WALMSLEY and SHEPARD

[2017] FCWA 111

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WALMSLEY and SHEPARD [2017] FCWA 111

CORAM: O'BRIEN J

HEARD: 22 AUGUST 2017

DELIVERED : Ex tempore

FILE NO/S: PTW 4286 of 2004

BETWEEN: MS WALMSLEY

Applicant

AND

MR SHEPARD
Respondent

Catchwords:

EVIDENCE - Application for a certificate pursuant to s 11 of the Evidence Act 1906 (WA) in relation to evidence-in-chief proposed to be given on affidavit - Held a certificate may only be given where a witness declines to answer a question or interrogatory - A certificate cannot be given pre-emptively in relation to proposed evidence in chief to be given voluntarily - Application dismissed

Legislation:

Evidence Act 1906 (WA) s 11
Evidence Act 1995 (Cth) s 128
Evidence Act 1995 (NSW) s 128

Category: Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Self-Represented Litigant

Independent Children's Lawyer : No Appearance

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self-Represented Litigant

Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

Aitken v Murphy [2013] FamCA 3

Cornwell v The Queen (2007) 231 CLR 260

Ferrall and McTaggart (trustees for Sapphire Trust) & Ors v Blyton (2000) FLC 93-054

Jarvis v Pike (2013) FLC 93-565

Song v Ying (2010) 79 NSWLR 442

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The application for determination is the Form 2 application of the father filed on 27 January 2017 as amended by his amended Form 2 filed on 14 August 2017 in which he seeks the following orders which I quote verbatim:

1I am seeking the issue of a section 11 certificate to introduce recordings into evidence.

2In the event the application is unsuccessful, I seek that all evidence is destroyed.

3In the event the application is successful, I seek orders that the Independent Children’s Lawyer do make the evidence available to the Single Expert Witness and the Independent Children’s Lawyer.

4I seek leave to file my trial affidavit 14 days after the Family Court of Western Australia makes orders with respect to this Form 2.

5I seek leave for the Single Expert Witness to produce an updating report for trial.

2The recordings referred to are audio recordings made by the father of telephone conversations in apparent breach of the relevant legislation. The certificate sought is a certificate pursuant to s 11 of the Evidence Act 1906 (WA) (“the State Act”).

3I note that the only amendment to the original Form 2 application effected by the filing of the amended application on 14 August 2017 is that the orders sought at paragraph 3 of the original document have been clarified. There is no new relief sought in the amended document.

4The mother has not filed any response to the Form 2 application as it had not been served prior to today’s hearing. The application as amended was initially listed for hearing before me on 14 September 2017, but was brought on today for determination with the agreement of the parties after I had given the mother the opportunity to have the matter stood down and consider the documents, and had made it clear to her that if she sought an adjournment before the application was determined, it would inevitably be granted to her.

5The Independent Children’s Lawyer was not available for today’s hearing, but I am satisfied that it was appropriate for me to bring on the application referred to and determine it today, even in her absence for reasons that will become apparent.

6At the commencement of the hearing this morning, I inquired of the mother as to her position in relation to the application. The mother said that while she had not been served until today, she was content for the matter to proceed to a determination so as to avoid the possible delay of the trial. She opposes the granting of the certificate sought. I regard that approach by the mother as sensible in all the circumstances, as to delay the determination of the father’s application for a certificate would inevitably have the effect of delaying the filing of his trial affidavit material still further and run the risk of the substantive trial itself being delayed, which would be to the detriment of the parties and the children.

7The substantive proceedings are listed for trial before me not before 2 October 2017 and a status hearing has been listed for 26 September 2017 to monitor the readiness of the proceedings for trial. Orders were made on 30 March 2017 by Duncanson J, setting a readiness hearing for 1 June and requiring:

(a)each party to file and serve a minute of proposed orders setting out the orders being sought on a final basis within 28 days; and

(b)each party to file and exchange all affidavit material to be relied upon for the purposes of trial by 14 days prior to the readiness hearing.

8The mother filed her minute of proposed orders in compliance with that order on 28 April. She seeks that all previous parenting orders be discharged and that she have sole parental responsibility for the children, Child A, who is 13 and Child B, who is nearly nine. She proposes that the children live with her and spend time with the father each alternate weekend from after school Friday until 5.30 pm Sunday, subject to certain conditions, the most significant of which is that Child A’s time with the father is proposed by her to be only at the child’s instigation, on his expressed wish, and on him informing the father accordingly. The mother also seeks detailed orders regarding school holidays, special occasions, arrangements for handover and other specific issues.

9The mother filed her affidavit of evidence for the purposes of trial on 22 May 2017 prior to the readiness hearing. She did not file any witness affidavits.

