Langfield v Anderson; Anderson v Langfield
[2023] ACTMC 25
•27 June 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Titles: | Langfield v Anderson; Anderson v Langfield | |
| Citation: | [2023] ACTMC 25 | |
| Hearing Date(s): | 27 June 2023 | |
| DecisionDate: | 27 June 2023 | |
| Before: | Special Magistrate Richter | |
| Decision: | FVO 743/2022 Order extended for a period of five years. Costs against the Respondent. FVO 590/2023 Application dismissed. | |
Catchwords: | FAMILY VIOLENCE– Issue of subpoena – protected confidence – general immunity of protected confidence – leave to produce – sexual and family violence offence proceedings – family violence order – cross examination by an unrepresented party – burden of proof – length of order, special or exceptional circumstances – costs. | |
| Legislation Cited: |
| |
| Parties: | FVO 743/2022 FVO 590/2023 | |
| Representation: | Counsel | |
| Solicitors |
SPECIAL MAGISTRATE RICHTER
Before me for hearing are two separate applications for orders pursuant to the Family Violence Act 2016, which were heard together on Tuesday 27 June 2023.
FVO 743/2022 Jacqueline Langfield v Heathen Anderson
FVO 590/2023 Heathen Anderson v Jacqueline Langfield
Ms Langfield was represented by Mr Howard of counsel and Mr Anderson appeared as a litigant in person.
Preliminary issue - subpoena
As a preliminary issue I was required to rule in relation to three subpoenas which were issued at Mr Anderson’s request on 11 May 2023.
The three subpoenas were variously directed to:
a.Ms Langfield – care of her solicitors
b.Evolve Transformational Therapies
c.Barton General Practice.
Material in answer to each of the three subpoenas had been filed in court, but access to that material had not been granted.
A previous order of Magistrate Lawton had restricted access to the returned material.
Application to set aside
An application to set aside each of the three subpoenas was filed on behalf of Ms Langfield on 1 June 2023, based on three grounds:
a.Relevance.
b.That the subpoenas amount to a fishing expedition.
c.That the material sought consists of counselling communications.
Protected confidence
Division 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991, which is titled “sexual and family violence offence proceedings—protection of counselling communications”, is relevant to my consideration of the subpoenas and their standing.
In particular, sections 79, 79A, 79D and 79E are all relevant to the subpoenas that were issued in this case.
Section 79A
Meaning of protected confidence—Div 4.4.3
(1) For this division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed (the counselled person ).
The material sought in each subpoena was counselling records for Ms Langfield.
Ms Langfield is a person against whom a family violence offence had been committed. That offence was an offence of common assault and property damage to which Mr Anderson had previously pleaded guilty.
That prior family violence offending formed part of the factual matrix of her application for an order under the Family Violence Act 2016 .
I find that the material sought is a protected confidence as contemplated by section 79A. In making that finding, I must consider the application of the remainder of Division 4.4.3, and in particular section 79D:
Section 79D
General immunity for protected confidences
(1) This section applies in relation to a proceeding.
(2) A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure.
(3) Without limiting subsection (2)––
(a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; and
(b) protected confidence evidence is not admissible in the proceeding, unless the court gives leave.
A proceeding is defined in section 79 to mean a civil or criminal proceeding, and thus encompasses all the proceedings in this court, including proceedings commenced under the Family Violence Act 2016.
Whilst the Division is titled “sexual and family violence offence proceedings” the definition of a proceeding at section 79 extends the reach of the Division beyond a proceeding for a family violence offence. I am reinforced in that view by the decision of the Supreme Court of the ACT in Stanley (a pseudonym) v Commonwealth of Australia[1] where the application of the Division was contemplated in the face of a civil claim against the AFP.
[1] [2023] ACTSC 157.
Each subpoena sought counselling records for Ms Langfield and is contemplated by section 79D. As such, leave to produce the material was required. As was the case in Stanley, no leave was sought by Mr Anderson, and as such the material produced to the court by the respondents to the subpoenas was produced in breach of section 79D.
The manner of an application for leave is set out in section 79E:
Section 79E
Application for leave to disclose protected confidence
(1) An application for leave must—
(a) be in writing; and
(b) set out the leave sought; and
(c) set out the applicant's arguments in support of the application (including the matters mentioned in section 79F (2)).
(2) The application must also––
(a) set out briefly the nature of the protected confidence evidence (if known); and
(b) set out, or be accompanied by a copy of, any relevant documents.
Mr Anderson had not made a written application. I find this unsurprising given that he is appearing as a litigant in person.[2] In fairness to Mr Anderson, I allowed him to make an oral application after the fact.
Threshold test
[2] The same failure to obtain leave occurred on behalf of solicitors for the Commonwealth in the matter of Stanley.
Division 4.4.3 creates a two-stage process for obtaining access to protected confidences. The party seeking access must first satisfy the “threshold test” of establishing a legitimate forensic purpose for seeking leave to compel the production to the Court of a document recording a protected confidence. If the Court is not satisfied that the applicant has met that threshold test, the Court must refuse the leave sought:
Section 79F
Threshold test––legitimate forensic purpose(1) The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.
(2) To establish a legitimate forensic purpose, the applicant must—
(a) identify a legitimate forensic purpose for seeking the leave; and
(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant's case in the proceeding.
(3) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.
Mr Anderson’s application in relation to the material was focussed on the previous proceedings between these two parties in the FCAFCOA (‘the family law proceedings”) in relation to children’s issues. He sought to rely on the material to indicate that Ms Langfield had issues coping with the children. This was relevant to the family law proceedings, but of no assistance to the court in this matter.
He has made vague reference the records affecting Ms Langfield’s reliability as a witness, however this was against a background of an admitted family violence conviction in which Ms Langfield was the victim, an admitted family violence conviction in relation to his subsequent partner, and independent evidence in relation to a threat made about Ms Langfield in the course of the family law proceedings.
I am not satisfied that the threshold set out at section 79F(2)(b) is met in the circumstances of this case. I refuse leave.
HEARING PROPER
General principles Family Violence Act 2016
In determining this matter, I must take into account the objects of the Act and how those objects are to be achieved. Section 6 sets out those objects:
Section 6
Objects of ActThe objects of this Act include—
(a) to prevent and reduce family violence; and
(b) to ensure the safety and protection of people, including children, who fear, experience or witness family violence; and
(c) to encourage perpetrators of family violence to be accountable for their conduct.
In contemplating the two competing applications before me, I am required to consider the meaning of Family Violence as defined in the Act:
Section 8
Meaning of family violence(1) In this Act:
"family violence" means—
(a) any of the following behaviour by a person in relation to a family member of the person:
(i) physical violence or abuse;
(ii) sexual violence or abuse;
(iii) emotional or psychological abuse;
(iv) economic abuse;
(v) threatening behaviour;
(vi) coercion or any other behaviour that—
(A) controls or dominates the family member; and
(B) causes the family member to feel fear for the safety or wellbeing of the family member or another person; or
(b) behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour.
Further, the Act sets out a series of considerations I must take into account when making an order:
Section 14
Matters to be considered—family violence orders(1) In deciding whether to make a family violence order, a court must consider the following:
(a) the objects of this Act in section 6;
(b) the affected person's perception of the nature and seriousness of the respondent's alleged conduct;
(c) the welfare of any child that is an affected person;
(d) the accommodation needs of the affected person and any child of the affected person or respondent;
(e) any hardship that may be caused to the respondent or anyone else by the making of the order;
(f) any previous family violence or personal violence by the respondent in relation to the affected person or anyone else;
(g) any previous family violence order made in relation to the respondent;
(h) any previous contravention of a family violence order by the respondent;
(i) the need to ensure that property is protected from damage.
FVO 743/22 Langfield v Anderson.
Ms Langfield is the applicant in this matter. She is 40 years of age and has two children aged 10 years and 15 years. I received into evidence her timeline of events as Exhibit 1.
There are three limbs to her application, these are:
a.A long history of alleged domestic violence on the part of Mr Anderson as set out in Exhibit 1.
b.A previous family violence order in favour of Ms Langfield in 2014.
c.A previous family violence order in favour of Ms Langfield in 2016.
d.A previous family violence order in favour of Ms Langfield in 2020 – FVO 930/2020.
i.Application 1/10/2020, interim order granted by Magistrate Boss.
ii.Order 23/11/20 special interim family violence order by Magistrate Taylor.
iii.Order 14/7/22 family violence order, final orders by Magistrate Stewart, to expire 14/7/23
e.An allegation that Mr Anderson said threatening words: “fuck the system, kill the bitch” in reference to Ms Langfield in the course of the family law proceedings..
Ms Langfield was called and her evidence in chief was through her written outline which she adopted in court. She was cross-examined by Mr Anderson with the questions being posed by a Deputy Registrar of this Court as required by section 63 of the Family Violence Act 2016.
The bulk of the cross examination of Ms Langfield focussed on the parallel application 590/2023.
Threat
At the heart of the dispute between these two parties are the words which are alleged to have been said by Mr Anderson: “fuck the system - kill the bitch”.
Those words are said to have been uttered by Mr Anderson against a background where the parties had been involved in a hearing before Judge Neville over two days, 8 & 9 December 2022, with the matter having been adjourned part heard.
Having given evidence throughout day 2 of the trial, on day 3 of the Final Hearing, Mr Anderson declined to proceed with or finalise his cross-examination before Judge Neville (Exhibit 3 -Orders of FCAFCOA 3/2/23.)
Those words were not spoken within the hearing of Ms Langfield, but rather during a telephone call with his then solicitor Ms Allen Brooke Collins of Hosking & Gosling Legal of Wollongong. That these words were spoken was subsequently conveyed to Ms Langfield.
Evidence
Witness: Ms Collins
Ms Collins was called to give evidence by AVL from Wollongong as permitted by section 32 Evidence (Miscellaneous Provisions) Act 1991, and she was affirmed in accordance with section 35B.
She adopted an affidavit which had been prepared by her in relation to the family law proceedings and gave further evidence in accordance with that affidavit.
Her evidence is that having acted for Mr Anderson and having met with him in person and dealt with him by telephone on a number of occasions, she was familiar with, and recognised his voice.
On 26 August 2022 she was engaged in a telephone conversation with Mr Anderson’s then partner, Ms Alison Sweeney, at which time she heard Mr Anderson in the background of that call say the words “fuck the system, kill the bitch”.
She then advised Mr Anderson’s counsel and the Court in accordance with her duty to the Court. She terminated her retainer with Mr Anderson.
Witness: Mr Anderson
In his evidence before me, Mr Anderson said that those words were not spoken by him, but rather were spoken by 3rd party who was a friend of his and who was present during the telephone conversation between Ms Sweeney and his then solicitor.
In cross examination he was taken to his previous affidavit sworn 6 September 2022 (Exhibit 7) which contains the following relevant passages:
[22] I did not say fuck the system kill the bitch.
[23] I did not hear anyone else say fuck the system kill the bitch.
[25] At no stage did anyone threaten, intend to threaten, mean to threaten, want to threaten anyone in general or anyone in these proceedings.
Witness - not called: Alison Sweeney
Mr Anderson did not call his partner Ms Alison Sweeney, however her affidavit sworn 16 August 2022 was tendered by Ms Langfield’s counsel as Exhibit 8.
At [17] of her statement she also denies hearing anyone say those words.
I accepted that affidavit into evidence noting that section 13A and section 65 Family Violence Act dispense with the formal rules of evidence and permits the court to inform itself in any way it considers appropriate.
I consider it more appropriate to receive a previously sworn affidavit of Ms Sweeney into evidence rather than drawing an adverse inference from her having not been called to give evidence in support of Mr Anderson.
Consideration
Section 13 of the Family Violence Act requires me to be satisfied on the balance of probabilities. This is a less onerous burden of proof than in a criminal case.
Ms Collins’ evidence is most forceful. It is a highly unusual situation for her to be in as a solicitor. The step of giving this evidence arises because of her professional obligation to the court which over-rides her obligation to her client. For her to take this step is most serious.
On the other hand, Mr Anderson told me that it was not him who said these words, but rather a friend. He was initially very reluctant to identify that person in cross-examination, but subsequently named a Mark Borsch (or similar).
When I compare that evidence to his previous affidavit – which he now says contains an error – I reject his assertion that someone else said those words. I find that this is a recent invention.
I find that it is more probable than not that it was Mr Anderson who made that statement. Whether or not that statement was made with any true intention, or just him sounding off in frustration at what he perceived as the inequities of the Family Court system is not to the point.
Such a statement made in the course of protracted family court proceedings is not just inappropriate – it is conduct that goes to the heart of the relationship between these two individuals.
I do not find the uttering of those words to be trivial, but even if I did, I would be required to consider the previous nature of the relationship and the previous conduct of Mr Anderson by operation of Section 34(2)(a) Family Violence Act.
Section 14(g) – any previous family violence order.
In addition to the history of family violence orders, which I have referred to at paragraph 27, Mr Anderson gave evidence that in 2020 police had attended at the premises he shared with Ms Sweeney and he was arrested. At that time Ms Langfield was called by police to collect the children from those premises.
At that time he was placed on bail with conditions which functioned to protect Ms Sweeney. These appear to have remained in place until at least July 2021.
In cross-examination Mr Anderson admitted that he had pleaded guilty to charges of common assault and property damage arising from that incident with Ms Sweeney. Those offences are family violence offences.
Mr Anderson was also taken to records of the Child Support Agency which were tendered at Exhibit 9. In his conversation with an officer of the Agency he has referred to an order placed on him by Ms Sweeney which prevents him from attending at the workplace in the company where they both worked at the time. He conceded that a family violence order had been made in favour of Ms Sweeney.
FINDING
I make a final order in terms identical to the interim order of Registrar Banks dated 26 August 2022.
Length of order
In his submissions before me, Mr Anderson said that he does not want to deal with this (meaning the order) until the children are 18 and can make their own decisions. He further stated that he wanted the order to run for 5 years.
The Act limits the length of an order to two (2) years other than in exceptional circumstances..
Section 35
Final orders—length
(1) A final order remains in force for—
(a) 2 years, regardless of whether it is stated in the order; or
(b) if a shorter period is stated in the order—the period stated; or
(c) if the court is satisfied that there are special or exceptional circumstances that justify a longer period—the stated longer period.
Note The Magistrates Court must, on application, extend a final order unless satisfied the order is no longer necessary to protect the protected person from family violence by the respondent (see s 86).
I consider that there are exceptional circumstances that justify a period of longer than 2 years as contemplated by section 35(1)(c).
Mr Anderson’s own submission that he does not want to deal with this until the children are 18 and can make their own decisions, and the progress of family law proceedings in which he did not complete his cross examination, all indicate that the friction between the parties will continue well into the future.
Mr Anderson has displayed a lack of insight in relation to his conduct and the effect it has on Ms Langfield.
Additionally, the requirement for the involvement of the courts in making orders to protect his subsequent partner gives me no optimism for the future of these two parties.
I make the order for a period of 5 years from today’s date.
FVO 590/2023 Anderson v Langfield
This application by Mr Anderson was filed in the court the day before the scheduled date for hearing of the parallel application 743/2022.
His stated reasons for seeking an order are that “due to the constant nature of bringing proceedings against me over the last decade I am seeking an order until the children are both 18.”
The application refers to the Respondent weaponizing the FCFCOA and magistrates court system to humiliate, stalk and harass [him].
He refers to an incident in January 2023 when his children ran across the road to be with him. He has expressed a fear that this type of event will be manipulated to cause him harm.
These assertions were all put to Ms Langfield in cross-examination with a Deputy Registrar asking the questions in accordance with section 63 of the Family Violence Act 2016.
Consideration
I reject the assertions made by Mr Anderson in his application. At best, his application can be seen as a tit-for-tat application. It was an application entirely without merit.
I appreciate his frustration with being unable to maintain contact with his children, and further his frustration with the court system, having been cross-examined by counsel for more than one day in the family law proceedings.
I dismiss the application 590/2023.
Costs
Upon me granting Ms Langfield’s application (743/2022) and dismissing Mr Andersons application (590/2023), Counsel for Ms Langfield made an application for costs.
The costs provision for Family Violence Order applications are set out at section 73 Family Violence Act 2016.
FAMILY VIOLENCE ACT 2016 - SECT 73
Costs
(1) Each party to a proceeding for a family violence order is responsible for the party's own costs of the proceeding.
(2) However, a court may make an order about costs against—
(a) the applicant for a family violence order only if the court is satisfied the application was vexatious, frivolous or in bad faith; or
(b) the respondent if the court considers it appropriate to do so.
(3) For subsection (2) (a), an application is not a vexatious or frivolous application or an application made in bad faith only because it is made then discontinued.
(4) If the court orders costs against a party to a proceeding (the payee ) for a family violence order, the amount must not be more than the costs reasonably incurred by the other party.
(5) The amount stated in the order—
(a) is a debt owed by the payee to the other party; and
(b) is a judgment debt enforceable in accordance with the rules under the Court Procedures Act 2004
Costs are the exception rather than the rule in Family Violence Order applications, however there remains a broad discretion.
There are very different considerations for costs orders as between an applicant or a respondent.
Costs can only be made against an applicant where the court is satisfied that the application was vexatious, frivolous or in bad faith – section 72(2)(a).
In relation to Mr Anderson’s application (590/2023), I am satisfied that the application was made vexatiously. That is, that it was made with no valid grounds, but rather to annoy or to frustrate the application brought by Ms Langfield, which was due for hearing on the day after it was made.
On the other hand, no such finding is required in relation to a respondent – section 72(2)(b). The court does not need to find that a respondent is acting vexatiously, frivolously or in bad faith. The discretion of the Court to award costs as against a respondent is at large, if the court considers it appropriate to do so.
Mr Anderson made it clear in his closing submissions to me that he had no issue with accepting an order against him for 5 years. This is against a background of me having informed him at the commencement of the hearing that he was entitled to accept an order without admission as contemplated by section 33(2)(d) Family Violence Act 2016.
I gained the distinct impression that the running of the hearing in this matter was in some way a case of Mr Anderson evening up for the outcome in the family law proceedings in which he had abandoned the witness box part way through his cross examination.
Given the significant and unnecessary expense to which Ms Langfield has been put by requiring her to prosecute an obvious case for the imposition of an order, I consider it appropriate to order costs in favour of Ms Langfield.
I order costs at 85% of the amount claimed by solicitors for Ms Langfield.
I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter.
Associate: Serrina Kenny
Date: 27 June 2023
1
4