LAMOND and SOUTHGATE
[2013] FCWA 77
•26 JULY 2013
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: LAMOND and SOUTHGATE [2013] FCWA 77
CORAM: WALTERS J
HEARD: 2 JULY 2013
DELIVERED : 26 JULY 2013
FILE NO/S: PTW 5336 of 2011
BETWEEN: WESLEY LAMOND
Applicant
AND
THERESE SOUTHGATE
Respondent
Catchwords:
FAMILY LAW – practice and procedure – subpoena to Western Australia Police requiring production of an audiovisual recording of an interview of a suspect in criminal proceedings – where subpoena issued in the context of child-related proceedings being conducted in the Family Court of Western Australia under the Family Court Act 1997 (WA) – Criminal Investigation Act 2006 (WA), s 120 and s 122 – whether the Family Court of Western Australia has power to give directions regarding the playing of the audiovisual recording in the proceedings before it – statutory construction – meaning of the expression "played under a direction of a court" in s 120(3)(d) of the Criminal Investigation Act 2006 (WA) – whether the expression "a court" in s 120(3)(d) of the Criminal Investigation Act 2006 (WA) means one of the courts referred to in s 122 of the Criminal Investigation Act 2006 (WA) – whether the Family Court of Western Australia must direct the parties to a family law magistrate or otherwise to the Supreme Court, District Court, Magistrates Court or Children's Court to consider whether to give directions relating to the playing of the audiovisual recording in child-related proceedings in the Family Court of Western Australia, and what those directions should be – discussion of the powers of the Family Court of Western Australia under the Family Court Act 1997 (WA), and the incidental and necessary powers of the Family Court of Western Australia to control its own process and proceedings – manner in which the Family Court of Western Australia should approach the giving of directions for the playing of the audiovisual recording in or for the purposes of proceedings before it – exercise of discretion
Legislation:
Child Support (Registration & Collection) Act 1988 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Criminal Investigation Act 2006 (WA), Part 11: s 115 - s 124, s 120, s 121 , 122, s 123, s 124, s 151
Criminal Code Compilation Act 1913 (WA), (s 570F now repealed)
Coroner's Act 1996 (WA), s 3, s 5, s 6, s 8, s 11
Family Court Act 1975 (WA)
Family Court Act 1997 (WA), s 5, s 9, s 25, s 26, s 35, s 36, s 37(2), Part 3-Div 2, s 38, s 39, Part 3-Div 4, s 44, Part 5, s 66A, s 66C, s 84, s 202A, s 202B, s 212, s 213
Family Law Act 1975 (Cth)
Interpretation Act 1984 (WA), s 5
Magistrates Court Act 2004 (WA), Sch 1, s 3, s 4, s 7, s 25
Marriage Act 1961 (Cth)
Police Act 1892 (WA), s 8, s 33L, s 33N
Public Sector Management Act 1994 (WA), Part 3
Category: Reportable
Representation:
Counsel:
Applicant: Ms R Syed
Respondent: Mr S Walker
Independent Children's Lawyer : Ms M Stokes
Commissioner of Police : Mr J Bennett
Solicitors:
Applicant: R S Family Law
Respondent: Legal Aid WA
Independent Children's Lawyer : Chris Stokes & Associates
Commissioner of Police : State Solicitor's Office
Case(s) referred to in judgment(s):
Central Authority v Wageman [2012] 48 Fam LR 254
DJL v The Central Authority [2000] 201 CLR 226
Ex parte West Australian Newspapers Ltd [2008] WASCA 209
Jago v the District Court (NSW) [1989] 168 CLR 23
Re Corruption and Crime Commission; Ex parte West Australian Newspapers Ltd [2007] WASC 201
Re P’s Bill of Costs (1982) 45 ALR 513
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1The questions for determination are whether the Family Court of Western Australia has power to give directions regarding the playing – in proceedings before it – of an audiovisual recording of an interview with a suspect by a police officer, and, if so, whether the making of such directions by the Family Court is prohibited by law. The suspect is a party to the proceedings, which comprise a dispute between the suspect and his former de facto partner regarding parenting arrangements for their two children. An independent children's lawyer ("ICL") has been appointed to represent the interests of the children. The suspect, his former de facto partner and the ICL all consent to the playing of the audiovisual recording of the interview. It is not in dispute that the evidence contained in the audiovisual recording is relevant and admissible. The only person who opposes this Court giving directions regarding the playing of the audiovisual recording is the Commissioner of Police, who submits that "... if the Family Court of Western Australia were to give such a direction it would be acting in excess of jurisdiction and open up those involved to potential criminal liability ..."
2The Commissioner contends that the parties must seek directions from one of four other courts as to the playing of the audiovisual recording in the proceedings being conducted in this Court. The four other courts are the Supreme Court, District Court, Magistrates Court and Children's Court. The Commissioner contends that those courts, and only those courts, are empowered to give directions as to the playing of the audiovisual recording.
3If the Commissioner's contentions are correct, then the practical effect of the legislation upon which he relies is that a judge of the Family Court of Western Australia must direct the parties to a magistrate (in this case, a family law magistrate) to consider whether to give directions relating to the playing of the audiovisual recording, and what those directions should be. Alternatively, the judge must direct the parties to seek the relevant directions from one of the other courts referred to in the preceding paragraph. It is not an exaggeration to suggest that such a scenario is absurd (even if the Commissioner asserts otherwise). If possible, therefore, a construction of the legislative provisions which are said to lead to such results is to be avoided.
Short summary of Family Court proceedings
4[Wesley Lamond] and [Therese Southgate] ("the father" and "the mother") commenced cohabitation in November 1996. They separated in mid September 2011. They have two children: a daughter born [in] 2004 and a son born [in] 2007.
5The mother and the father never married.
6The separation was difficult and acrimonious. Among other things, the mother asserts that the father subjected her to multiple assaults during the course of their relationship, including assaults in the presence of the children. The mother also asserts that there was an escalation in the father's conduct towards her after they separated, which caused the mother to fear for her, and the children's, safety and well‑being. In broad terms, the father denies the mother's allegations.
7The mother does not allege that the father has been violent to the children. She does allege, however, that the children have been repeatedly exposed to family violence both during and after the relationship and that the father has a limited ability to control his temper in their presence
8In late September 2011, and very shortly after the parties separated, each party applied for and obtained an interim Violence Restraining Order ("VRO") against the other.
9A few days later, the father commenced proceedings in the Family Court of Western Australia ("the Family Court"). The mother filed a response to the father's application on 12 October 2011. It is unnecessary to trace the procedural history of the parties' competing applications, save to record that the proceedings raise serious parenting issues – such as whether the parties should have equal shared parental responsibility for the children and the time (if any) that the children should spend with the father.
10On 13 October 2011, an ICL was appointed to represent the interests of the children.
11Until early 2012, the children lived with the mother (primarily) and spent time with and communicated with the father on a supervised basis. On 30 March 2012, orders were made suspending all previous orders providing for the father to spend time with and communicate with the children. Thereafter, the children have had no, or virtually no, contact with him.
12On 24 October 2012, consent orders were made appointing Professor George Lipton, Consultant Psychiatrist, as a single expert to inquire into and report on a number of matters relating to the best interests of the children.
13The mother's case is that the benefit of the children having a meaningful relationship with the father is outweighed by the need to protect them from the risk of physical or psychological harm from the father, and from the risk of being exposed to family violence. The mother argues that these risks are unacceptable.
14In addition, the mother's case is that she should have sole parental responsibility for the children. She argues that equal shared parental responsibility would be impracticable (due to the parties' inability to communicate with each other) and not in the children's best interests.
15The father's case is that the children should spend equal time (or, alternatively, substantial and significant time) with him. He argues that it is not in their best interests to have no contact with him. He denies that the children are at risk of abuse, or of exposure to family violence, when with him, and that he has the capacity to provide adequately for their physical and social needs.
16In addition, the father's case is that the parties should have equal shared parental responsibility for the children. He argues that such an arrangement would be in the best interests of the children, and he does not accept that it would be impracticable.
17I shall refer to these proceedings as "the substantive proceedings".
18The trial of the substantive proceedings was listed to commence on 1 July 2013. By then, the children had had no (or almost no) contact with the father since March 2012.
Child-related proceedings
19The substantive proceedings comprise child-related proceedings under the Family Court Act 1997 (WA) ("FCA"). In other words, they are proceedings under Part 5 of the FCA (see FCA s 202A).
