Miller and Murphy

[2016] FCCA 974

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER & MURPHY [2016] FCCA 974

Catchwords:
FAMILY LAW – Practice and Procedure – applicant husband seeks release of family consultant’s advice to court for use by him in defence of family violence intervention order sought against him by police – advice to court included interviews with parties’ children aged 13 & 11 – youngest child reported to family consultant that she did not see incident of violence complained of by the wife – wife deposed in her statement to police that child did observe the incident in question – husband seeks to use statement of child in the criminal proceedings – is document covered by provisions contained in section 121 of the Family Law Act – is document subject to implied undertaking that it will not be used in proceedings other than the family law proceedings arising between the parties – should the husband be released from such an undertaking – do special circumstances exist – interests of justice.

Legislation:

Family Law Act 1975, ss.11A, 11B, 11(C)(1), 11E, 11F, 12A, 69ZN, 69ZQ, 69ZS, 121(1)

Family Law Regulations 1984, r:7

Cases cited:
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Re Edelsten; ex parte Donnelly (1998) 18 FCR 434
R v Howe (1978) 4 Fam LR 166
Re Springfield Nominees Pty Ltd [1992] FCA 472
Liberty Funding Pty Ltd  v Phoenix Capital Limited [2005] FCAFC 3
Banks & Loffler [2015] Fam CA 380
Zarins & Mylne (No 3) [2013] Fam CA 737

Applicant: MR MILLER

Respondent: MS MURPHY

File Number: ADC 1931 of 2015

Judgment of: Judge Brown

Hearing date: 20 April 2016

Date of Last Submission: 20 April 2016

Delivered at: Adelaide

Delivered on: 2 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Dillon

Solicitors for the Applicant: Bersee Legal

Counsel for the Respondent: No appearance

ORDERS

1. The applicant Mr Miller be permitted to utilise the report of Child and Family Consultant Ms B dated 23 September 2015 in the intervention order proceedings against him being conducted in the Tanunda Magistrates Court.

2. The application filed 23 February 2016 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Miller & Murphy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1931 of 2015

MR MILLER

Applicant

And

MS MURPHY

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Miller “the husband” and Ms Murphy “the wife” are the parents of X, born (omitted) 2003 and Y, born (omitted) 2004. 

2. The parties met in 1998; married in February of 2003; and separated, on 10 April 2015, when an unpleasant altercation occurred between them, in the kitchen of what was then their family home in (town omitted).

3. Following the incident, police attended at the (town omitted) property and arrested the husband.  He was detained overnight and later charged with the aggravated assault of both the wife and Y.  It is clear from affidavit material, previously filed by…