Fekete v Child Support Registrar [2016] FamCAFC 145
The applicant filed a Notice to Produce, seeking production of “…a Certified Copy of the Proclamation certificate of the Child Support (Registration and Collection) Act 1988 as well as certified copies of all Proclamation certificates for any and all amendments made to the Child Support (Registration and Collection) Act 1988… a Certified Copy of the Referendum results that granted the Parliament of the Commonwealth of Australia the authority to use the “Great seal of Australia” as opposed to the original seal of the Commonwealth of Australia, as was used on the Commonwealth of Australia Constitution Act 1900 (UK)… a Certified Copy of the Proclamation certificate of the Federal Court Act 1976 as well as certified copies of all Proclamation certificates for any and all amendments made to Federal Court Act 1976.” When His Honour asked the Applicant, “What are the notices to produce about?” The following exchange occurred:
MR FEKETE: The notices to produce were for the applicant to prove the validity of the Child Support Act – a certified copy of the proclamation. She was – – –
HIS HONOUR: Sir, it’s been to the High Court. Been dealt with. You’re not engaging me in that circus. The High Court has already authoritatively ruled on the validity of the Child Support legislation.
MR FEKETE: Your Honour, I’ve asked for the proof that that Child Support Act is validated.
HIS HONOUR: Go and get it yourself, sir. The High Court has dealt with it. So I will be striking out the notices to produce. I will be fixing it for hearing. How long does it need?
MR FEKETE: Fine. Why is it that I’m not allowed to have proof of the Act they’re relying on?
HIS HONOUR: Sir, go and get it.
MR FEKETE: It’s not up to me to provide that proof. It’s up – – –
HIS HONOUR: Sir – – –
MR FEKETE: – – – to them. They’re – – –
HIS HONOUR: – – – yes, it is. You want to put it into issue you produce evidence that contra-agitates against its validity, because I can assure you I’ve read the High Court’s decisions about it, I’ve read the relevant government gazettes. The Act is in force and operation. That issue has already been dealt with by the High Court. You should go and find that case and read it.
MR FEKETE: There’s no proclamation certificate to show the validity of it.
HIS HONOUR: Sir, I’m not entertaining the issue any further. It’s dealt with by the High Court.…”
In pointing out that the High Court has upheld the validity of the Child Support legislation, no doubt his Honour was referring to the Court’s decision in Luton v Lessels (2002) 210 CLR 333.
The well-known proposition that the burden of proof falls on the person asserting the claim does not help the Applicant because that relates to the burden of proving the elements of the offence or the cause of action and not the law itself.
Rule 15A.17 of the FCC Rules provides:
Notice to produce
(1) A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2) Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.
As the Respondent correctly pointed out, there is no evidence that any of the documents were at any time in the possession, custody or control of the Respondent. The obligation to produce is limited to such documents. There is no evidence that the offices of “Secretary of the State of New South Wales” or the “Secretary of the Commonwealth of Australia” exist or that they have power to certify copies of proclamation certificates. As far as paragraphs 2 and 3 of the 25 November 2015 Notice to Produce are concerned, there is no suggestion that there was a referendum that granted the Commonwealth of Australia the authority to use the Great Seal of Australia or that the Federal Court Act had any relevance.”
Click to access fekete-v-child-support-registrar-2016-famcafc-14.pdf
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