Jarvis & Pike
[2013] FamCAFC 196
•10 December 2013
FAMILY COURT OF AUSTRALIA
| JARVIS & PIKE | [2013] FamCAFC 196 |
| FAMILY LAW – APPEAL – EVIDENCE – Certificate pursuant to s 128 of the Evidence Act 1995 (Cth) – where the father appeals against orders made by the Federal Magistrate on 13 July 2012 granting the father s 128 certificates in relation to parts of the affidavit evidence and the evidence he may give at an appointment with a family consultant – where the Full Court was not persuaded the Federal Magistrate erred in refusing to grant the father a broad certificate covering all evidence to be given by the father – no merit found in the grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – EVIDENCE – Certificate pursuant to s 128 of the Evidence Act 1995 (Cth) – where the father appeals against orders made by the Federal Magistrate on 6 August 2012 requiring the father to undertake a psychological assessment for the preparation of a family report – where the orders contained a notation that the father had sought a s 128 certificate in relation to such evidence but that his Honour was not satisfied there were reasonable grounds for the father’s objection to giving that evidence – where the Federal Magistrate omitted to make an order formally dismissing the father’s application – where the Full Court added the appropriate order using the slip rule to enable the appeal to proceed – where the Full Court was of the view that the test for what constitutes “reasonable grounds for an objection to give evidence” was broad and the court ought to have given the father “significant latitude” in determining whether he had reasonable grounds for objecting – where the Federal Magistrate erred by taking into consideration the fact the father had made “no relevant admissions” and determining there would have to be “far more evidence” that the father was “either at a real risk of incriminating himself in some way, or likely to be at such a risk” – merit found in these grounds – appeal allowed and the matter re-determined – a s 128 certificate granted covering the evidence to be given by the father to the family consultant and the psychologist. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Atkinson and Atkinson (1997) FLC 92-728 DJL v The Central Authority (2000) 201 CLR 226 Ferrall and McTaggart(trustees for Sapphire Trust) v Blyton (2000) FLC 93-054 Hourd & Hourd [2011] FamCAFC 177 L Shaddock & Associates Pty Ltd v Parramatta City Council [No. 2] (1982) 151 CLR 590 Murray v Director, Family Services, ACT (1993) FLC 92-416 Milham v Stanford (2001) FLC 93-073 Russell v Russell (1999) FLC 92-877 |
| APPELLANT: | Mr Jarvis |
| RESPONDENT: | Ms Pike |
| INDEPENDENT CHILDREN’S LAWYER: | Faram Ritchie Davies |
| FILE NUMBER: | MLC | 3145 | of | 2012 |
| APPEAL NUMBER: | SOA | 68 | of | 2012 |
| SOA | 75 | of | 2012 |
| DATE DELIVERED: | 10 December 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Finn, Strickland & MacMillan JJ |
| HEARING DATE: | 8 March 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT ORDERS DATES: | 13 July 2012 & 6 August 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 994 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr M. Testart |
| SOLICITOR FOR THE APPELLANT: | Costanzo Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Swart |
| SOLICITOR FOR THE RESPONDENT: | Victoria Legal Aid |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Faram Ritchie Davies |
Orders
Appeal number SOA 75 of 2012 be dismissed.
Pursuant to the slip rule the orders made by Federal Magistrate Walters (as he then was) on 6 August 2012 be amended to include the following order:
The oral application by the father for a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) in relation to the evidence given willingly by him to the family consultant for the purposes of the preparation of a Family Report and to the psychologist for the purposes of a psychological assessment be dismissed.
Appeal number SOA 68 of 2012 be allowed.
The order (inserted pursuant to Order 2 of these Orders) that the oral application of the father for a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) be dismissed, and the notation in paragraph 21 of the orders made on 6 August 2012 be set aside and in lieu thereof the following orders be made:
21.Pursuant to s 128 of the Evidence Act 1995 (Cth), a certificate be given to the father in relation to the particular evidence given willingly by him to the family consultant for the purposes of the preparation of the Family Report and to the psychologist for the purposes of the psychological assessment of the father, to the extent that the particular evidence relates to the matters contained in any of paragraphs 22 to 30, 36 to 38 and 41 of the mother’s affidavit sworn 26 May 2012, or the separate affidavit filed by the father on 27 July 2012 responding to those paragraphs of the mother’s affidavit, and may tend to prove that the father has committed an offence punishable by imprisonment against or arising under an Australian law.
21A.Sealed copies of the Family Report and the psychological assessment be attached to the said certificate and that certificate with the attachments remain on the court file.
There be no order as to costs in either appeal.
