Jarvis and Pike
[2012] FMCAfam 994
•6 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JARVIS & PIKE | [2012] FMCAfam 994 |
| FAMILY LAW ─ Evidence ─ refusal of Court to give a certificate pursuant to Section 128 of the Evidence Act 1995 (Cth) ─ where applicant for certificate made no relevant admissions. |
| Family Law Act 1975 (Cth) Family Law Rules Federal Magistrates Court Rules2001 Federal Magistrates Court Regulations Evidence Act 1995 |
| Ferrall and McTaggart v Blyton; the Attorney General of the Commonwealth (Intervener) (2000) FLC 93-053 |
| Applicant: | MR JARVIS |
| Respondent: | MS PIKE |
| File Number: | MLC 3145 of 2012 |
| Judgment of: | Walters FM |
| Hearing date: | 6 August 2012 |
| Date of Last Submission: | 6 August 2012 |
| Delivered at: | Melbourne (in Shepparton) |
| Delivered on: | 6 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Testart |
| Solicitors for the Applicant: | Costanzo Lawyers |
| Counsel for the Respondent: | Mr McNamee |
| Solicitors for the Respondent: | Joliman Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr McLeod |
| Solicitors for Independent Children’s Lawyer: | Faram Ritchie Davies |
ORDERS
IT IS ORDERED THAT:
The father forthwith do all such acts and things to undertake psychological assessment and report by a psychologist as recommended by the independent children’s lawyer, to explain personality functioning, interpersonal abilities and psychosexual behaviours (including risk) at the father’s expense, with the psychologist at liberty to have access to all Court documents, material produced by way of subpoena in this matter, as well as the Section 11F memorandum written by Dr J and dated 31 July 2012 – such report once written be provided to each of the parties’ solicitors as soon as practicable.
Pursuant to s 62G(2) of the Family Law Act1975, the parties and the children [X] and [Y] both born [in] 1996 and [Z] born [in] 2001 attend upon a Family Consultant (“the Family Consultant”) nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry, for the purposes of the preparation of a Family Report (to be conducted in the long summer school vacation, if possible) to be given to the Court prior to 21 December 2012, such Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those views);
(b)the matters set out in ss.60CC, 61DA and 65DA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.
The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one party.
Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;
(b)all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and
(c)any intervention or restraining orders currently in force.
If a party is not represented by a solicitor, then within 7 days of being notified of the Consultant that party do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the within proceedings;
(b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the within proceedings; and
(c)any intervention or restraining orders currently in force.
IT IS ORDERED BY CONSENT THAT:
Until further order:
The children of the marriage [X] (“[X]”) and [Y] (“[Y]”) both born [in] 1996 and [Z] (“[Z]”) born [in] 2001 live with the mother and spend time with the father as follows:
(a)in respect of [X] and [Y], in accordance with their wishes; and
(b)in respect of [Z], each alternate Sunday from 10.00 a.m. until 5.00 p.m., with such time to be supervised by [omitted] Community Services in [omitted], commencing Sunday, 19 August 2012.
The parties forthwith do all such things and sign all such documents necessary to facilitate the execution of the order in paragraph 7(b), with the costs to be borne by the husband.
The husband communicate with the children each Monday and Wednesday between 7.00 p.m. and 7.30 p.m. by telephoning the children, with the wife to facilitate such communication.
Save for [Z] who is due to finish primary school this semester, the parties be restrained from enrolling the children in any other school until further order.
The parties’ legal representatives inspect subpoenaed documents but be restrained from disclosing the personal details of the parties (such as their addresses).
Until further order, the husband, his servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the wife; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.
Until further order, the wife, her servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the husband; and
(b)discussing these proceedings,
to, with or in the presence or hearing of the said children (or any of them), and from permitting any other person to do so.
The matter be adjourned to the Shepparton Circuit:
(a)on 12 November 2012 at 10.00 a.m. in the Duty List; and
(b)in the first sittings in February 2013 at 10.00a .m. (in Cobram) for final hearing (with an estimated hearing time of 2-3 days).
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations 2000.
The husband do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the commencement of the said sittings.
The wife do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the commencement of the said sittings.
The independent children’s lawyer do file and serve all further affidavits and other material to be relied upon by not later than 7 days prior to the commencement of the said sittings.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the commencement of the said sittings.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
The father has sought a Certificate under Section 128 of the Evidence Act (Cth) in relation to the evidence to be given by him in the Family Report and in the psychological assessment referred to in these orders. In the light of the evidence contained in the father’s affidavit sworn 26 July 2012 (being the separate affidavit in response to paragraphs 22 to 30, 36 to 38 and 41 of the wife’s affidavit sworn 26 May 2012) and the evidence given by the father as referred to in the Family Consultant’s memorandum to the Court dated 31 July 2012, the Court is not satisfied that there are reasonable grounds for the husband’s objection giving evidence for the family report and the psychological assessment. The Court is not satisfied that the evidence to be given by the husband may tend to prove in any relevant sense, that the husband has committed an offence, or that he is liable to a civil penalty.
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, hearing, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
Pursuant to ss.65DA(2) & 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Jarvis & Pike is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3145 of 2012
| MR JARVIS |
Applicant
And
| MS PIKE |
Respondent
REASONS FOR JUDGMENT
(Ex tempore – but with a Preamble and relatively brief Background)
Preamble
On 6 August 2012, I made orders to the effect that the father undertake a psychological assessment, and that both parties and the children attend upon a family consultant to enable the preparation of a family report.
The father, through his counsel (Mr Marc Testart), had opposed the making of the orders unless the Court was also prepared to grant a certificate pursuant to section 128 of the Evidence Act 1995 (Commonwealth) relating to the evidence to be given by the father at the appointments with the psychologist and the family consultant – but I was not persuaded that such a certificate should be granted.
I am aware that the father has appealed from the orders made on 6 August 2012. Although a copy of the notice of appeal was emailed to me by the Registrar of this Court, I have not read it and I am not aware of the grounds of appeal relied upon. In my opinion, to read the notice of appeal could open the door to the possibility of a suggestion that these Reasons may have been prepared in such a way as to meet or otherwise deal with the appeal grounds ─ although I would hope that the likelihood of such a suggestion is remote.
Background
The father was born in 1971, and the mother was born in 1975. They began a relationship in or about 1992 and married [in] 1995. They separated on 4 October 2010.
There are three children of the marriage: twin girls born in 1996 (now aged 15) and a boy born in 2001 (now aged 11).
The father filed an initiating application on 11 April 2012. He sought parenting orders only, including orders to the effect that the children live with the mother and spend time with him "as agreed between the parties". An amended initiating application was filed on 21 May 2012. In it, the father sought a final parenting order to the effect that the children spend time with him each weekend from 8:30 PM on Friday to 6 PM on Sunday. He also sought final orders in relation to property settlement.
The father also sought other orders, including an interim order to the effect that the mother be restrained by injunction from denigrating him to the children (or in the presence or hearing of the children), and orders for the appointment of an independent children's lawyer and the preparation of a family report.
The mother filed a response on 26 May 2012. She sought orders to the effect that she have sole parental responsibility for the children, that they live with her and that the father's time with them "be reserved". She also sought orders relating to property settlement. Like the father, she sought an interlocutory order to the effect that an independent children's lawyer be appointed.
On 29 May 2012, the mother filed a notice of child abuse or family violence. Her description of the acts or omissions alleged to constitute family violence is as follows:
1. The husband has been verbally, emotionally, psychologically, sexually and physically abusive towards me during the course of the marriage.
2. The husband and his parents would constantly denigrate and belittle me in the presence of the children, friends and other family members. The husband has also threatened to harm/hurt me in the presence of the children.
3. On one particular occasion, in or about September 2009, the husband was sexually abusing me when (one of the children) entered the room and witnessed the husband physically and sexually abusing me.
4. The husband would frequently sexually abused me, citing that "there were spirits inside me that were making me angry and that's why I can't stop hurting you".
Her description of the facts alleged to constitute a risk of family violence is as follows:
1. The husband has physically, verbally, emotionally and sexually abused me in the presence of one or all of the children.
2. The husband has a long history of anger management issues and has belittled and verbally abused the children, without any regard for their emotional well-being.
The mother listed various paragraphs of her affidavit filed 26 May 2012 which she asserted contained evidence of the allegations of family violence and the facts constituting a risk of family violence.
On 28 May 2012, Federal Magistrate McGuire made orders – by consent – to the following effect:
a)An independent children's lawyer was appointed.
b)A "section 11F conference" was ordered (to take place on 27 July 2012).
c)A "section 91B order" was made, requesting the Department of Human Services, [X] to intervene in the proceedings.
d)The proceedings were otherwise adjourned to the sittings of this Court in Shepparton on 6 August 2012 (in the duty list).
Other orders were made on 28 May 2012, but they are not presently relevant.
On 5 July 2012, the father filed an application in a case seeking the following order:
(The father) be granted a certificate in relation to (these proceedings) concerning:
· all evidence arising from (the mother's affidavit filed 26 May 2012); and
· all evidence which may otherwise be used against him to show that he has committed an offence punishable by imprisonment,
including, but not limited to:
· evidence given in cross examination;
· evidence given in chief; and
· evidence given by affidavit
In support of the application in a case, the father swore an affidavit on 3 July 2012. He deposed as follows:
2. I make this application in support of my application for a certificate pursuant to section 128 of the Evidence Act (Commonwealth) 1995.
3. The wife has made a series of extremely serious allegations about me in her affidavit dated 26 May 2012.
4. Currently my time with my children has been suspended. I have only seen them once in the last five months.
5. I would like to give evidence in relation to these allegations, as it is necessary in order for the Court to make a decision as to what is in the best interests of our children. My legal representatives, however, have advised me that giving evidence in relation to these allegations may place me at risk of incrimination.
6. For example, the wife has alleged that I have raped her on several occasions. I would like to give my side of the story in relation to these allegations. My lawyers have informed me, however, that if, for example, I admit to having sex with my wife on the occasions that she claims I have raped her, but say that it was consensual, I am partially admitting to the allegation of rape. This puts me 'between a rock and a hard place'. On the one hand I would desperately like to see my children. On the other hand, I cannot afford to … give any evidence if it might be twisted against me by the police (if) they choose to follow up the wife's allegations. My legal advisers have therefore advised me to object to giving any further evidence in relation to these proceedings.
7. I am told that without the certificate that I am seeking, I would have to object to giving evidence, be it in court at the hearing, before the section 11F reporter on 27 July 2012, or by affidavit. This makes it practically impossible for me to give evidence regarding these allegations and to give the Court a proper and balanced perspective of my capacity as a parent.
8. Accordingly, I object to giving evidence and humbly submit that it is in the interests of justice that I be granted a certificate pursuant to section 128 of the Evidence Act.
The application in a case was heard on 13 July 2012. Mr Testart appeared for the father, Ms Jardine for the mother and Mr McLeod for the independent children's lawyer. A transcript of the hearing was prepared, and speaks for itself.
Having regard to the decision of the Full Court in Ferrall and McTaggart v Blyton; the Attorney General of the Commonwealth (Intervener) (2000) FLC 93-053, I was eventually persuaded to make the following orders:
1. Subject to paragraphs 2 and 3 below, and in support of his amended initiating application filed 21 May 2012, the husband have leave to file and serve a separate, stand alone affidavit of evidence in chief fully detailing his response to the matters contained in paragraphs 22 to 30, 36 to 38 and 41 of the wife's affidavit sworn 26 May 2012 ("the Separate Affidavit").
2. Notwithstanding paragraph 1 above:
a) the husband have leave to file a further affidavit in response to those matters contained in the wife's affidavit sworn 26 May 2012 not already dealt with in the Separate Affidavit ("the Principal Affidavit"); and
b) the husband must file and serve the Separate Affidavit (if any) and the Principal Affidavit (if any) by not later than 4 p.m. on 31 July 2012;
3. Pursuant to section 128 of the Evidence Act 1995 (Cth), a certificate be given to the husband in relation to the particular evidence given willingly by him in the Separate Affidavit, to the extent (and only to the extent) that the particular evidence in the Separate Affidavit may tend to prove that the husband has committed an offence punishable by imprisonment against or arising under an Australian law.
4. A sealed copy of the Separate Affidavit be attached to the said certificate pursuant to section 128 of the Evidence Act 1995 (Cth), and the said certificate (with the Separate Affidavit attached to it) remain on the court file.
5. Pursuant to section 128 of the Evidence Act 1995 (Cth), a further certificate (“the Second Certificate”) be given to the husband in relation to the particular evidence given willingly by him at the appointment with a family consultant under section 11F of the Family Law Act 1975 (as ordered in paragraph 4 of the orders made in this Court on 28 May 2012) ("the Section 11F Conference"), to the extent (and only to the extent) that the particular evidence –
a) clearly and directly relates to either–
i) the matters contained in any of paragraphs 22 to 30, 36 to 38 and 41 of the wife's affidavit sworn 26 May 2012; or
ii) the Separate Affidavit; and
b) may tend to prove that the husband has committed an offence punishable by imprisonment against or arising under an Australian law.
6. A sealed copy of the family consultant’s memorandum relating to the Section 11F Conference be attached to the Second Certificate, and the Second Certificate (with the said memorandum attached to it) remain on the court file.
The Separate Affidavit and the Principal Affidavit were both sworn on 26 July 2012 and filed on the following day. In accordance with the orders of 13 July 2012, the certificate relating to the Separate Affidavit was prepared and placed on the court file.
The section 11F Conference took place on 27 July 2012. In accordance with the orders of 13 July 2012, the family consultant's memorandum to the Court was attached to the certificate relating to it and placed on the court file.
The documents attached to the two certificates speak for themselves. In my opinion, neither document contains evidence which may tend to prove to the father has committed an offence punishable by imprisonment against or arising under an Australian law.
As foreshadowed, the proceedings came before me in the (extremely busy) duty list in Shepparton on 6 August 2012. The parties had agreed to the preparation of a full family report (in accordance with the provisions of section 62G(2) of the Family Law Act 1975) and an order to the effect that the father undertake a psychological assessment dealing with personality functioning, interpersonal abilities and psychosexual behaviours – but counsel for the father (Mr Marc Testart) urged the Court to give the father a certificate under section 128 of the Evidence Act (Cth) in relation to the father's evidence to be given in the process of the preparation of both the family report and the psychological assessment. Mr Testart indicated that the father would or could not consent to participate in the preparation of the report and the psychological assessment without the certificate.
After hearing submissions, I made the orders that now form the subject of the father's appeal. The orders, and the transcript of the hearing on 6 August 2012, speak for themselves.
I recorded the following notation in paragraph 21 of the orders made on 6 August 2012:
The father has sought a Certificate under section 128 of the Evidence Act (Cth) in relation to the evidence to be given by him in the Family Report and the psychological assessment referred to in these orders. In the light of the evidence contained in the father's affidavit sworn 26 July 2012 (being the Separate Affidavit in response to paragraphs 22 to 30, 36 to 38 and 41 of the wife's affidavit sworn 26 May 2012) and the evidence given by the father as referred to in the Family Consultant's memorandum to the Court dated 31 July 2012, the Court is not satisfied that there are reasonable grounds for the husband's objection to giving evidence for the family report and the psychological assessment. The Court is not satisfied that the evidence to be given by the husband may tend to prove, in any relevant sense, that the husband has committed an offence, or that he is liable to a civil penalty.
Brief ex tempore reasons
I delivered the following, brief ex tempore reasons on 6 August 2012:
1. The father has sought a certificate under section 128 of the Evidence Act (Commonwealth) in relation to the evidence to be given by him in the proposed family report, and in the psychological assessment referred to in these orders.
2. In the light of the evidence contained in the father’s affidavit sworn 26 July 2012 (being the Separate Affidavit in response to paragraphs 22 to 30, 36 to 38, and 41 of the wife's affidavit sworn 26 May 2012) and the evidence given by the father as referred to in the family consultant’s memorandum given to the Court and dated 31 July, the Court is not satisfied that there are reasonable grounds for the husband’s objections to giving evidence for the family report and the psychological assessment. The Court is not satisfied that the evidence to be given by the father may tend to prove, in any relevant sense, that the father has committed an offence, or that he is liable to a civil penalty.
3. Further, in the light of the contents of his affidavit (being the Separate Affidavit) and the comments attributed to him in the family consultant's section 11F memorandum to the Court, there is simply no need for a certificate. To suggest that there is such a need is to argue that a certificate must be granted to all parties whenever they are involved in a section 11F conference, the preparation of a family report or a psychological report, and the like, just in case they might make some admission to the effect that they were in a particular place when some offence may have been committed, or even to the effect that certain otherwise innocuous events may have occurred. In this case, the father has made no relevant admissions at all, and, in my view, it is a waste of time to grant the certificate – which is completely unnecessary. There would have to be far more evidence before me to the effect that the father was either at a real risk of incriminating himself in some way, or likely to be at such a risk, before I could be persuaded to give a certificate. Beyond that, I am not prepared to give further reasons.
For the reasons indicated, I was not prepared to give the husband the certificate or certificates he sought.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Walters FM
Date: 14 September 2012
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