10The day before the readiness hearing, solicitors filed a notice of address for service on behalf of the father. Those solicitors represented him at the readiness hearing. Duncanson J extended by a further 21 days the time within which the father was to comply with the order made on 30 March 2017. Her Honour otherwise made the necessary orders to place the proceedings in the callover for the allocation of a trial date. On 19 June 2017, the solicitors who had momentarily represented the father filed a notice of ceasing to act.

11On 30 June 2017, the mother filed a Form 2 application instigating proceedings for the recovery of what she alleges to be a child support debt. In the same application, pursuant to which she seeks a payment totalling $5,171, she seeks 14 separate orders for disclosure of documents by the father. That application was given a return date of today. The mother has filed an affidavit of service by a process server, asserting the Form 2 application was served on 5 August 2017. The father has not yet filed any response to that application but has indicated this morning that he intends to oppose it.

12I propose to make orders requiring the father to respond to that Form 2 application within a specific timeframe and to otherwise adjourn the application to the status hearing already listed before me on 26 September 2017. As already foreshadowed, I propose to deal with the father’s application for a s 11 certificate today, given that it raises issues central to the preparation of the parenting proceedings for trial.

13The parenting dispute has been ongoing for a considerable time. I have no difficulty in differentiating the relative priority to be afforded to the parenting case and the recently commenced child support enforcement application. I indicated to both parties that while it may well be possible for both matters to go to trial together, I do not intend to allow the parenting case to be in any sense derailed by the dispute about child support.

The law

14Section 11 of the Evidence Act 1906 (WA) is in the following terms:

(1)Whenever in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him, the judge may, if it appears to him expedient for the ends of justice that such person should be compelled to answer such question or interrogatory, tell such person that, if he answers such question or interrogatory, and other questions or interrogatories that may be put to him, in a satisfactory manner, he will grant him the certificate hereinafter mentioned.

(2)Thereupon such person shall no longer be entitled to refuse to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him; and thereafter if such person shall have given his evidence to the satisfaction of the judge, the judge shall give such person a certificate to the effect that he was called as a witness or interrogated in the said proceeding and that his evidence was required for the ends of justice, and was given to his satisfaction.

(2a)Where in a proceeding a person is given a certificate under subsection (2) in respect of any evidence, a statement made by him, as part of that evidence, in answer to a question or interrogatory is not admissible in evidence in criminal proceedings against the person other than on a prosecution for perjury committed in the proceeding.

(3)In subsections (1) and (2), judge does not include a justice of the peace when constituting the Magistrates Court or the Children’s Court, whether sitting alone or with another justice of the peace.

15The present application of the father seeks what might be described as a pre-emptive certificate pursuant to s 11. He seeks the protection of that certificate in relation to evidence in-chief, which he proposes to give in an as yet unfiled affidavit.

16There is Full Court authority for the proposition that a certificate pursuant to s 128 of the Evidence Act1995 (Cth) (“the Commonwealth Act”), which is broadly equivalent but not identical to s 11 of the State Act, can be given to cover evidence in-chief given by a party by way of affidavit.

17The Full Court of the Family Court took that view in Ferrall and McTaggart (trustees for Sapphire Trust) & Ors v Blyton (2000) FLC 93-054 (“Ferrall”). Subsequently however, in Cornwell v The Queen (2007) 231 CLR 260 albeit in the context of criminal proceedings, the High Court at paragraphs 111 to 113 raised the question of whether s 128 of the Evidence Act 1995 (NSW) (“the NSW Act”) applies where a witness sets out to adduce evidence in-chief revealing the commission of criminal offences.

18The High Court observed that the claim of privilege in those circumstances strains both the meaning of the phrase “objects to giving particular evidence” in s 128(1) of the NSW Act, (which is identical to s 128(1) of the Commonwealth Act) and the meaning of the expression “require the witness to give evidence” in s 128(5). While the High Court did not consider it necessary to finally determine that issue its observations, with respect, cast doubt on the view expressed by the Full Court of the Family Court in Ferrall (supra).

19The Commonwealth Act refers to a witness objecting to “giving particular evidence on a particular matter”. It is in the context of that wording that it has been contended that a certificate may be offered pursuant to that Act in respect of intended or actual evidence in-chief given voluntarily. Even then, as observed, the High Court has cast doubt on the proposition that a witness can be properly described as objecting to giving evidence in-chief when the decision as to whether or not to give that evidence is the witness’ to make.

20Along similar lines, the New South Wales Court of Appeal in Song v Ying (2010) 79 NSWLR 442 decided that a witness who was compellable by way of subpoena or other process may obtain the benefit of a certificate under s 128 of the NSW Act by virtue of that compulsion. However, the Court of Appeal considered that, when the parties gave evidence in answer to questions from their own counsel, the element of compulsion was not present.