In appeal number SOA 68 of 2012 the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect to the costs incurred by the appellant father in relation to the appeal.
The oral application of the respondent mother for a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarvis & Pike has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 68 of 2012; SOA 75 of 2012
File Number: MLC 3145 of 2012
| Mr Jarvis |
Appellant
And
| Ms Pike |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal in appeal number SOA 75 of 2012, filed on 7 November 2012 pursuant to an order granting an extension of time to appeal, Mr Jarvis (“the father”) seeks leave to appeal and if leave is granted to appeal against interlocutory orders made by Federal Magistrate Walters (as he then was) on
13 July 2012. Although the father seeks leave to appeal against all orders made, it is in reality only sought against two of those orders. First, the order that the father be given a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) (“s 128 certificate”) in relation to the evidence provided by him in an affidavit (which he was given leave to file responding to specific paragraphs of an affidavit filed by Ms Pike (“the mother”) on 26 May 2012) to the extent that that evidence may tend to prove that the father has committed an offence punishable by imprisonment against or arising under an Australian law. Secondly, the order that he also have a s 128 certificate in relation to the evidence that he may give at the appointment with a family consultant under
s 11F of the Family Law Act 1975 (Cth) (“the Act”) to the extent that that evidence relates to the matters contained in any of the specific paragraphs in the mother’s affidavit referred to above, and in the father’s affidavit in response, and that may tend to prove that the father has committed an offence punishable by imprisonment against or arising under an Australian law.
By Further Amended Notice of Appeal in appeal number SOA 68 of 2012 also filed on 7 November 2012, the father purports to appeal against orders made by the Federal Magistrate on 6 August 2012. Those orders provided, inter alia, for the father to undertake a psychological assessment and for the preparation of a family report. In making those orders the Federal Magistrate noted that the father sought a s 128 certificate in relation to the evidence to be given by the father at the appointments with the psychologist and the family consultant.
His Honour further noted that he was not satisfied that there were reasonable grounds for the father’s objection to giving that evidence, but unfortunately
his Honour then omitted to make an order formally dismissing the father’s application in this regard. It is only this issue that the father agitates in this appeal, but the difficulty is that there was no order made that could be appealed against. We propose though to apply the slip rule to add the appropriate order to the orders made by his Honour on 6 August 2012 to enable the appeal to proceed.
The next matter to note is that although in the Notice of Appeal filed on
7 November 2012 in appeal number SOA 75 of 2012, there is an application for leave to appeal, we do not consider that leave is necessary, and we proceed accordingly. In paragraph 2 of her written submissions, counsel for the mother raised this issue and suggested that leave to appeal was required, but at the hearing before us she indicated that the mother was not pursuing that submission.
In both appeals the father seeks identical orders, namely that he be granted a s 128 certificate in relation to the mother’s affidavit filed on 26 May 2012, and all evidence which may otherwise be used to show he has committed an offence punishable by imprisonment. In the alternative, the father seeks that he be granted a s 128 certificate in relation to any psychiatric or psychological assessment of him and his participation in the family report as ordered by the Federal Magistrate on 6 August 2012. Again, there is an obvious difficulty here in that both of these orders cannot be sought in both of the appeals. The first order can only be made in the appeal against the orders of 13 July 2012, and the second order sought can only relate to the “orders” made on 6 August 2012, and again we proceed on that basis.
The mother opposes both appeals. By email to the Regional Appeals Registrar on 21 January 2013, the independent children’s lawyer advised he would not be participating in the appeals.
Given that both appeals relate to s 128 of the Evidence Act 1995 (Cth) we set out that section in so far as it is relevant as follows:
128 Privilege in respect of self incrimination in other proceedings
(1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
(3)If the court determines that there are reasonable grounds for the objection, the court is to inform the witness:
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)that the court will give a certificate under this section if:
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
(4)The court may require the witness to give the evidence if the court is satisfied that:
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b)the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6)The court is also to cause a witness to be given a certificate under this section if:
(a) the objection has been overruled; and
(b)after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7) In any proceeding in an Australian court:
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
Note:Subsection 128(7) differs from subsection 128(7) of the NSW Act. The NSW provision refers to a NSW Court instead of an Australian Court.
(8)Subsection (7) has effect despite any challenge, review, quashing or calling into question on any ground of the decision to give, or the validity of, the certificate concerned.
…
(11)A reference in this section to doing an act includes a reference to failing to act.
…
Background
The father was born in 1971 and the mother was born in 1975.
The parties commenced a relationship around 1992, married in 1995 and separated on 4 October 2010.
There are three children of the marriage, X and Y, both born in 1996, and Z, born in 2001.
On 11 April 2012 the father filed an Initiating Application seeking parenting orders. On 21 May 2012 the father filed an Amended Initiating Application seeking final orders in relation to both parenting and property settlement. The father also sought orders for the appointment of an independent children’s lawyer and the preparation of a family report.
The mother filed her response on 26 May 2012, in which she sought orders to the effect that she have sole parental responsibility for the children, that the children live with her, and that the father’s time with the children “be reserved”. The mother also sought orders for the appointment of an independent children’s lawyer and orders in relation to property settlement.
On 28 May 2012 Federal Magistrate McGuire (as he then was) made orders by consent providing, inter alia, for the appointment of an independent children’s lawyer, a “section 91B order” requesting the Department of Human Services, Victoria to intervene in the proceedings, for a “section 11F conference” to take place on 27 July 2012, and for the proceedings to otherwise be adjourned until 6 August 2012.
On 29 May 2012 the mother filed a Notice of Child Abuse or Family Violence in which she alleged the father was “verbally, emotionally, psychologically, sexually and physically abusive” towards her during the marriage, that the father and his parents would “constantly denigrate and belittle” her in the presence of the children, friends and other family members, that the father threatened to hurt her in the presence of the children, and that in or about September 2009 the children witnessed the father physically and sexually abuse her.
On 5 July 2012 the father filed an Application in a Case seeking a s 128 certificate in relation to all evidence in the mother’s affidavit of 26 May 2012 and all evidence which may otherwise be used to show he had committed an offence punishable by imprisonment. In support of his application the father swore an affidavit on 3 July 2012.
The father’s application in a case came before Federal Magistrate Walters on
13 July 2012 and his Honour made orders. In summary, those orders provided for the father to file a “Separate Affidavit” setting out his response to the allegations made by the mother in specified paragraphs of her affidavit of
26 May 2012, and a “Principal Affidavit” setting out his response to matters not already dealt with in the Separate Affidavit. As referred to already, the orders then provided for a s 128 certificate to be granted in relation to the evidence provided by the father in his Separate Affidavit, to the extent that that evidence may tend to prove the father had committed an offence punishable by imprisonment. A further s 128 certificate was granted in relation to the evidence given by the father at his appointment with the family consultant, to the extent that that evidence related “clearly and directly” to matters contained in the specified paragraphs of the mother’s affidavit or the father’s Separate Affidavit, as well as to matters which may prove the father had committed an offence punishable by imprisonment.
His Honour did not deliver separate reasons for judgment in relation to the orders made on 13 July 2012, and any reasons therefor can only be found in the transcript of the hearing. Indeed, his Honour said in paragraph 16 of his reasons for judgment published on 14 September 2012 in relation to the orders that he made on 6 August 2012, that, “[a] transcript of the hearing [on 13 July 2012] was prepared, and speaks for itself.”
The Separate Affidavit and Principal Affidavit were both filed on 27 July 2012. The s 128 certificate was prepared in relation to the Separate Affidavit and placed on the court file.
The s 11F conference took place on 27 July 2012 and the s 128 certificate was attached to the family consultant’s memorandum dated 31 July 2012.
The matter again came before the Federal Magistrate on 6 August 2012, when the parties agreed to the preparation of a full family report and an order was made requiring the father to undertake a psychological assessment. Counsel for the father indicated the father would or could not consent to participate in the preparation of the report and the psychological assessment without a s 128 certificate. In refusing to grant the father a s 128 certificate, his Honour delivered brief ex tempore reasons, but, to repeat, he omitted to make an order dismissing the application.
On 3 September 2012 the father filed a Notice of Appeal (SOA 68 of 2012) in relation to “the orders” made on 6 August 2012.
On 14 September 2012 the Federal Magistrate published his brief ex tempore reasons of 6 August 2012, with the addition of a preamble and background. His Honour noted in the preamble that he was aware of the father’s appeal against “the orders” of 6 August 2012, but that his Honour had not read the Notice of Appeal and was not aware of the grounds relied upon so that it could not be suggested the reasons “may have been prepared in such a way as to meet or otherwise deal with the appeal grounds”.
To summarise those reasons, the Federal Magistrate was not satisfied there were reasonable grounds for the father’s objections to giving evidence for the purposes of the family report and the psychological assessment. His Honour considered there would have to be “far more evidence … to the effect that the father was either at risk of incriminating himself in some way, or likely to be at such a risk” before his Honour would be persuaded to grant a s 128 certificate. His Honour remarked that “[t]o 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”.
On 29 October 2012 the father filed a Further Amended Notice of Appeal in SOA 68 of 2012.
On 31 October 2012 Strickland J made orders extending the time for the filing of an appeal against the orders of 13 July 2012 (SOA 75 of 2012) and consolidating the hearing of the two appeals.
On 7 November 2012 the father filed a Further Amended Notice of Appeal (SOA 68 of 2012) and a Notice of Appeal (SOA 75 of 2012).
Grounds of appeal
At the hearing of the appeal counsel for the father made an oral application to amend the grounds of appeal contained in the Further Amended Notice of Appeal (SOA 68 of 2012) and the Notice of Appeal (SOA 75 of 2012), both filed on 7 November 2012, so as to reflect the grounds set out in Appendix B of the father’s written submissions filed on 12 February 2013. As counsel for the mother did not object to the amendment, we granted leave for the father to rely on Further Amended Notices of Appeal dated 1 March 2013 which were tendered to us at the hearing. The amended grounds were the same in both appeals and they are as follows (incorrect paragraph numbering in original):
1)The Federal Magistrate made an error of law in failing to grant the Appellant the certificate he sought pursuant to s 128 of the Evidence Act (Cth) 1995 on 13 July 2012.
Further, and in the alternative,
3 a) The Federal Magistrate made an error of law in requiring the Appellant to make admissions in order to obtain a certificate pursuant to s128 of the Evidence Act (Cth) 1995; and, in any event
b)even if the Appellant was required to make admissions in order to obtain such a certificate, the Federal Magistrate made an error of mixed law and fact in finding that the Appellant had made no relevant admissions at all.
Further, and in the alternative,
4 a) The Federal Magistrate made an error of law in requiring the Appellant to show either he was at a real risk of incriminating himself or that he was likely to be at such a risk before obtaining a certificate pursuant to s128 of the Evidence Act (Cth) 1995; and, in any event
b) even if the Appellant was required to show either that he was at a real risk of incriminating himself or that he was likely to be at such a risk before obtaining such a certificate, the Federal Magistrate made an error of mixed law and fact in finding that the Appellant was not at a real risk of incriminating himself nor that he was likely to be at such a risk.
Further, and in the alternative,
5. The Federal Magistrate made an error of law in applying a public interest test in relation to obtaining a certificate pursuant to s128 of the Evidence Act (Cth) 1995 whereby the Appellant, in general, should not be entitled to the protection of such a certificate because it is in the public interest that he should be prosecuted.
The incorrect numbering came about because Ground 2 in the initial Notices of Appeal was abandoned, but no change was made to the numbering in the Further Amended Notices of Appeal.
With Ground 1 it can immediately be seen that on its face that it can only be a ground of appeal in the appeal against the orders made on 13 July 2012, yet it is a ground that is also put forward in the appeal against “the orders” made on
6 August 2012. Quite clearly, in that appeal, the ground should only refer to “the orders” made on 6 August 2012 and not the orders made on 13 July 2012.
It is apparent that this error stems from the attempt by the father to treat both appeals as one. However, that approach is ill-conceived given that there are in fact two discrete appeals, with one appeal against the orders made on 13 July 2012 and the other against “the orders” made on 6 August 2012. It is not an answer for, or an explanation of, this ill-conceived approach by the father to say, as he does, that if the appeal against the orders made on 13 July 2012 is successful, and the orders are made as sought then that will subsume the appeal against “the orders” made on 6 August 2012. That may very well be the case, but given the manner in which these appeals have been presented it is simply not open to claim that any errors made by the Federal Magistrate in making “the orders” on 6 August 2012 can be used to successfully challenge the orders made on 13 July 2012. For example, the complaints in Grounds 3(a), 3(b), 4(a) and 4(b) only arise out of the hearing on 6 August 2012, and thus cannot be a basis to challenge the orders made on 13 July 2012. Fortunately this was recognised by the father’s counsel in his written submissions when in footnotes he identified that those grounds only relate to “the orders” made on 6 August 2012.
However, there is also a problem with Ground 5. That emanates from something that the Federal Magistrate said during the hearing on 13 July 2012, and thus it can only be challenged in the appeal against the orders made on that day, and not in the appeal against “the orders” made on 6 August 2012.
Before leaving this topic we note that the mother’s summary of argument was due to be filed and served by 24 February 2013, but that order was not complied with. At the hearing of the appeal counsel for the mother explained that legal aid had just been granted. She then tendered her summary of argument which comprised three paragraphs. In the circumstances we agreed to receive those sparse submissions.
Discussion
Appeal number SOA 75 of 2012 against the orders made on 13 July 2012
Ground 1
The application before the Federal Magistrate on 13 July 2012 was an application by the father seeking an order in the following terms:
1.The Applicant be granted a certificate in relation to proceedings MLC 3145 of 2012 concerning:
a)all evidence arising from the affidavit of the Respondent dated 26 May 2012; and
b)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:
c) evidence given in cross-examination;
d) evidence given in chief; and
e) evidence given by affidavit.
