Jarvis & Pike - [2013] FamCAFC 196

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JARVIS & PIKE [2013] FamCAFC 196
Case: [2013] FamCAFC 196
Decision Date: 10 December 2013

CaseChat Overview and Summary

In the case of Jarvis & Pike, the father appealed against two orders made by the Federal Magistrate. The first appeal concerned the magistrate's decision to grant the father a certificate under section 128 of the Evidence Act 1995 (Cth) in relation to parts of the affidavit evidence and the evidence he may give at an appointment with a family consultant. The father argued that the magistrate should have granted a broader certificate covering all evidence he would provide. The second appeal focused on the magistrate's requirement that the father undergo a psychological assessment for the preparation of a family report. The father had sought a section 128 certificate in relation to this evidence but was refused. The magistrate noted that there were no reasonable grounds for the father's objection to giving that evidence, but did not formally dismiss the father's application, which the Full Court later did using the slip rule.

The court examined the legal issues of whether the magistrate erred in the scope of the certificate granted and whether the magistrate correctly assessed the father's reasonable grounds for objecting to giving evidence. Regarding the scope of the certificate, the Full Court found no error in the magistrate's decision not to grant a broader certificate. The court held that the magistrate appropriately exercised discretion in determining the scope of the certificate. However, concerning the assessment of reasonable grounds, the Full Court found that the magistrate had erred. The court concluded that the test for reasonable grounds was broad and should have allowed the father significant latitude. The magistrate's consideration of the father's lack of admissions and the need for "far more evidence" was inappropriate. This ground of appeal had merit.

The Full Court dismissed the first appeal but allowed the second appeal. The court set aside the magistrate's orders and issued new orders granting the father a certificate under section 128 of the Evidence Act 1995 (Cth). The certificate would cover the evidence given by the father to the family consultant and the psychologist, relating to specific paragraphs of the mother's affidavit and the father's response. The Full Court also granted the father a costs certificate for the second appeal but dismissed the mother's application for a costs certificate. The orders concluded that there would be no order as to costs in the first appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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