21That approach found favour with Young J in a first instance decision in the Family Court of Australia in Aitken v Murphy [2013] FamCA 3. The Full Court of the Family Court in Jarvis v Pike (2013) FLC 93-565 found, consistently with Ferrall (supra), that a certificate under s 128 of the Commonwealth Act could be granted in respect of evidence in-chief to be given on affidavit. It does not appear however, that the Full Court in that case was referred by counsel either to Song v Ying (supra) or to the comments of the High Court in Cornwell (supra).

22It will be seen therefore, that there is potential for some uncertainty in relation to the question at least insofar as it applies to the Commonwealth Act. Nevertheless, were I determining an application pursuant to that Act, I would likely regard myself as being bound by the decision of the Full Court in Jarvis v Pike (supra). The present application however is brought by reference to the State Act.

23Section 11 of the State Act differs in important ways from s 128 of the Commonwealth Act. The difference is best illustrated by the first subsection of the respective provisions.

24Section 128(1) of the Commonwealth Act says:

This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or

(b)is liable to a civil penalty.

25In contrast, s 11(1) of the State Act is expressed to apply in circumstances where:

… in any proceeding any person called as a witness, or required to answer any interrogatory, declines to answer any question or interrogatory on the ground that his answer will criminate or tend to criminate him …

26The distinction is immediately apparent. The State Act is expressed in terms which are significantly different to those in the Commonwealth Act and which are less susceptible to an interpretation reading them as potentially applicable to evidence in chief. Section 11(1) refers to a person “called as a witness” or “required to answer any interrogatory”, importing the concept of compulsion as distinguished from the voluntary nature of evidence in-chief. That interpretation is reinforced by the requirement that the witness, before seeking the protection of the certificate, must “decline to answer any question or interrogatory” on the relevant ground.

27In my view, s 11 of State Act cannot apply to evidence in-chief voluntarily given, whether by affidavit or otherwise. For the purposes of determining the present application it is not necessary to consider whether a proper interpretation of some of the rules of court, including for example those in relation to financial statements might import an element of compulsion to give evidence in-chief in relation to particular matters and thereby potentially attract the protection of s 11.

The present application

28The father’s application seeks protection of a certificate pursuant to s 11 prospectively, that is, before the evidence has been given and when the proposed evidence in question is intended by him to be given entirely voluntarily as evidence in‑chief in the pursuit of the relief which he seeks. In my view it is not open for a certificate to be granted pursuant to s 11 of the State Act in those circumstances. That aspect of the father’s application will accordingly be dismissed.

29It is convenient to turn next to the issue of an updated report by the Single Expert Witness, Mr Cairns. The transcript of the hearing before her Honour Justice Duncanson on 30 March 2017, at which the father did not attend, indicates that the Independent Children’s Lawyer foreshadowed arranging prior to trial a conference of experts involving the psychologists assisting the parties and children on a therapeutic basis and the Single Expert Witness. The last report of Mr Cairns is dated 28 February 2017.

30The father’s affidavit sworn in support of his Form 2 application relates primarily to his application for a s 11 certificate. The only basis upon which he proposes that the Single Expert Witness should provide an updated report is predicated on the audio recordings in question being admitted into evidence. He does not suggest otherwise that an updated report is required.

31The appropriate course therefore, is to adjourn that aspect of the father’s application. It is a matter for him to now consider as to whether he still seeks that the audio recordings go into evidence notwithstanding the dismissal of his application for a certificate pursuant to s 11. As I do not know at this stage what decision he will make in that regard, it would be inappropriate to dismiss his application for an updated report.

32The father’s application also seeks an order that in the event he is unsuccessful in his application for a certificate pursuant to s 11, then in his words “all evidence is destroyed”. Of course the evidence in question, even were it described more particularly, is in the possession of the father and not the court. If by his application, the father is seeking the destruction by the court of the affidavit he has already filed, that application is clearly inappropriate for reasons which do not need to be articulated further.

33The mother in submissions today has raised the possibility that she may seek to have the audio recordings brought into evidence regardless of any decision the father might make in that regards. It is accordingly appropriate for me to make an order this morning restraining the husband from taking any steps to destroy or alter those recordings until further order. That will leave open to both the mother and the Independent Children’s Lawyer the option of seeking disclosure, or production of those recordings, whether or not the father seeks to put them into evidence by way of evidence in chief. Any ruling as to the relevance or admissibility of the recordings on either scenario is a matter for another day.

34Finally, the father seeks an extension of time within which to file his trial affidavit. He seeks 14 days from the determination of his application of a certificate pursuant to s 11. Given that he will now need to reconsider his position more generally, I propose to extend the relevant time by 21 days, rather than the 14 days sought. To avoid prejudice to the mother and ensure the readiness of the matter for trial, I propose to make orders which will facilitate the matter proceeding on an undefended basis if the father fails to file his trial affidavit material within the extended time granted, bearing in mind that his documents were due 14 days prior to the readiness hearing on 1 June 2017 and that he did not file even his present application until 27 July 2017.

I certify that the preceding [34] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate