GILL J Date of judgment: 4 March 2021 Catchwords: FAMILY LAW – practice and procedure – whether the compact discs produced by the AFP under subpoena can be released to the legal representatives – how the interview is regulated by the provisions of the Evidence Act (Miscellaneous Provisions) Act 1991 (ACT) – Territory offence provision statutory interpretation – definition of proceeding – interaction of Territory laws with court procedures – admissibility of evidence – potentially unintended consequences of Territory law – impact on proceedings concerning the welfare of children. Legislation: Crimes Act 1900 (ACT) s 434
Evidence Act (Miscellaneous Provisions) Act 1991 (ACT) ss 37, 43, 46, 51, 59
Evidence Act 1995 (Cth) ss 8, 56
Family Law Act 1975 (Cth)
Legislation Act 2001 (ACT)
Cases cited: Beckwith v R (1976) 135 CLR 569
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Eastman v Higgins (2007) 210 FLR 464
Ex parte Fitzgerald Re Gordon (1945) 45 SR (NSW)
Krakouer v The Queen (1998) 194 CLR 202
Milne v The Queen (2014) 252 CLR 149
Northern Territory v GPAO (1999) 196 CLR 553
P v P (1994) 181 CLR 583
Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 312 ALR 254
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Stephen Odgers, Uniform Evidence Law 15th Edition (Thomson Reuters, 2020)
Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019)
Number of paragraphs: 49 Date of last submission/s: 3 March 2021 Place: Canberra Counsel for the Applicant: Ms Davis Solicitor for the Applicant: Alliance Legal Services Counsel for the Respondent: Ms Christie SC Solicitor for the Respondent: Dobinson Davey Clifford Simpson Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 1729 of 2020 BETWEEN: MR EASTLEY
Applicant
AND: MS EASTLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
GILL J
DATE OF ORDER:
4 MARCH 2021
THE COURT ORDERS THAT:
1.The compact discs produced by the AFP under the subpoena dated 6 November 2020 are released to the legal representatives for inspection only in the Canberra Registry and are not to be copied.
2.The parties are at liberty to seek further directions from the Registrar as to the copying and use of copies of the compact discs and in relation to the provision of such to relevant experts.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eastley & Eastley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
The interview
These proceedings are soon listed for trial in a context where a central aspect of the contest relates to whether the father has harmed, or presents as an unacceptable risk of harm to the children of the relationship and in particular X.
X was interviewed by the Australian Federal Police (“AFP”) for the purposes of a criminal investigation as to whether an offence had been committed against him by the father.
Given that a live issue in the proceedings is whether the father has sexually dealt with X, or presents as a risk of harm to the child, two subpoenas were issued to the AFP at the request of the father.
The second subpoena, issued on 6 November 2020, was for the production of material including “records of interview” and “interview transcripts”.
This second subpoena returned audio visually recorded interviews of X, being interviews apparently conducted in the investigation of the alleged offences. A question arises as to how the interviews may be dealt with pending the trial, as the parties seek access, and an issue arises as to whether copies of the interview might be provided for expert analysis.
The parties have agreed certain facts for the determination of this issue, as set out by the Independent Children’s Lawyer (“ICL”):
a.There was a police investigation regarding a sexual assault or indecent act upon X;
b.The mother gave a statement to the police which was audio-recorded, along with audio-recorded interviews with the maternal grandparents;
c.X took part in two audio-visual recordings;
d.No charges were laid; and
e.There are no charges currently on foot.
Given that the audiovisual recordings of X (the recordings) were conducted as part of an investigation into a Territory offence, the issue that arises for determination is whether, and if so, how, the interview is regulated by the provisions of the Evidence Act (Miscellaneous Provisions) Act 1991 (ACT) (“the Territory Act”).
Submissions were provided by each of the parties and the ICL.
Chapter 4 of the Territory Act regulates sexual, violent and family violence offence proceedings. As a part of the regulation of those proceedings, Chapter 4 also regulates the use of certain audio-visual recordings obtained in the investigation of such offences. In particular, s 59 of the Territory Act provides as follows:
Police interview audiovisual recording—offences
(1) A person commits an offence if the person, without authority—
(a) possesses an audiovisual recording; or
(b) supplies, or offers to supply, an audiovisual recording to another person; or
(c) plays, copies or erases, or allows someone else to play, copy or erase, an audiovisual recording.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
(2) For this section, a person has authority in relation to an audiovisual recording only if the person possesses the recording, or does something with the recording, in connection with—
(a) the investigation of, or a proceeding for, an offence in relation to which the recording is prepared; or
(b) a re-hearing, re-trial or appeal in relation to the proceeding; or
(c) another proceeding in which the recording is or may be admitted in evidence under section 56.
That is, if the recordings fall within s 59, possessing, supplying, offering to supply, playing, copying, erasing or allowing someone else to do so, constitutes an offence under Territory law.
It should first be observed that the Territory Act does not regulate the proceedings in the Family Court of Australia. Even without considering the application of Territory provisions more generally to Federal proceedings, s 37 of the Territory Act restricts its application to proceedings for an offence.
The offence provision does not prevent the supply of the recordings to the Court, or the retention of the items by the Court, or the playing of the recordings in proceedings and reception of them into evidence, the Court not being capable of being supplied, or possessing in the relevant sense (see for a parallel example the retention by courts of illicit drugs and weapons in the trial of a matter).
Further, as observed by Stephen Odgers in Uniform Evidence Law 15th Edition at page 67 in relation to the operation of s 8 and s 56 of the Evidence Act 1995:
For proceedings in a federal court, in respect of the rules of admissibility it appears clear that this act effectively covers the field to the exclusion of State and Territory law (including common law) since s 56(1) provides:
Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
That is, reception of the material into evidence will be governed, as indicated by the ICL, and both counsel, by the Evidence Act 1995 (Cth) to the extent that it is applied by the Family Law Act 1975 (Cth).
However, reception of the material into evidence is not the sole issue. Prior to such material becoming evidence it is reasonably necessary for the parties to access the material, and potentially to provide the material to the experts in the case.
Although senior counsel for the mother, and counsel for the father suggested that the court possesses the authority to give directions as to the use of the material in conflict with s 59 of the Territory Act, prior to its admission in the proceedings, by virtue of the material being admitted in or relevant to the proceedings in the Family Court, that proposition is inconsistent with Northern Territory v GPAO (1999) 196 CLR 553 (“GPAO”). No part of the Family Law Act has been identified that qualifies the law making power conferred on the Legislative Assembly of the ACT in respect of the enactment of s 59.
Further, in GPAO at 570 [11], Gleeson CJ and Gummow J drew attention to the rule of construction set out in P v P (1994) 181 CLR 583 at 602:
[a] law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorising or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done.
Accordingly, the issue of whether s 59 controls the use of the recordings falls to be determined on the construction placed upon the Territory provision.
The Territory provisions
Chapter 4 of the Territory Act makes provision for “sexual, violent and family violence proceedings,” with proceedings being defined at s 37 of the Territory Act in a manner that incorporates only criminal proceedings.
Special requirements are imposed on the conduct of particular of those criminal proceedings. In the case of a child witness involved in a sexual offence proceeding, Division 4.3.3 is engaged, which provides for the audio-visual recording of an interview with the child and the admission of that recording as evidence in the proceeding.
As noted, s 59 of the Territory Act criminalises particular dealings with such a recording.
The subsidiary questions that arise as to the application of s 59 are:
(1)Are these relevantly audio-visual recordings?
(2)Is there a relevant authority?
The more straightforward of these to answer is the issue of relevant authority. Authority is comprehensively dealt with at s 59(2). It may be observed that each of the concepts of authority relate to the investigation of, or proceedings in relation to an offence. The proceedings in this court are not in relation to an offence.
The authority referred to in s 59 of the Territory Act is not available in relation to proceedings concerning the best interests of the child, even where the issue of the same act that might be prosecuted in the Territory is central to the determination of the question of risk to a child. Authority cannot be given outside the circumstances set out in s 59(2) even on consideration by a court as to the necessity of the material to be made available for a relevant expert to assist the court. Authority is cast narrowly and without apparent consideration of the potential importance of such material to the conduct of non-criminal proceedings that concern the welfare of children. Perhaps this was an unintended consequence of the legislation.
The remaining issue, and one focussed upon by counsel for the father, is whether, in the circumstances of this particular case, the audiovisual recording is one that falls within the ambit of s 59.
Audiovisual recording is defined for the purposes of Division 4.3.3 at s 51(1) of the Territory Act, which provides as follows:
For this division (Division 4.3.3), an audiovisual recording is an audiovisual recording that is of a witness in a relevant proceeding answering questions of a prescribed person in relation to the investigation of an offence the subject of the proceeding.
Section 59 falls within Division 4.3.3.
The two qualifications are that it is an audio-visual recording of a witness in a relevant proceeding and that the questions being answered are of a prescribed person in relation to the investigation of an offence the subject of the proceeding.
“Relevant proceeding” is in turn defined for Part 4.3 in s 46 as meaning “a proceeding to which the provision applies under s 43.”
Section 43 lists various classes of proceedings which in turn pick up the definitions for Chapter 4, which then pick up the meaning of proceeding at Part 4.1 as defined by s 37.
Section 37 of the Territory Act provides:
Meaning of proceeding—pt 4.1
In this part:
proceeding, for an offence, includes the following in relation to the offence:
(a) a trial, including a re-trial;
(b) a hearing, including a pre-trial hearing and ground rules hearing;
(c) a committal hearing;
(d) a proceeding in relation to bail;
(e) an interlocutory proceeding;
(f) a sentencing proceeding;
(g) an appeal or other review.
While s 37 is inclusive in nature, each of the described examples, and the term itself, imply a step having been taken to commence an action in court.
By a somewhat twisted path as set out above, s 37 is ultimately picked up by s 59.
Even if this is wrong, and the s 39 definition is not picked up by s 59, then s 59 would pick up a further, generally applied definition, the applicability and meaning of which is set out in the dictionary in the Territory Act which states:
proceeding—
(a) for this Act generally—see the Legislation Act, dictionary, part 1; and
(b) for part 2.2 (Evidence of children—audiovisual links)—see section 5; and
(c) for part 4.1 (Kinds of proceedings)—see section 37; and
(d) for division 4.4.3 (Sexual offence proceedings—protection of counselling communications)––see section 79.
The dictionary to the Legislation Act 2001 (ACT) states that “proceeding means a legal or other action or proceeding”.
For the purposes of the current consideration whether, as I have determined, s 37 is picked up as defining proceeding, or the definition in the Dictionary to the Territory Act is picked up, they share a common element on which the issue of the application of s 59 turns. That common element is that they are each directed to the circumstance where there are proceedings commenced, whether of the type set out in the inclusive definition at s 37, or described as a legal or other action or proceeding as defined by the Legislation Act 2001 (ACT).
As observed by counsel for the father, that, factually, is not the case here. Although investigative steps have been taken, investigative steps alone do not constitute proceedings in the sense set out at s 37. Nor do they constitute a legal or other action or proceeding. An investigation, or steps in an investigation, do not constitute an action or a proceeding.
Although the dictionary definition (if applicable) of “legal or other action or proceeding” is imprecise, the view that it does not extend so far as to catch a mere investigation is supported by Lander J’s treatment of the definition in Eastman v Higgins (2007) 210 FLR 464. There, having determined that an application for an inquiry pursuant to s 434 of the Crimes Act 1900 (ACT), was not judicial, but administrative in nature, Lander J determined at [45] that such an application did not meet the definition of proceeding under the Legislation Act 2001 (ACT). A police investigation is even further removed from that considered by Lander J.
The effect here is that on either definition of proceeding, s 59 does not apply to these proceedings, and access to, or use of these audiovisual recordings is uncontrolled by the Territory Act.
It might be expected that such a result was not contemplated when enacting the legislation, given that the explanatory memorandum stated that the:
New section 40M inserts an offence to protect against the misuse of an audiovisual recording by a person without authority. Misuse of the recording has a maximum penalty of 100 penalty units, imprisonment for one year or both.
The jarring application of the above construction suggests some caution before accepting such a gap in the protection of the recordings. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the plurality observed that:
If the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring a construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
However, as explained by Dennis Pearce[1] this “modern” or “broad contextualist approach” does not equate to abandoning the language of the statute, but rather, as set out in Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 312 ALR 254 at 270 [75]:
Often, the relationship between the context (including the pre-enactment history), purpose and text will be illuminated by the subject matter of the statute, as well as by the approach to expression by the drafter.
[1] Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) 90 [3.6].
Here, the language is directed to the circumstance of proceedings. The result of the use of “proceedings” is that despite the expressed desire in the explanatory memorandum to restrain misuse of audio-visual recordings, such recordings, where not accompanied by proceedings, receive no protection. In order to receive such protection, “proceedings” as used in s 51, would need to be stretched to encompass the notion of investigations.
Apart from the stretching of language that would be required, there is a further strong reason against adopting such a construction that arises because what is being interpreted is a provision that creates criminal liability and sanction. In Beckwith v R (1976) 135 CLR 569, Gibbs J at 576 held:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at 567–8; Craies on Statute Law 7th ed, pp 529–34. The rule is perhaps one of last resort.
A majority of the High Court in Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at 211 [45] said that “an appreciation of the heavy hand that may be brought down by the criminal law suggests the need for caution in accepting any loose, albeit “practical” construction of [the relevant provision].”
Further, McHugh J in Krakouer v The Queen (1998) 194 CLR 202 at 223 [62], which was cited with approval in Milne v The Queen (2014) 252 CLR 149 at 164 [38], quoted Jordan CJ in Ex parte Fitzgerald Re Gordon (1945) 45 SR (NSW):
If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.
Hence, although a concern may be raised that construing the provision such that s 59 has no application where no proceedings have been commenced denudes recordings of protection, given the provision is one that imposes criminal responsibility, and given the limitations inherent to the use of the word “proceedings,” the provision should not be construed to cover the current circumstances.
Accordingly, the directions previously made by Registrar Crawley should be reinstated. Further directions should be made permitting the parties to approach the Registrar as to other dealing with the recordings, such as their provision to relevant experts.
Given the issues with the construction of the legislation, this judgment ought to be provided to the Territory Attorney-General for consideration, both to alert the Attorney to the lacuna in the protection of such recordings, but also, and importantly, to alert the Attorney to the restrictions that the legislation has on the use of material from criminal proceedings in establishing what is in the best interests of children, not only in this Court, but also, it may be thought, in welfare proceedings in the Children's Court of the ACT.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 4 March 2021
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Evidence
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Discovery
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