20Part 5 of the FCA is headed Children and deals with, among other things, parenting plans and parenting orders. The expression "parenting order" includes an order dealing with one or more of the following (see FCA s 84) –
a)the allocation of parental responsibility for a child;
b)the person or persons with whom a child is to live;
c)the time a child is to spend with another person or other persons;
d)the communication a child is to have with another person or other persons; and
e)any aspect of the care, welfare or development of, and any other aspect of parental responsibility for, a child.
21In deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration (FCA s 66A). The manner in which a court determines what is in a child's best interests is dealt with in s 66C of the FCA. In broad terms, it is obliged to consider approximately 15 matters. These matters are divided into what are described as "primary considerations" and "additional considerations". The primary considerations comprise (see FCA s 66C(2)) –
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
22The expression "family violence" is defined in s 5(1) of the FCA to mean:
conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
23The additional considerations are set out in s 66C(3) of the FCA. They include:
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the capacity of each of the parents, and of any other relevant person, to provide for the child’s needs (including his or her emotional and intellectual needs);
e)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
f)any relevant family violence, or
g)any family violence order; and
h)any other fact or circumstance that the court considers relevant.
24Section 66C(4) of the FCA elaborates upon two of the factors referred to above – namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. In effect, it requires the court to focus upon each party's "track record" as a parent.
25The objects of Part 5 of the FCA, and the principles underlying it, are set out in s 66. They are important, but it is unnecessary to reproduce them in these Reasons.
Jurisdiction of the Family Court (as relevant to the substantive proceedings)
26As the substantive proceedings relate to parenting orders in respect of children whose parents were not married to each other at any relevant time, they fall within the non-federal jurisdiction of the Family Court (see FCA s 36).
27Subject to certain exceptions, the non-federal jurisdiction conferred by the FCA on the Family Court is exclusive. Section 36(8) of the FCA provides:
Non-federal jurisdiction conferred on the [Family Court] is exclusive of any other court except as provided under section 39 or where an appeal lies to the Supreme Court.
28Section 39 of the FCA is as follows:
Non‑federal jurisdictions of courts of summary jurisdiction
Subject to Division 4 —
(a)the Magistrates Court, constituted by a magistrate, sitting at a place outside the metropolitan region; and
(b)the Magistrates Court, constituted by a family law magistrate, sitting at any place in the State,
may exercise all the non‑federal jurisdictions of [the Family Court] except the functions of the Court under the Adoption Act 1994 or the Surrogacy Act 2008 and, in exercising such jurisdiction, the court must have regard to the principles and matters set out in section 37, where applicable.
29Division 4 (of Part 3 of the FCA) deals with the transfer of proceedings – in certain circumstances – from the Magistrates Court (constituted by a magistrate sitting at a place outside the metropolitan region of Perth, or constituted by a family law magistrate) to the Family Court. It also deals with the stay or dismissal of proceedings and change of venue.
30Division 4 also contains s 44, which provides as follows:
Transfer of proceedings to another court
(1)... [If] in the exercise of its jurisdiction it appears to the [Family Court] or to the Magistrates Court that it is in the interests of justice, or of convenience to the parties, that the proceedings before it be dealt with in another court, the [Family Court] or the Magistrates Court, as the case may be, may, on its own motion or otherwise, transfer the proceedings to the other court.
(2)A transfer under subsection (1) may be made on the application of any party to the proceedings.
31Clearly, any court to which proceedings are to be transferred pursuant to s 44 of the FCA must have jurisdiction to deal with those proceedings. Typically, s 44 is relied upon when proceedings are transferred from the Family Court to the Magistrates Court (constituted by a family law magistrate) or vice versa. Such transfers occur on a daily basis. Section 44 is also relied upon when proceedings are transferred from the Family Court or the Magistrates Court (constituted by a family law magistrate) to the Family Court of Australia or the Federal Circuit Court of Australia (formerly the Federal Magistrates Court).
32I have discussed the relationship between family law magistrates and the Magistrates Court elsewhere in these Reasons.
33Pursuant to ss 37 and 39 of the FCA, the Courts exercising non-federal jurisdiction under the FCA must have regard to certain principles as being applicable to the proceedings before them. Among other principles are the following:
a)the need to protect the rights of children and to promote their welfare; and
b)the need to ensure safety from family violence.
34It follows from the above that, because the substantive proceedings are child‑related proceedings under Part 5 of the FCA, the only courts which have jurisdiction to deal with them are the Family Court and the Magistrates Court (as constituted by a family law magistrate). Relevantly –
a)the District Court and the Children's Court do not have jurisdiction to deal with the substantive proceedings;
b)the Magistrates Court does not have jurisdiction to deal with the substantive proceedings (which are being conducted in Perth), unless the Magistrates Court is constituted by a family law magistrate; and
c)the Supreme Court does not have jurisdiction to deal with the substantive proceedings at first instance (but it has jurisdiction to deal with appeals from the Family Court and from the Magistrates Court constituted by a family law magistrate).
Audiovisual recording of interview
35On 20 January 2012, the father participated in an interview with a police officer. An audiovisual recording was made of the interview. Although different abbreviations seem to have been used at different times and for different purposes, I shall refer to the recording as a VRI.
36The VRI related to an alleged stalking offence and three alleged breaches of the VRO obtained by the mother. It is asserted that the father made certain admissions during the interview the subject of the VRI.
37One of the matters about which the father was interviewed comprised an incident which allegedly occurred on 14 January 2012. According to the mother, the father drove his vehicle directly towards her vehicle in such a manner as to cause her to fear that she would be involved in a head-on collision. The mother described the incident as follows (see paragraph 246 of the mother's affidavit sworn 14 March 2013):
... I noticed a car coming from the opposite direction pull on to my side of the road so that it was approaching me head on. I froze. I thought I was going to die. When the car got close I saw it was [the father] in his car and he swerved back onto his side of the road going on to the gravel. [The father] over-corrected and then crossed over the road onto the gravel on my side of the road.
38The father denies that he drove in the manner alleged.
39The father described the manner in which the charges against him were dealt with as follows (see paragraph 123 of the father's affidavit sworn 12 March 2013):
I attended the [Country Town A] Magistrates Court on 2 May 2012 in relation to the charges against me. The result of the hearing is as follows:
•two breaches of the VRO were withdrawn and dismissed;
•the third breach of the VRO was upheld but there was no punishment; and
•I pleaded guilty to the charge [of] stalking and was fined $1000.
40It would appear that, on the same day, the father was also convicted of reckless driving, failure to stop and driving an unlicensed vehicle. His driver's licence was cancelled.
Subpoena
41On 12 June 2013, the mother filed a subpoena in the Family Court requiring the Commissioner to produce the VRI on 1 July 2013 (being the first day of the trial). The subpoena was duly issued by the Court. It was served on the Commissioner on 20 June 2013.
42On the same day (20 June 2013), the Coordinator Summons and Subpoena in the Legal and Legislative Services section of Western Australia Police wrote to the Registrar of this Court as follows:
The Commissioner advises the supplying of the VRI of [the father] conducted on 20 January 2012 as requested in the schedule to the subpoena is an offence under s 120(2) Criminal Investigation Act.
By mutual consent with [the mother's solicitors], the Commissioner will await suitable orders by the court before complying with the request.
43I shall refer to the Criminal Investigation Act 2006 (WA) as the "CIA".
44On 28 June 2013, the mother filed an application in a case seeking the following orders:
The following directions be made pursuant to s 122 of the Criminal Investigation Act 2006 in relation to the [VRI]:
•Western Australia Police be authorised to supply a copy of the [VRI] to the Registrar of [the Family Court] for use as [the Family Court] orders in conducting [the substantive proceedings].
•The parties' representatives, ICL and single expert witness be authorised to possess, play and view the [VRI] conditional upon this occurring within the precincts of the Family Court.
45As will become apparent, the reference to s 122 of the CIA in the orders sought was inaccurate and, ultimately, unhelpful.
46The application in a case was accompanied by a letter drawing the Court's attention to the provisions of sections 120 and 122 of the CIA and requesting that the application be dealt with by a family law magistrate (as opposed to a judge of the Family Court), either in open court or in chambers.
Hearing on 1 and 2 July 2013
47Notwithstanding the request contained in the letter accompanying the application in a case filed 28 June 2013, I (as the trial judge) directed that the application be listed on the first day of trial – being 1 July 2013.