However, at the commencement of the hearing, a Minute of Order (which was not before us) was apparently handed up to his Honour which deleted paragraph 1(a) of the orders originally sought. Thus the application became that a s 128 certificate be granted concerning all evidence which may be used against the father to show that he has committed an offence punishable by imprisonment.
His Honour refused to grant the s 128 certificate sought, and as far as they can be discerned from the transcript of the hearing on 13 July 2012 his Honour’s reasons for not making that order are as follows:
a)His Honour expressed concern at providing a “broad certificate to cover everything when it really – the interests of justice may not require [the father] to give evidence at all. It may be completely irrelevant to anything.”
(Transcript 13 July 2012, page 8, lines 33-35)
b)His Honour subsequently suggested that it is “using a sledgehammer to crack a nut to use a certificate for an entire affidavit cross-examination and the like before I even have any idea what that’s going to be about. That would be a misuse of the court’s discretion.”
(Transcript 13 July 2012, page 15, lines 19-21)
c)Then his Honour emphasised that he “shouldn’t have to give a certificate unless it’s necessary for the interests of justice in these proceedings for that evidence to be given.”
(Transcript 13 July 2012, page 15, lines 40-41)
d)His Honour then concluded as follows:
… [O]n the basis of Ferrall & Blyton, it certainly looks to me like I should direct [the father] to file a separate affidavit dealing with the allegations that are raised in paragraph 22 to 30, 36 to 38 and 41 of the affidavit of the wife of 26 May and a certificate can apply to that. But I can’t possibly rule at this point in relation to what he might say in cross-examination because we haven’t got to that point. And that may, for example, raise a completely different matter that hasn’t been dealt with in the mother’s affidavit and that your client may not have dealt with in his affidavit either, even if I gave him carte blanche to deal with it now.
(Transcript 13 July 2012, page 16, line 42 – page 17, line 2)
Ferrall & Blyton is a Full Court decision reported as Ferrall and McTaggart(trustees for Sapphire Trust) v Blyton (2000) FLC 93-054. There it was held that the discretion to grant a s 128 certificate is not limited to a situation where a witness is asked a particular question in cross-examination, and the availability of a s 128 certificate clearly applies to evidence given in chief. Applying that decision here, a s 128 certificate can be granted to cover evidence-in-chief given by way of affidavit.
As can be seen, it is not readily apparent on what basis the Federal Magistrate declined to make the order sought. The most that can perhaps be said is that
his Honour considered it would be inappropriate to extend the s 128 certificate beyond the evidence given in response to the particular paragraphs in the mother’s affidavit because without knowing what other or further evidence the father might give, his Honour could not determine whether it was necessary in the interests of justice for that evidence to be given in the proceedings.
It is submitted on behalf of the father that there is error in that approach, but the particular error in relation to the orders made on 13 July 2012 is not specifically identified either in the Notice of Appeal or in the father’s written or oral submissions.
Plainly the complaint is a general one, namely once there was an objection by the father to giving evidence on reasonable grounds, that required the Federal Magistrate to grant a certificate to cover all of the evidence, including in chief, in cross-examination and by affidavit that the father intended to give in the proceedings.
There would appear to be no issue that the father’s objection was made on reasonable grounds, namely that he would like to give evidence in relation to the allegations made by the mother in her affidavit, but to do so may place him at risk of incrimination. However, at the point that the application for a certificate was made, the mother had filed her affidavit containing the allegations, the father was due to file an affidavit in response, and a s 11F appointment had been listed to take place. Clearly, it was appropriate and necessary for the Federal Magistrate to grant the s 128 certificates that he did, but the question seems to be should his Honour have projected ahead and found that it would be necessary subsequently for the father to give further evidence, both in chief and in cross-examination (and maybe by way of affidavit) that might tend to incriminate him, as opposed to waiting until the time to give that evidence and addressing any further application for a s 128 certificate when it was known what that evidence might be.
There seems to be no direct authority on that point, but we are not persuaded that the Federal Magistrate erred in the approach that he took and in refusing to grant the broad certificate that was asked for, given the state of the proceedings.
In his written summary of argument the father submits that once an objection is made on reasonable grounds then there is “no judicial discretion not to grant a certificate”. That may be so, but that says nothing about the issue of breadth of the certificate in terms of the evidence that it covers, and it certainly does not provide the answer to the question posed above.
We further note that it was submitted on behalf of the father that it would be burdensome for him to have to make further applications for a s 128 certificate as and when the occasion arose. However, we reject that submission, given that it is not until it is necessary for further or other evidence to be given that an assessment can be made as to whether there are reasonable grounds for there to be an objection to giving that evidence.
During the hearing of the appeal the father’s counsel suggested that any concerns about the breadth of the certificate would have been overcome if the Federal Magistrate had granted a s 128 certificate to cover any evidence to be given by the father in relation to the specific allegations made by the mother in her affidavit filed on 26 May 2012 including but not limited to evidence-in-chief, evidence in cross-examination, evidence in re-examination, and evidence by affidavit, and evidence given in relation to any family report or psychological assessment ordered by the Federal Magistrate. We agree that that may have been appropriate in the circumstances, but such an order was not sought from the Federal Magistrate and thus there is still no error demonstrated by his Honour.
Before completing the discussion in relation to this ground, we make two further comments. First, it is apparent from the transcript that his Honour initially queried whether a s 128 certificate could be granted in relation to what the father might tell the family consultant at the s 11F appointment given that that was not strictly “evidence”. We also note that the same issue arises in relation to the “evidence” to be given for the purposes of the family report and the psychological assessment. However, his Honour concluded that he was able to give such a certificate for that “evidence”, and that has not been challenged in this appeal and we say nothing further about this issue.
Secondly, a primary submission made by counsel for the mother is that an appeal does not lie from a s 128 certificate in that it is not a decree within the meaning of s 94AAA(1) of the Act. It is said that it is a decree “under the Evidence Act” and not “under the Family Law Act”. This issue was raised in Ferrall, but the Full Court did not find it necessary to determine it. For our part, we reject this submission. The issue in Ferrall was whether the s 128 certificate should be granted at all, and the concern about an appeal was with the adverse consequences upon the operation of the section of a certificate being granted, the evidence being given under the protection of that certificate, and then subsequently that evidence being found to be admissible against the witness following a successful appeal against the grant of the certificate. That is not the case here, but in any event we consider this appeal is competent. Section 94AAA(1) provides that “[a]n appeal lies to the Family Court from … a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act”. Thus it can be seen that the decree does not need to be a decree made under the Family Law Act, it just needs to be a decree made in the exercise of the original jurisdiction under that Act. That is the case here, and if there is any doubt about that then that doubt is quelled by s 93A(1) of the Act. That subsection provides as follows:
The Family Court has jurisdiction with respect to matters arising under this Act or under any other law made by the Parliament in respect of which:
(a)Appeals referred to in section 94 are instituted; or
(aa)appeals referred to in subsection 94AAA(1) or (1A) are instituted; or
(b)appeals referred to in section 96 are instituted.
(Our emphasis)
The Evidence Act 1995 (Cth) is within the category of “any other law made by the Parliament”.
To return to this ground of appeal, we find that it has no merit.
Ground 5
As we have already identified, this complaint emanates from comments that
his Honour made during the hearing. His Honour said this:
... You see, there is a public interest here. Well, there are two public interests which conflict. One is that I must get enough evidence that I need to determine the dispute between these parties and that I’m seized of. But the other public interest matter is that if your client has committed offences which have got nothing to do with anything, that’s his problem, and you know, perhaps he should be prosecuted for them.
(Transcript 13 July 2012, page 15, lines 31-36)
We agree with the father that there is no “public interest test” to be applied here, but we do not take his Honour’s comments as setting up such a test. Indeed, the comments are put into context by what his Honour says immediately thereafter, namely:
I shouldn’t have to give a certificate unless it’s necessary for the interests of justice in these proceedings for that evidence to be given.
(Transcript 13 July 2012, page 15, lines 40-41)
In other words, his Honour was in effect emphasising that if it was not necessary for the evidence that was sought to be the subject of the s 128 certificate to be given, because for example it was not relevant to the issues in dispute, then there was no basis for a certificate to be granted.
Accordingly, we are not persuaded that his Honour erred in making these comments, and there is no merit in this ground of appeal.
Conclusion
It will be recalled that only Grounds 1 and 5 are directed to the orders made on 13 July 2012, and are the only grounds of appeal that need to be addressed in this appeal. As we have found no merit in either of those grounds of appeal, this appeal must be dismissed.
Appeal number SOA 68 of 2012 against “the orders” made on 6 August 2012
The first issue to address here is the failure by the Federal Magistrate to make an order formally dismissing the father’s application for a s 128 certificate.
It is plain from his Honour’s reasons for judgment and the notation to the actual orders made that his Honour was not prepared to make the order sought by the father, and to repeat, that refusal is the only aspect of the decision of 6 August 2012 that is challenged. Thus, his Honour’s orders need to be amended to include an order dismissing the application for this appeal to proceed. That can be done by this court applying the slip rule and formally amending the orders of the Federal Magistrate.
It is beyond doubt that we have the power to apply the slip rule and make the amendment in these circumstances (Murray v Director, Family Services, ACT (1993) FLC 92-416; Hourd & Hourd [2011] FamCAFC 177). The slip rule is a well settled common law convention which allows for an error arising from an accidental slip or omission to be corrected at any time by a judge by further order.
The leading authorities defining the operation and scope of the slip rule are well known (see L Shaddock & Associates Pty Ltd v Parramatta City Council [No. 2] (1982) 151 CLR 590; DJL v The Central Authority (2000) 201 CLR 226; Russell v Russell (1999) FLC 92-877 and Milham v Stanford (2001) FLC 93-073), and a detailed discussion of the relevant case law was undertaken by the Full Court in Russell at 86,436-86,437.
Importantly the slip rule only applies where the proposed amendment is one upon which no real difference of opinion can exist, and there is no requirement for the exercise of an independent discretion. Plainly this is the case here.
Ground 1
The relevant application before the Federal Magistrate on this occasion was in effect an oral application by the father for a s 128 certificate in relation to the evidence to be given by him in the course of the preparation of a family report and a psychological assessment. Orders for a family report and a psychological assessment were to be made on 6 August 2012, but the father opposed those orders unless the court was prepared to grant him a s 128 certificate.
As referred to already, the Federal Magistrate noted in paragraph 21 of his orders as follows:
… 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.
On 6 August 2012 his Honour delivered a brief ex tempore judgment addressing this issue, and subsequently when he published that judgment on
14 September 2012 he added a preamble and an expansive background. That effectively resulted in a different judgment being published than the ex tempore judgment delivered on the day, but given there is no complaint about that in this appeal, and we have not heard any argument in relation to it, we do not propose to say any more.
On the basis of the written submissions in support of this ground, the complaint here is twofold. First, it is suggested that once a party makes an objection to giving the evidence on reasonable grounds, “there is … no judicial discretion not to grant a certificate”. We have addressed this same submission in the context of the other appeal, and to repeat, it may be so, but that does not say anything about the breadth of the s 128 certificate in terms of the evidence it should cover. Further, and we suggest obviously, “reasonable grounds” still need to be established, and that is the second area of complaint here. It is submitted that his Honour “does not elaborate in his Reasons as to why he finds there were no reasonable grounds for objection”. However, no ground of appeal suggests lack of reasons, and thus to succeed here there needs to be more demonstrated than that. In that regard, in his written outline of argument, the father has set out what he says does establish the necessary reasonable grounds. In summary, those matters are as follows:
a)The mother made particular allegations that the father raped her.
b)The father had been interviewed by the police and there was the distinct possibility of him being charged with rape, clearly an offence within the scope of s 128(1)(a) of the Evidence Act.
c)The test for what constitutes reasonable grounds for an objection to give evidence is a broad one and the court ought to have given the father “significant latitude” in determining whether he had reasonable grounds for making the objection.
d)Even if the test was a narrow one, as suggested by Lindenmayer J in Atkinson and Atkinson (1997) FLC 92-728, at 83,816, namely, that there must be a bona fide apprehension of prosecution for some particular offence on reasonable grounds, that was plainly the case here.
e)Giving evidence in relation to the allegations of the mother may place the father at risk of incrimination because he may be partially admitting to the allegation of rape.
We are persuaded that these matters satisfy here the need for an objection to giving evidence to be on reasonable grounds, and there is merit in this ground of appeal. We are comforted in that conclusion by what Baker J said in Atkinson (at 83,836), namely:
… significant latitude must be given to the claimant of the privilege who is, after all, in a better position than the Court to know where the line of inquiry might lead … Furthermore the court must determine a claimant’s entitlement to the privilege as soon as the protection is claimed. It should do so without requiring the witness fully to explain how the effect would be produced, as the disclosure of matters required to substantiate the claim may have the consequence of causing the very mischief that the privilege seeks to prevent.
(References omitted)
Grounds 3(a) and 3(b)
His Honour said this in his brief ex tempore reasons (at paragraph 24.3):
… 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.
We accept the submission of the father that “these comments demonstrate both a misunderstanding and a misapplication of the relevant law”. There is nothing in the section which requires there to be any admissions first, and indeed, it would be illogical if that were to be the case; the purpose of the section is to protect a witness from having admissions that he makes in one proceeding being used against him in another proceeding.
We are also reminded of Baker J’s words in Atkinson (at 83,836), namely:
It must be remembered that the claimant does not have to prove on reasonable grounds that he or she has committed an offence or is liable to a civil penalty. The claimant’s onus is discharged when it has been proven that there are reasonable grounds to find that the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty.
Perhaps the only way that his Honour’s comments can be understood is if what his Honour was referring to was the requirement to demonstrate that the evidence may tend to prove the witness committed an offence; i.e., a way to do that would be to make admissions in that evidence. However, here there can be no doubt that the evidence sought to be covered by the s 128 certificate tended to prove that the father had committed an offence. His evidence in his discrete affidavit and the evidence that he would need to provide to the family consultant and/or the psychologist comprises at the very least a “partial admission of the crime of rape”; it establishes the actus reus of that crime.
We consider that this even satisfies the stricter alternative test outlined by Lindenmayer J in Atkinson, namely, there must be a bona fide apprehension of prosecution for some particular offence on reasonable grounds.
Accordingly, we find merit in these grounds of appeal.
Grounds 4(a) and 4(b)
After suggesting that there were no relevant admissions made by the father,
his Honour said this in his brief reasons for judgment [at 24.3]:
… 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.
Once again, we agree with the submission of the father that his Honour thereby demonstrated “both a misunderstanding and a misapplication of the relevant law.”
His Honour’s comments are not requirements of the section, and they could only be understood in the context of the need for the evidence to tend to prove that the father committed an offence. However, even in that context, the father has satisfied the test. The father put it this way in his written summary of argument:
viii.If the appellant were to participate in the Family Report or psychological assessment process and was asked questions in respect of the Wife’s allegations (that is, if he were asked for his version of events by the Family Consultant or assessing psychologist, which is quite likely), and if he were to answer those questions as he did in his separate affidavit of 26 July 2012, that is, to admit to having had sexual intercourse with the Wife, without the protection of a Certificate, not only would there be a ‘real risk’ of his incriminating himself, he would, in fact, be incriminating himself.
(Emphasis in original)
Thus, there is also merit in these grounds of appeal.
Conclusion
Having found merit in Grounds 1, 3(a), 3(b), 4(a) and 4(b) this appeal must succeed, and subject to whether we re-determine the matter, the order dismissing the application for a s 128 certificate should be set aside as well as the notation in paragraph 21 of the orders.
The question then becomes whether we re-determine the matter or remit the matter for rehearing. The father seeks that we do the former, but the mother’s counsel does not address this issue.
We are satisfied that we can and should re-determine the matter, and we now turn to that.
The application is for the father to have a s 128 certificate covering the evidence that he may give to the family consultant and to the psychologist for the purposes of the preparation of their reports pursuant to orders of the court.
The genesis of the application is the serious allegations that the mother makes against the father in her affidavit, filed on 26 May 2012, including that he raped her.
In order to progress this matter to a final hearing, the court has ordered that a family report be prepared and the father be psychologically assessed. The father though objects to giving evidence to the family consultant and to the psychologist because that would inevitably need to address the serious allegations made by the mother against him, and any such evidence may tend to prove that he has committed an offence. Thus, it is claimed there are reasonable grounds for the father’s objection and a s 128 certificate should be granted.
We agree with this submission and a s 128 certificate covering the evidence to be given by the father to the family consultant and to the psychologist should be granted.
Costs
At the conclusion of the hearing we received submissions from the parties as to the question of costs depending on the result of the appeal.
In the event the appeals were successful, counsel for the father sought that each party bear their own costs in accordance with s 117 of the Act, but that the father have a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). Counsel for the mother also sought a costs certificate in that event.
As the mother was legally aided, counsel for the mother sought an order for costs if the appeals were dismissed. The father’s counsel opposed such an order on the basis of the financial circumstances of the parties.
The appeal against the orders of 6 August 2012 has been successful on a question of law, and in the circumstances we agree that there should be no order for costs. It is appropriate that the father should have a costs certificate, but we do not consider that the mother should have such a certificate. We find that there was no basis for the mother to take any part in these appeals. Legal aid was obtained late and the written summary of argument was brief to say the least, but significantly there was no need for any input from the mother. Her counsel said that the mother was “interested” in the outcome of the appeals, but that is plainly not enough. The outcome has no impact on her, and it might well be said she should have been supporting the appeals instead of opposing them to ensure that the parenting proceedings could proceed without delay.
This circumstance also renders it inappropriate for the mother to have an order for costs on the dismissal of the appeal against the orders of 13 July 2012.
I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & MacMillan JJ) delivered on 10 December 2013.
Associate:
Date: 10 December 2013
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