Jarvis & Pike

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.