48The father, the mother and the ICL were all represented on 1 July 2013. Mr Bennett, instructed by the State Solicitor for Western Australia, appeared for the Commissioner of Police.
49The legal representatives for the father, the mother and the ICL all confirmed that their clients consented to the orders sought in the application in a case filed 28 June 2013. It was not in dispute that the VRI contains relevant and admissible evidence.
50After hearing brief submissions from Mr Bennett and Mr Walker (for the mother), I adjourned the application in a case for further hearing on 2 July 2013. Mr Bennett had indicated that he would like the opportunity to present written submissions on behalf of the Commissioner.
51During the afternoon of 1 July 2013, and after the application in a case had been stood over to the following day, the legal representatives for the parties advised me that the substantive proceedings had resolved on an interim basis. I was then asked to pronounce orders, by consent, in the terms of a Minute signed by the parties (including the ICL).
52The orders made provide for the children to live with the mother, and for her to have sole parental responsibility for them. The orders also require certain steps to be taken (which steps are not presently relevant) prior to the Family Court making final orders in relation to the time that the father is to spend with the children, and his communication with them. In other words, issues relating to contact between the father and the children were adjourned. They are due to be revisited on 23 December 2013.
53The mother's application in a case filed 28 June 2013 (relating to the production and playing of the VRI) came on for further hearing on 2 July 2013. The Commissioner's written submissions ("the written submissions") had been received overnight, and were relied upon by Mr Bennett at the hearing on 2 July. After hearing further submissions from Mr Bennett and Mr Walker (the legal representatives for the father and the ICL having elected not to make formal submissions), I reserved my decision.
The Commissioner does not object to the production of the VRI
54Mr Bennett did not seek to justify or support the suggestion contained in the letter from the Coordinator Summons and Subpoena in the Legal and Legislative Services section of Western Australia Police to the Registrar of this Court to the effect that the supplying of the VRI to the Family Court, as requested in the schedule to the subpoena, is an offence under s 120(2) of the CIA. Instead, he confirmed that the Commissioner does not object to the production of the VRI pursuant to the subpoena.
55Mr Bennett submits, however, that the Family Court "does not have jurisdiction to make directions as to the playing of the [VRI]" (see paragraph 3 of the written submissions).
56The Commissioner does not suggest that the VRI comprises anything other than relevant and admissible evidence in the substantive proceedings. Nor does the Commissioner oppose the playing of the VRI in the proceedings – provided that relevant directions as to the playing have been given by a court empowered to do so. The only relevant issue from the Commissioner's perspective, and hence the central issue for determination, is "whether the Family Court of Western Australia is 'a court' capable of making a direction as to the playing of a [VRI] in accordance with s 120(3)(d) of the [CIA]" (see paragraph 5 of the written submissions). This, the Commissioner argues, is a question of statutory construction.
57It should be noted at the outset that, strictly speaking, the directions sought by the parties and the ICL in relation to the playing of the VRI are not sought "pursuant to" or "in accordance with" s 120(3)(d) of the CIA. Irrespective of the preamble to the orders sought by the parties and the ICL (which refers to s 122 of the CIA), the directions are sought - in effect - in the context of the Family Court's powers to direct, control and manage the conduct of the substantive proceedings. The real question is whether the provisions of Part 11 of the CIA prohibit the Family Court from making the directions. Put another way, and on the assumption that the Family Court has power to make the directions sought, the question is whether the making of such directions is authorised, justified or excused (for want of a better description) by s 120(3)(d) of the CIA.
Statutory construction
58In Ex parte West Australian Newspapers Ltd [2008] WASCA 209 ("Ex parte WAN") the Chief Justice (with whom Newnes AJA agreed) said (at paragraph 51, references omitted):
... All [principles of statutory construction] acknowledge that the starting point for any process of construction is the language of the relevant provision, viewed in the context of the statute as a whole, having regard to the general purpose and the policy of the legislation ... [It] is salient to emphasise that the process is one of construction of the language used by the Parliament, not one of reconstruction by reference to language which the court thinks the Parliament might or should have used ... Nor is the process of statutory construction an occasion for the imposition of judicially divined policy ... Rather, it is the task of the court to ascertain and give effect to the policy of the Parliament evident in the language which it has used, or which can be gleaned from admissible aids to construction such as those taken into account pursuant to s 19 of the Interpretation Act 1984 (WA) ...
59The Chief Justice added (at paragraph 52):
It is of the utmost importance to remember that the focus is, must always be, upon the words used in the statute.
60The written submissions contain the following summary of the principles of statutory construction – which summary, together with the passage from Ex parte WAN quoted in the previous two paragraphs, I accept as being an accurate distillation of the relevant principles (all references omitted):
•The primary object of statutory construction is to construe relevant provisions so that they are consistent with the language and purpose of all the provisions of the statute. The meaning of a provision must be determined by reference to the language of the instrument viewed as a hole.
•The language which has actually been employed in the text of legislation is the surest guide to legislative intention. However, the meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
•The court may have regard to materials which demonstrate what mischief, if any, a statute is intended to cure. ...
•However, in the construction of legislation it is erroneous to look at extrinsic materials before exhausting the ordinary rules of statutory construction.
•A construction of legislative provisions which leads to absurd results is to be avoided, if at all possible.
•Where competing statutory constructions are available, the court should prefer a construction which results in every part of the legislation having work to do.
•It is a well established principle of statutory construction that words will not be implied into a legislative provision unless there is a clear necessity to do so in order to give effect to its underlying purpose or object.
The legislation
61Part 11 of the CIA is headed Interviewing suspects. It contains sections 115 to 124 of the CIA.
62In Ex parte WAN, the Chief Justice (with whom Newnes AJA agreed) said that the general purpose of Part 11 of the CIA is "clear enough":
54.... It is to enhance the quality of confessional evidence given in criminal proceedings. It follows the general form of (now repealed) Chapter LXA of the (Criminal) Code, which was enacted at a time at which criminal trials were commonly bedevilled with arguments as to the veracity and admissibility of evidence of oral and written confessions given by police officers. The advent of modern technology, in the form of video recording, has facilitated the production of the best evidence of any confession. It has significantly reduced the evidentiary disputes with respect to the admissibility of such confessions and incidentally increased the number of early pleas of guilty. So, a legislative purpose of encouraging audiovisual recording of police interviews of suspects is abundantly clear from the terms of Part 11 and in particular from s 118, which limits the admissibility of confessional evidence which has not been audio visually recorded. That purpose is, no doubt, a matter properly taken into account by a court when exercising the discretion conferred by s 122 of the [CIA].
55.Cast in even more general terms, it is clear that the purpose of the [CIA], including Part 11, is to enhance the administration of criminal justice and in particular that aspect of the administration of justice that relates to criminal investigation. ...
63The Chief Justice commented that the provisions of Part 11 of the CIA restricting the possession and use of audiovisual recordings "merit particular attention". The relevant provisions are as follows:
120.Recordings of interviews, possession etc. restricted
(1)In this section —
authorised person means any of the following, acting in the course of duty —
(a)a police officer;
(b)a person authorised for the purposes of this Part by the Commissioner of Police;
(c)the DPP or a person acting under the authority of the DPP;
(d)a legal practitioner acting for or representing the State;
(e)a CCC officer;
(f)the Parliamentary Inspector;
(g)an ombudsman officer;
(h)a court or a person acting at the direction of a court;
(i)a coroner or a person acting at the direction of a coroner;
(j)a person prescribed to be an authorised person.
(2)A person who is in possession of an audiovisual recording of an interview commits an offence unless the person —
(a)is an authorised person;
(b)is the suspect or the suspect’s legal practitioner;
(c)has possession of the recording in a sealed package as part of his or her duties as a person engaged by a person referred to in paragraph (a) or (b) to transport it; or
(d)was served with the recording under the Criminal Procedure Act 2004 section 35, 42, 61 or 95.
(3)A person who plays an audiovisual recording of an interview to another person commits an offence except when —
(a)the recording is played for purposes connected with the prosecution or defence of, or legal proceedings relating to, a charge to which the interview relates;
(b)the recording is played for purposes connected with proceedings before a coroner;
(c)the recording is played for purposes connected with proceedings under the Police Act 1892 to remove a member, as that term is defined in section 33K of that Act;
(d)the recording is played under a direction of a court; or
(e)the recording is played under section 124.
(4)Subsection (3) does not apply to any of the following when acting in the course of duty —
(a)a police officer;
(b)a CCC officer;
(c)the Parliamentary Inspector;
(d)an ombudsman officer.
(5)A person who supplies, or offers to supply, an audiovisual recording of an interview to another who is not —
(a)an authorised person;
(b)the suspect or the suspect’s legal practitioner;
(c)a person engaged by a person referred to in paragraph (a) or (b) to transport it; or
(d)a person who is required to be served with it under the Criminal Procedure Act 2004 section 35, 42, 61 or 95,
commits an offence unless the person is acting under a direction given under section 122.
(6)A person, other than an authorised person, who copies any part of an audiovisual recording of an interview, or who permits another person to make a copy of any part of such a recording, commits an offence unless the person is acting under a direction given under section 122.
(7)An authorised person who erases an audiovisual recording of an interview commits an offence, except when the person is acting under —
(a)a direction given under section 122; or
(b)an authorisation given under section 123(3).
(8)A person who commits an offence under this section is liable to a fine of $5,000.
121.Recorded interview, broadcast prohibited
A person must not broadcast an audiovisual recording of an interview or any part of such a recording unless the broadcast is made under a direction of a court given under section 122.
Penalty:
(a)for an individual, a fine of $12 000 and imprisonment for 12 months;
(b)for a body corporate, a fine of $100 000.
122.Recordings, court may give directions as to supply etc.
The Supreme Court, District Court, Magistrates Court or Children’s Court may give directions (with or without conditions) as to the supply, copying, editing, erasure, playing, or broadcast of an audiovisual recording of an interview.
64Section 123 deals with the retention of VRIs by the police or the Corruption and Crime Commission. Section 124 provides that VRIs may be played to certain prescribed persons for the purposes of instruction if the suspect has been convicted of the charge to which the interview relates, all relevant legal proceedings have been concluded and all reasonable measures are taken to prevent the identification of the subject from the VRI when it is played. Those sections are not relevant for present purposes.
65In Ex Parte WAN, the Chief Justice noted that "the provisions of Part 11 constraining the possession, supply and use of [VRIs] are unusual when compared to analogous legislation in other comparable jurisdictions". His Honour also noted:
59.... The constraints imposed upon the possession, supply and use of evidentiary material of this kind are much greater than the constraints (if any) imposed in relation to other evidentiary material gathered in the course of a criminal investigation. ...
66His Honour continued:
60.The lack of legislative constraint upon other evidentiary material gathered in the course of the exercise of powers conferred by the [CIA] enables two conclusions to be drawn on the subject of the legislative purpose underlying the imposition of the constraints relating to [VRIs]. The first is that the constraints in Part 11 would not appear to have been imposed as a result of considerations of privacy, given the lack of equivalent constraint in relation to the exercise of powers which infringe personal privacy in a most dramatic way – such as intimate forensic procedures, body searches or strip searches.
61.The second conclusion ... is that the constraints imposed in respect of Part 11 are unlikely to have been thought necessary by reason of possible prejudice to the investigative, pre-trial or trial processes by public dissemination of the evidence. This is because other evidentiary material gathered in the exercise of the powers conferred by the [CIA] could, if publicly disseminated during the course of the investigation or prior to trial, have an equally prejudicial effect upon the investigative and trial processes, yet no constraint is imposed by the legislation with respect to evidentiary material of that kind. Rather, the legislature has been content to leave those matters to the investigative authorities themselves, and, once proceedings have been commenced, to the inherent powers of the court to control access to evidence and pre-trial publication, and the general principles relating to contempt of court.
67After asking himself what distinguishes VRIs conducted under Part 11 of the CIA (on the one hand) from other evidentiary material gathered in the exercise of the powers conferred by the CIA, in respect of which there are no equivalent constraints (on the other), the Chief Justice concluded:
62.... In my opinion the fundamental distinction ... is that the former requires the consent and cooperation of the suspect [and the latter does not]. ... [It] is I think reasonable to infer that the legislature may, at least in part, have been motivated by concern that if it were to become commonplace for [VRIs] to be supplied to the media against the wishes of the interviewee, this could discourage voluntary participation in video records of interview, to the detriment of the administration of justice.
63.Considerations of that kind readily justify a regime of the kind created by Part 11, which limits possession, use and supply of video records of interview to persons and purposes associated with the investigative and trial processes, unless a court expands the persons who may obtain the material, and the uses to which it can be put, by making a direction under s 122.
68The "essential question" with which the Court of Appeal in Ex parte WAN was concerned was (at paragraph 50):
... whether, in the context of Part 11, s 122 [of the CIA] gives the Supreme Court a general discretion to make directions with respect to the supply, copying, playing, broadcast etc of a [VRI], to be exercised having regard to all relevant facts and circumstances, or whether that discretion is constrained so that it can only be exercised in favour of the grant of access if such a grant will positively advance the interests of justice or there are otherwise exceptional circumstances.
69The Chief Justice answered this question as follows (see paragraph 69):
In my view the discretion conferred by s 122 ... is to be approached without constraints artificially imposed by the imposition of restrictions upon the exercise of discretion which are not found in the express terms of the statute. Rather, the discretion is to be exercised taking into account all relevant facts and circumstances, including the subject matter, scope and evident legislative purpose of the statute. ... [Prominent] among the considerations to be taken into account will be the likely effect of the directions sought upon the administration of Justice. If, on balance, it is properly concluded that the direction sought would impact adversely upon the administration of Justice, powerful considerations indeed would be required to justify the exercise of discretion in favour of access. When assessing the extent to which the direction sought might impact upon the administration of Justice, regard will properly be taken of the desirability of encouraging voluntary participation in [VRIs]. However, there will be circumstances in which it can safely be concluded that the making of a direction sought would not have any adverse impact upon the rate of participation in such interviews – such as, for example, when the direction is actively supported by the interviewee.
70In the course of the discussion leading to the conclusion set out above, his Honour observed (at paragraph 67):
... it is important to distinguish between a direction which has the effect of removing a statutory prohibition upon access, and the conferral of a right of access. There is nothing in s 122 or the rest of the [CIA], which would suggest that the court is given power to create a right of access where such a right would not otherwise exist. As I have observed, courts have general powers to grant access to materials tendered to the court, and which are in the possession of the court, or to make directions binding on the parties to proceedings for the purposes of preparation for trial and re-trial.
71It is apparent, therefore, that on two occasions in Ex parte WAN (at paragraphs 61 and 67), the Chief Justice (with whom Newnes AJA agreed) emphasised the general powers of courts to conduct their own proceedings and to control access to evidence.
72In her dissenting judgment in Ex parte WAN, McClure JA also discussed the scheme of Part 11 of the CIA. Her Honour said (at paragraphs 81 and 82):
The primary purpose of Part 11 ... is to encourage the use of [VRIs] ...
... It is in the best interests of the criminal justice system that suspects voluntarily participate in an interview that is the subject of [a VRI].
73After summarising the "significant restrictions on the use to which (a VRI) can be put" and referring to sections 120 and 122 of the CIA, her Honour focused on the definition of "authorised person" in s 120(1). Her Honour noted (at paragraphs 87 and 88):
All the nominated authorised persons are persons who are the holders of public office or public offices or public institutions [all] of whom are required to be acting in the course of their duties. Only a court and the coroner have the power to widen the range of authorised persons by making a direction in relevant terms. The direction must place the person under a duty.
The list of authorised persons goes beyond persons involved in the investigation of, and prosecution of legal proceedings relating to, a criminal offence.
74It is immediately apparent that "the coroner" is not one of the four courts referred to in s 122 of the CIA. This distinction is relevant to the Commissioner's submissions.
75Before discussing the meaning and effect of the legislation in more detail, it is necessary to recognise that the "essential question" in the application currently before this Court differs from the "essential question" with which the Court of Appeal was concerned in Ex parte WAN. In that case, the court at first instance (the Supreme Court) was dealing with an application by West Australian Newspapers Ltd – pursuant to s 122 of the CIA – for orders permitting it to possess and broadcast a portion of a VRI. It is clear that West Australian Newspapers Ltd is not an "authorised person" pursuant to s 120(1) of the CIA, and that its application was made pursuant to s 121 of the CIA (see Re Corruption and Crime Commission; Ex parte West Australian Newspapers Ltd [2007] WASC 201).
76Section 121 of the CIA specifically refers to a direction of a court given under s 122. It reads, relevantly:
A person must not broadcast [a VRI or any part of a VRI] unless the broadcast is made under a direction of a court given under section 122.
77Because s 121 specifically refers to a direction under s 122, and because the Supreme Court is clearly one of the courts referred to in s 122, neither the judge at first instance nor the Court of Appeal was required to consider whether the expression "under a direction of a court" in s 120(3)(d) should be interpreted as meaning "under a direction of a court given under section 122". As I have indicated above, the Chief Justice (with whom Newnes AJA agreed) said that the "essential question" in Ex parte WAN was (at paragraph 50):
whether, in the context of Part 11, s 122 [of the CIA] gives the Supreme Court a general discretion to make directions with respect to the supply, copying, playing, broadcast etc of a [VRI], to be exercised having regard to all relevant facts and circumstances, or whether that discretion is constrained so that it can only be exercised in favour of the grant of access if such a grant will positively advance the interests of justice or there are otherwise exceptional circumstances.
78It follows that the focus of the Court of Appeal's attention in Ex parte WAN was the manner in which the Supreme Court's (undisputed) power under s 122 of the CIA should be exercised.
79McClure JA dealt with "the scope of the s 122 power" under a heading to that effect above paragraph 93 of Ex parte WAN. Relevantly, her Honour's discussion focused on "the scope of the discretion of the courts nominated in s 122" (at paragraph 93 of Ex parte WAN). Her Honour's views regarding the scope of the discretion of the courts referred to in s 122 under that section were not shared by the Chief Justice and Newnes AJA.
80The broad questions for determination in the current proceedings, however, are whether the Family Court has power to give directions regarding the playing of a VRI in proceedings before it, and, if so, whether the making of such directions falls within the exception contained in s 120(3)(d) of the CIA. It is not in dispute that the Family Court is not one of the courts referred to in s 122, and hence the scope of the discretion of those courts under that section is not directly relevant to the questions for determination in the current proceedings.
Discussion
The Family Court is "a court"
81There can be no doubt that the Family Court of Western Australia is "a court". It was, of course, established by the Family Court Act 1975 (WA), and continued by the FCA after the repeal of the earlier Act. The Family Court is a court of record (see s 9 of the FCA).
82The Family Court consists of the Chief Judge, other judges appointed under s 11 of the FCA and any relevant acting judges. The Chief Judge and all other judges of the Family Court have concurrent appointments as judges of the Family Court of Australia.
83The principal courts exercising jurisdiction under the Family Law Act 1975 (Cth) comprise the Family Court of Australia, the Family Court of Western Australia and the Federal Circuit Court of Australia. The Family Court (of Western Australia) also has Commonwealth jurisdiction under the Marriage Act 1961 (Cth), the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth), together with State jurisdiction under the FCA and other State legislation.
84I have already referred to aspects of the Family Court's jurisdiction. It is not necessary to discuss other aspects of that jurisdiction in any more detail at this time. A helpful summary can be found in Dickey, Family Law, 5th ed, 2007, at 104-106.
85The CIA does not define "court", except in relation to applications made pursuant to s 151 of the CIA (which deals with the procedure to be adopted in the event of seizure of privileged material). For the purposes of s 151, "court" is expressed to mean the Magistrates Court (see s 151(1) of the CIA).
86In relation to Part 11 of the CIA, and given that the Family Court is "a court", the ordinary principles of statutory construction lead inevitably to the conclusion that it comprises an "authorised person" under s 120(1)(h) of the CIA. The Commissioner does not suggest otherwise.
87Similarly, "a person acting at the direction of (the Family Court)" is also an "authorised person" under s 120(1)(h) of the CIA.
88The Commissioner concedes that the same reasoning applies to s 120(2) of the CIA, and that it would not be an offence for the Family Court – or, by necessary extrapolation, a person acting at the direction of the Family Court – to be in possession of a VRI, including a VRI produced pursuant to a subpoena (see paragraph 20 of the written submissions).
89The Commissioner argues, however, the definition of "a court" metamorphoses in s 120(3) – and, relevantly, s 120(3)(d) – to mean one of the courts referred to in s 122. According to the written submissions:
21.... when considering the definition of "a court" in s 120(3)(d) of the CIA, consideration must be given to whether the source of power for "a court" to make a direction regarding playing a VRI exists. The only such power in Part 11 exists in s 122 which provides (emphasis added):
The Supreme Court, District Court, Magistrates Court or Children's Court may give directions (with or without conditions) as to the supplier, copying, editing, erasure, playing, or broadcast of an audiovisual recording of an interview.
22.Nowhere else in the CIA is "a court" empowered to make a direction about the "playing" of VRIs. The Family Court of Western Australia does not have a general power elsewhere in legislation to give directions regarding VRIs. Thus, while the Family Court of Western Australia is able to legally possess a copy of a VRI as an "authorised person" in s 120(1), it is not empowered to make directions regarding the playing of a VRI.
23.Thus, the reference in s 120(3)(d) to "a court" must be reference to a court empowered to make a direction regarding the playing of VRIs under s 122. The Family Court of Western Australia is not such a court and thus it would constitute an offence to play the VRI in the present proceedings without the parties first obtaining a direction under s 122.
90The written submissions continue:
24.This appears to be why s 120(3) distinguishes between "a court" under paragraph (d) and the Coroner's Court under paragraph (b). That is, the Coroner's Court does not have the power to make directions (for) the playing of the VRI so an exception is created in paragraph (b). If "court" in paragraph (d) was taken to mean any court, paragraph (b) would be superfluous.
Coroner's Court analogy
91Leaving aside other aspects of the Commissioner's argument for the moment, this submission must be rejected. Section 120(3)(b) does not refer to "the Coroner's Court". It provides (relevantly) that a person who plays a VRI to another person commits an offence unless the VRI is played "for purposes connected with proceedings before a coroner". The expression "purposes connected with proceedings before a coroner" is clearly wider than a reference to the VRI being played in proceedings in the Coroner's Court, not least because it envisages a person playing the VRI independently, without supervision of any form and otherwise than under a direction of a court.
92The Coroner's Court is a court established pursuant to s 5 of the Coroners Act 1996 (WA), and is a court of record. Like the Family Court, it is not one of the courts referred to in s 122 of the CIA. By virtue of s 11 of the Coroners Act 1996 (WA) "every magistrate is contemporaneously a coroner". Section 6 of the same Act provides for the appointment of a State Coroner, whose functions are listed in s 8. The Act also provides for the appointment of a Deputy State Coroner. The definition of "coroner" in s 3 of the Act includes the State Coroner and the Deputy State Coroner.
93The functions of the State Coroner listed in s 8 of the Coroners Act 1996 (WA) are principally administrative.
94It follows that, prima facie, the exception in s 120(3)(d) of the CIA applies to the Coroner's Court as it does to any other court (including the Family Court), and paragraph (b) is not superfluous. Section 120(3)(a), (b) and (c) all refer to a VRI being played "for purposes connected with" certain proceedings, and not to the playing of the VRI in the proceedings themselves. Nor do they refer to the VRI being played under the direction of a court or anyone else. They permit the playing of a VRI in a wide range of circumstances not directly overseen by a court or supervised – directly or indirectly – by anyone. Indeed, paragraph (c) refers to the playing of a VRI for purposes connected with proceedings under the Police Act 1892 (WA) to remove a member – which proceedings are administrative (see ss 8, 33L and 33N of the Police Act 1892 (WA)).
The Commissioner's primary argument
95The Commissioner's primary argument is that only the courts listed in s 122 of the CIA are empowered to give directions regarding the playing of VRIs. Three propositions are advanced in support of this argument:
a)The only source of power for "a court" to make directions regarding playing a VRI is contained in s 122 of the CIA. The Family Court is not included in the courts listed in s 122 and hence it is not empowered to make such directions.
b)The Family Court (and, presumably, any other court not listed in s 122) does not have an inherent, general or implied power to make directions regarding the playing of a VRI.
c)The exclusion of the Family Court from the list of courts in s 122 is deliberate, and consistent with the purpose of Part 11 of the CIA.
Source of power to make relevant directions
96It is pertinent to observe at the outset that s 120 of the CIA does not operate, in its terms, to empower courts, coroners or other authorised persons (all of whom must be acting in the course of duty) to give directions or take any other step relating to the supply, copying, editing, erasure, playing or broadcast of a VRI. Subject to certain defined exceptions, it makes it an offence to possess, play to another person, supply, offer to supply (or permit someone else to copy), or erase a VRI. Different exceptions adhere to the various offences created by the section.
97Authorised persons as defined in s 120(1) – all of whom must be acting in the course of duty – are exempted from some, but not all, of the prohibitions set out in s 120. For example, authorised persons do not commit an offence if they are in possession of a VRI (paragraph (2)), or copy or permit another person to copy any part of a VRI (paragraph (6)).
98One exception to the prohibitions in s 120 applies to some, but not all, authorised persons. The prohibition against playing a VRI to another person does not apply to a police officer, a CCC officer, the Parliamentary Inspector and an ombudsman officer (provided that they are acting in the course of duty): see s 120(3) and (4). All of these officers fall within the definition of an authorised person (provided that they are acting in the course of duty).
99Of most relevance, of course, is s 120(3)(d) of the CIA – which provides that a person who plays a VRI to another person commits an offence except when the recording is played under a direction of a court. The Commissioner contends that such a direction can only be given under s 122. The question arises, therefore, why the requirement for a direction under s 122 is not specifically mentioned in s 120(3)(d) – given that it is specifically mentioned elsewhere in s 120.
100Thus, s 120(5) provides that it is an offence to supply or offer to supply a VRI to a person who is not one of a nominated category of persons unless the person who supplies or offers to supply the VRI "is acting under a direction given under s 122". Similarly, s 120(6) provides that a person (other than an authorised person) who copies any part of a VRI or permits another person to do so commits an offence "unless the person is acting under a direction given under s 122". Section 120(7) provides that an authorised person who erases a VRI commits an offence "except when the person is acting under... a direction given under s 122".
101Applying ordinary principles of statutory construction, the references to directions given under s 122 in s 120(5), (6) and (7) suggest that the absence of such a reference in the other paragraphs of s 120 is deliberate. Given that the drafting structure already exists in s 120 itself (as well as in s 121, which makes it an offence to broadcast any part of an VRI "unless the broadcast is made under a direction of a court given under s 122"), it would have been both simple and logical for the Parliament to include the words "given under s 122" after the words "the recording is played under a direction of a court" in s 120(3)(d) if it had intended that restriction to apply. Similar wording could have been added to the words "a court or a person acting at the direction of a court" in sub-paragraph (h) of the definition of an authorised person in s 120(1).
102The omission of any reference to s 122 in s 120(3)(d) – and in s 120(1)(h) – of the CIA confirms that the source of a court's power to make the directions contemplated by that provision (regarding the playing of a VRI) is not to be found in s 122. Conversely, the reference to directions given under s 122 in s 120(5), (6) and (7) - and in s 121 - confirms unequivocally that the source of power to make the type of directions envisaged by those provisions is to be found in s 122. It follows that only the courts listed in s 122 are empowered to give relevant directions under s 120(5), (6) and (7), and under s 121.
103The "work" that s 122 of the CIA is required to do (see paragraph 11 of the written submissions) is associated with the giving of directions under s 120(5), (6) and (7), and s 121.
104In my opinion, the source of a court's power to make directions falling within, or authorised, justified or excused by, s 120(3)(d) of the CIA emanates from –
a)the specific powers that the court may have by virtue of the jurisdiction with which it is endowed (by common law or by statute, and including such accrued, associated or other jurisdiction that it may have); and
b)the general powers of courts to conduct their own proceedings and to control access to evidence – which general powers were emphasised by the Chief Justice (with whom Newnes AJA agreed) on two occasions in Ex parte WAN (see paragraphs 61 and 67).
General powers (or incidental and necessary powers)
105The general powers referred to in the previous paragraph are uncontroversial. For example, in Re P’s Bill of Costs (1982) 45 ALR 513 at 519, the Full Court of the Family Court of Australia (per Evatt CJ and Fogarty J – with whom Gee J concurred at 533) said:
Although the Family Court [of Australia] is a creature of statute it is a court of record and has inherent powers in appropriate circumstances. Those are powers which arise as a necessary adjunct to the existence of the court itself, and such as are necessary to control and regulate the proceedings before it and to avoid injustice. ...
106In Jago v the District Court (NSW) [1989] 168 CLR 23 at 74, Gaudron J said:
Subject to any limitation or restriction to be found in statute, a court necessarily has power (whether that power is identified as inherent power or a power necessarily to be implied from relevant statutory provisions) to control its own process and proceedings.
The power of a court to control its own process and proceedings manifests itself in a variety of ways ...
The power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.…
107Her Honour's comment that the power of a court to control its own processes is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands, was adopted by the Full Court of the Family Court of Australia in Central Authority v Wageman [2012] 48 Fam LR 254 at 263.
108In DJL v The Central Authority [2000] 201 CLR 226 at 240-241, the High Court said (references omitted):
The Family Court [of Australia] is ... not a common law court as were the three common law courts at Westminster. Accordingly, it is "unable to draw upon the well of undefined powers" which were available to those courts as part of their "inherent jurisdiction". The Family Court [of Australia] is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "this is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred". It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as the identification of the incidental and necessary power of a statutory court.
109It follows that the Family Court of Western Australia – which, like the Family Court of Australia, is a statutory court – has the powers expressly or by implication conferred by the legislation which governs it and, in addition, such powers as are incidental and necessary to the exercise of the jurisdiction or powers so conferred. These additional powers do not comprise a form of "inherent jurisdiction".
110The Family Court's incidental and necessary powers (for want of a better description) are more than sufficient to empower it to make directions regarding the playing of a VRI in proceedings before it. The Family Court's powers in this regard are separate from, and not abrogated by, any of the provisions contained in Part 11 of the CIA. The fact that s 122 empowers four named courts to give directions "as to the supply, copying, editing, erasure, playing, or broadcast" of a VRI does not imply that the Family Court cannot make directions regarding the playing of a VRI in the ordinary exercise of its jurisdiction, or pursuant to its incidental and necessary powers. Nothing in s 122 prohibits the Family Court from making such directions – which are clearly contemplated by the provisions of s 120(3)(d). But the Parliament has clearly prohibited the Family Court from making the type of directions contemplated in s 120(5), (6) and (7) and s 121.
Statutory powers
111Even without the incidental and necessary powers to which reference has been made, the Family Court is empowered to give directions regarding the playing of a VRI.
112As discussed above, the Family Court is "a court". It has throughout the State of Western Australia the federal jurisdiction with which it is invested by or under the Family Law Act 1975 (Cth) and other relevant Commonwealth Acts (see s 35 of the FCA), and it has throughout the State of Western Australia certain non-federal jurisdictions conferred on it by the FCA or any other State legislation. Relevantly, it has non‑federal jurisdiction to make parenting orders in respect of ex‑nuptial children, or in respect of the welfare of such children (see FCA s 36).
113Generally speaking, and subject to the provisions of the FCA, the Family Court may make such order as it thinks proper when exercising its non-federal jurisdictions with respect to a child (see FCA s 37(2)).
114The substantive proceedings involve competing applications for parenting orders made by the parents of ex-nuptial children. They are child-related proceedings (see above) which are clearly within the jurisdiction of the Family Court, and in which the Family Court is obliged to regard the best interests of the children as the paramount consideration. As indicated above, the father, the mother, the ICL and the Commissioner all concede that the VRI is relevant to the issues that the Family Court must determine in the substantive proceedings.
115Pursuant to s 202B of the FCA, the Family Court must give effect to certain principles in performing its duties and exercising powers in relation to child-related proceedings, and in making other decisions about the conduct of child-related proceedings (although failure to give effect to the principles does not invalidate the proceedings or any order made in them). The principles include the following (see s 202B(5) and (6):
a)The court is to actively direct, control and manage the conduct of the proceedings.
b)The proceedings are to be conducted in a way that will safeguard –
i)the child concerned against family violence, child abuse and child neglect; and
ii)the parties to the proceedings against family violence.
116Beyond the broad jurisdiction of the Family Court in the substantive proceedings, two provisions of the FCA are of significance in the current context:
a)FCA s 213(1) provides that the Family Court (or the Principal Registrar) may give such directions in relation to proceedings under the FCA generally as are desirable or necessary for the purposes of the FCA.
b)FCA s 212(2) provides that:
In any proceedings under this Act, a court may, of its own motion or on the application of a party to the proceedings, make one or more of the following orders –
•an order that a specified person is not, or specified persons are not, to be present in court during the proceedings or during a specified part of the proceedings;
•an order that persons included in a specified class of persons are not to be present in court during the proceedings or during a specified part of the proceedings;
•an order that only the parties to the proceedings, the legal representatives and such other persons (if any) as are specified by the court may be present in court during the proceedings or during a specified part of the proceedings.
117Thus, the Family Court is empowered by statute to make precisely the type of directions sought by the parties and the ICL in relation to the playing of the VRI.
Conclusion regarding source of power
118It is apparent from the above discussion that the Family Court has both specific power (under the FCA) and sufficient additional or incidental and necessary powers to make directions falling within, or authorised, justified or excused by, s 120(3)(d) of the CIA.
CIA Part 11
119Mr Bennett submits that the Commissioner's suggested interpretation of s 120(3)(d) – to the effect that the reference in it to "a court" must be a reference to a court empowered to make a direction regarding the playing of VRIs under s 122 of the CIA – is "entirely consistent with the purposes of Part 11 and the CIA generally": see paragraph 25 of the written submissions.
120According to the written submissions –
25.... It has been said that the primary purpose of Part 11 of the CIA is to encourage the use of audiovisual recordings of interviews with the suspect. This enhances the quality of confessional evidence given in criminal proceedings. There are public policy grounds supporting statements of accused persons being audio visually recorded. Audiovisual recordings reduce the possibility of police impropriety, allow a jury to view the accused at the time of the alleged offence, and make the process and procedure by which any confession is obtained clear and unequivocal to a jury.
26.It is reasonable to infer that the legislature was motivated by a concern that if it were to become commonplace for video recorded interviews to be supplied to the media against the wishes of the interviewee, this could discourage voluntary participation in video records of interview, to the detriment of the administration of justice.
121The principal authority cited in support of the above submissions is Ex parte WAN.
122Leaving aside the fact that the current application has nothing to do with a VRI being supplied to the media (with or without the consent of the interviewee), I accept that these submissions adequately summarise the general purpose of Part 11 of the CIA. The Commissioner argues, however, that "an interpretation that puts fairly restrictive impositions on what the Family Court may do with a VRI in its possession is consistent with the purpose of ensuring that it will not become commonplace that VRIs are requested and played in related proceedings without the accused person having an opportunity to be heard on the matter" and that "s 122 confers on every one of those involved in the record of interview a right to be heard, including the interviewee and the police officers involved in the interview" (at paragraph 28 of the submissions). These submissions should be rejected: the first appears to devalue the Family Court's capacity to understand and give weight to Part 11 of the CIA, and its willingness to adhere to the rules of procedural fairness; the second appears to involve a misreading of s 122.
123In its terms, s 122 of the CIA does not confer a right to be heard on the suspect/interviewee, relevant police officers or any other person. It is for the courts listed in that section to ensure that all relevant parties are afforded procedural fairness. The Family Court is no more likely to overlook or override the rules of procedural fairness – when considering suitable directions relating to the playing of a VRI in or for the purposes of proceedings before it – than any of the courts listed in s 122.
124In the current proceedings, the interviewee is the father. He is a party to the substantive proceedings and has consented to the playing of the VRI (subject to certain agreed conditions). None of the father, the mother, the ICL or the Commissioner has suggested that some other person should be heard in relation to the playing of the VRI, and the evidence does not support the need to locate and notify additional affected persons of the possibility of the VRI being played. It is fair to assume that, in the vast majority of cases, the Family Court will only be asked to give directions regarding the playing of a VRI where the interviewee is one of the parties to the proceedings before it – although there is a possibility that directions may be sought regarding the playing of a VRI where the interviewee is a "significant adult" in the life of a child the subject of the proceedings (such as, for example, a parent's partner). Irrespective of the factual scenario, however, there is no basis for suggesting that the Family Court is less willing or less able to apply the rules of procedural fairness than the courts referred to in s 122.
125The Commissioner also submits that, because the four courts listed in s 122 have criminal jurisdiction, they are "the appropriate forums to decide whether a VRI of a suspect should be played outside the confines imposed elsewhere in Part 11 of the CIA". This submission should also be rejected. It appears to be inviting what the Chief Justice described as "the imposition of judicially divined policy" (Ex parte WAN at paragraph 51). The Supreme Court, District Court and Magistrates Court all have civil jurisdiction as well as criminal jurisdiction. The Children's Court has jurisdiction in child welfare matters. Applications for directions under s 122 are commonly made in the context of civil proceedings. Applications under s 121 relating to the broadcasting of a VRI, would inevitably, or almost inevitably, be made in the context of civil proceedings. In Ex parte WAN at paragraph 29, the Chief Justice observed that the majority of the applications brought under the predecessor to s 122 (being the now repealed s 570F of the Criminal Code Contemplation Act 1913 (WA)) were resolved on an ex tempore basis and involved "relatively non-contentious circumstances – commonly being applications by one accused person for a copy of the videotaped record of interview of a co-accused, or occasionally, applications to permit use of tapes for the purposes of education and instruction (under 124 of the CIA)". The five Western Australian cases referred to by the Chief Justice in paragraphs 30 to 44 of Ex parte WAN all involved applications made in the context of civil proceedings, as did the substantive proceedings in Ex parte WAN itself.
126It should be added that the Commissioner did not particularise any special skills (as it were) that courts exercising criminal jurisdiction have or may be perceived as having when hearing and determining applications for directions under relevant provisions within Part 11. Nor did the Commissioner explain why the Family Court is less capable of determining applications for directions regarding the playing of a VRI in or for the purposes of proceedings before it than are those courts – or, indeed, why it might be perceived to be in the public interest for litigants in the Family Court to have to make application to a different court for directions relating to the conduct of their proceedings in the Family Court and the manner in which the parties' and the Family Court's access to evidence should be controlled in those proceedings.
127The Commissioner's submission also overlooks the fact that – in practical terms – the Family Court (or the Magistrates Court constituted by a family law magistrate) has exclusive jurisdiction to deal with the substantive proceedings. With the limited exceptions to which I have referred above, the Parliament has clearly recognised the Family Court (or the Magistrates Court constituted by a family law magistrate) as being the appropriate forum for resolving child-related proceedings, and other proceedings that fall within its jurisdiction. Nowhere in the CIA is it possible to ascertain a policy of the Parliament (evident in the language which it has used) to the effect that the Family Court should transfer to another court responsibility for directing, controlling or managing any aspect of the conduct of proceedings properly within its jurisdiction.
128In paragraph 27 of the written submissions, the Commissioner argues:
... Part 11 imposes a strict regime which limits possession, use and supply of video records of interview to persons and purposes associated with the investigative and trial processes, unless a court expands the persons who may obtain the material, and the uses to which it can be put, by making a direction under s 122.
129In support of this proposition, the Commissioner refers to in paragraph 87 of the dissenting judgment of McClure JA in Ex parte WAN. The reference to that paragraph would appear to be an error.
130It is the case, however, that her Honour said (at paragraph 91 of Ex parte WAN) that "the power to give directions is in 122" of the CIA. Her Honour was referring, however, to s 121 and the other provisions in Part 11 which refer to "a direction given under s 122", and not to s 120(3)(d) – which does not refer to s 122: see paragraphs 83 to 90 of Ex parte WAN.
131As indicated above, her Honour's discussion in Ex parte WAN focused on "the scope of the discretion of the courts nominated in s 122" (at paragraph 93). The questions for determination in the current proceedings, however, are whether the Family Court has power to give directions regarding the playing of a VRI in or for the purposes of proceedings before it, and whether such directions might be regarded as falling within the exception contained in s 120(3)(d). It is not in dispute that the Family Court is not one of the Courts referred to in s 122, and hence the scope of the discretion of those Courts under that section is not directly relevant to the question for determination in the current proceedings.
132In paragraph 94 of Ex parte WAN, her Honour wrote:
The scope of the statutory exceptions as of right (the non-discretionary exceptions) are relevant to the scope of the discretionary power in s 122. The non-discretionary exceptions are very narrowly circumscribed. They permit dealings with [a VRI] for the limited purposes of facilitating (1) the prosecution and defence of indictable criminal offences in the courts; (2) the investigation by the police, the CCC and the coroner of matters involving actual or potential criminal conduct; (3) the investigation of misconduct by officers involved in (1) and (2); and (4) the training of some personnel involved in (1) - (3). Thus, in broad terms the non-discretionary exceptions to the general prohibitions relate (directly and indirectly) to the efficient and proper investigation and prosecution of indictable criminal offences in this State.
133With respect to her Honour, the summary set out above does not appear to be supported by the provisions of the CIA. Put another way, it is difficult to see where those "limited purposes" appear in the CIA. Importantly, there is no reference in Part 11 of the CIA to a limitation to indictable criminal offences – and the Chief Justice expressed the view that there should be no limitations which are not expressly stated in the provisions of the CIA. Similarly, and again with respect to her Honour, it would appear that the conclusion in the final sentence of paragraph 94 of Ex parte WAN is not supported by either the provisions of Part 11 of the CIA or the principles of statutory construction.
Summary
134As explained above, the relevant directions for the playing of the VRI are sought by the parties and the ICL in the context of the substantive proceedings. Practically speaking, the substantive proceedings are within the exclusive jurisdiction of the Family Court (or the Magistrate's Court constituted by a family law magistrate).
135In my view, the Family Court has both specific power (under the FCA) and sufficient additional or incidental and necessary powers to make the directions sought.
136The directions that the Family Court proposes to make fall within the exception contained in s 120(3)(d) of the CIA. Put another way, s 120(3)(d) does not prohibit the making of such directions by the Family Court.
Family law magistrates
137Although it is not necessary to express a view as to what might be an appropriate course of action for the Family Court to adopt if it were to lack the power to make directions as to the playing of the VRI in the context of the substantive proceedings (or if the making of such directions were to be prohibited by the provisions of Part 11 of the CIA), I should now revisit briefly the comment contained in the introduction to these Reasons to the effect that, if the Commissioner's contentions are correct, then the practical effect of Part 11 of the CIA is that a judge of the Family Court must direct the parties to a magistrate (in this case, a family law magistrate) to consider whether to give directions relating to the playing of the VRI, and what those directions should be.
138One of the courts listed in s 122 of the CIA is the Magistrates Court. Section 5 of the Interpretation Act 1984 (WA) provides that "in this Act and every other written law ... Magistrates Court means the Magistrates Court of Western Australia established by the Magistrates Court Act 2004". Similarly, "magistrate" is defined to mean a magistrate of the Magistrates Court.
139Section 4 of the Magistrates Court Act 2004 (WA) ("MCA") establishes the Magistrates Court. Section 3 defines a person appointed under Schedule 1 of the MCA as a magistrate of the Magistrates Court.
140The combined effect of ss 3 and 7 of the MCA is that, subject to certain exceptions, the Magistrates Court is to be constituted by one magistrate. Pursuant to s 8 of the MCA, the Magistrates Court may exercise its jurisdiction at any time and place within Western Australia (and, subject to the approval of the Chief Magistrate, outside Western Australia).
141Section 25 of the MCA empowers the Chief Magistrate to assign duties to magistrates. For example, the Chief Magistrate may specify which cases or classes of cases a magistrate is to deal with and in which division of the Magistrates Court the magistrate is to sit. Section 25(5) provides as follows:
In the case of a magistrate who is also the Principal Registrar or a registrar of the Family Court, this section ... [applies] as if the reference to the Chief Magistrate were a reference to the Chief Judge of the Family Court or his or her delegate.
142The Principal Registrar of the Family Court, and the majority of the registrars of the Family Court, have been appointed magistrates under the provisions of the MCA. Pursuant to s 5 of the FCA, they are known as family law magistrates (a family law magistrate being defined to mean a person who is both a magistrate appointed under the MCA and either the Principal Registrar or a registrar of the Family Court).
143Section 25 of the FCA provides, among other things, that the Attorney General is to appoint certain officers of the Family Court, including the Principal Registrar and registrars. Section 26 of the FCA is as follows:
Principal Registrar and registrars may be magistrates
(1)Nothing in section 25 prevents the Principal Registrar or any registrar from being appointed and holding office as a magistrate under [the MCA].
(2)During any period when a person who is the Principal Registrar or a registrar is a magistrate, the person is not a member of the Public Service and references in this Act to the Public Service and to Part 3 of the Public Sector Management Act 1994 do not apply to that person.
(3)If the Principal Registrar and any one or more registrars hold office as magistrates, the Principal Registrar is the senior of them.
(4)This Act does not prevent a family law magistrate from constituting the Magistrates Court at a place in or outside the metropolitan region.
144Division 2 of Part 3 of the FCA is headed Jurisdiction of courts of summary jurisdiction. Relevantly, the Division contains ss 38 and 39. I have already referred to the provisions of s 39 under the heading Jurisdiction of the Family Court (as relevant to the substantive proceedings) above. Section 38 is as follows:
38.Federal jurisdiction of courts of summary jurisdiction
A court of summary jurisdiction constituted by a magistrate or a family law magistrate has the federal jurisdiction with which it is invested by or under the Family Law Act.
145I have also referred to Division 4 of Part 3 of the FCA, including s 44, under the heading Jurisdiction of the Family Court (as relevant to the substantive proceedings).
146It is clear from the above, and from the provisions of the FCA and the MCA, that family law magistrates have the same powers as all other magistrates appointed under the MCA. They also have certain additional powers granted to them pursuant to the provisions of the FCA. Similarly, it is clear that the Magistrates Court is constituted by a family law magistrate in the same way that it is constituted by any other magistrate appointed under the MCA. Thus, a family law magistrate is empowered to give directions under s 122 of the CIA. A family law magistrate is also empowered to give directions for the playing of a VRI, which directions might be regarded as falling within the exception contained in s 120(3)(d) of the CIA.
Exercise of discretion
147Although this Court is not exercising a discretion conferred by s 122 of the CIA, the comments made by the Chief Justice in Ex parte WAN at paragraph 69 (with which Newnes AJA agreed) provide guidance as to the manner in which this Court should approach the giving of directions for the playing of a VRI in or for the purposes of proceedings before it. Thus, "constraints artificially imposed by the imposition of restrictions upon the exercise of the discretion which are not found in the express terms of [the CIA]" should be avoided. All relevant facts and circumstances should be considered, including "the subject matter, scope and evident legislative purpose" of the CIA. These matters have been discussed elsewhere in these Reasons.
148The Court is required to take into account, in particular, the likely effect of any direction as to the playing of a VRI upon the administration of justice. If, on balance, a conclusion is reached to the effect that playing the VRI "would impact adversely on the administration of justice, powerful considerations indeed would be required to justify the exercise of the discretion" in favour of allowing the VRI to be played.
149The Court is also required, when assessing the extent to which the playing of the VRI might impact on the administration of justice, to have regard to "the desirability of encouraging voluntary participation in video recorded interviews". However, and as the Chief Justice said in paragraph 69 of Ex parte WAN –
there will be circumstances in which it can safely be concluded that the making of a direction sought would not have any adverse impact on the rate of participation in such interviews – such as, for example, when the direction is actively supported by the interviewee.
150Taking all these matters into account, and bearing in mind that –
a)the interviewee (who is the father in the substantive proceedings) actively supports the playing of the VRI, and consents to directions being made to enable that to occur;
b)all parties (including the father, the mother, the ICL, and even the Commissioner) concede that the evidence contained in the VRI is both relevant and admissible in the substantive proceedings – which proceedings relate to the best interests of children;
c)there is no likely adverse effect on the administration of justice if the playing of the VRI in the current proceedings were to occur (indeed, the administration of justice would be assisted by the playing of the VRI);
d)the playing of the VRI in the context of the current proceedings is unlikely to have any adverse impact on the rate of voluntary participation in video recorded interviews; and
e)the directions agreed to by the parties do not provide for publication of the VRI (or any portion thereof) to the public or any portion thereof: the only persons who are to be authorised to possess, play and view the VRI other parties' legal representatives, the ICL and the single expert witness.
I am satisfied that the directions sought by the parties and the ICL should be made.
151The directions that I propose to make are as follows:
In relation to the video record of interview of the father conducted by the Western Australian Police on 20 January 2012 ("the VRI"):
(a)the Western Australia Police be authorised to supply a copy of the VRI to the Principal Registrar or a registrar of the Family Court of Western Australia for use as the Family Court of Western Australia orders or directs in conducting Family Court proceedings PTW 5336 of 2011; and
(b)the parties, the parties' legal representatives, the ICL (including any counsel briefed by the ICL) and the single expert witness be authorised to possess, play and view the VRI, provided that such possession, playing and viewing be wholly within the precincts of the Family Court of Western Australia and –
(i)for the purposes of preparing for trial; or
(ii)during the course of the trial itself.
I certify that the preceding [151] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate