Adams and Torino & Anor

[2014] FamCA 695

FAMILY COURT OF AUSTRALIA

ADAMS & TORINO AND ANOR [2014] FamCA 695

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where court previously gave leave to ICL to issue subpoenae - Where mother filed notices of objection to three subpoenae pursuant to rule 15.31 on the basis that absent any reasonable belief of the ICL as to the relevance of the material, the ICL ought not be permitted to inspect the documents; and the documents in part related to a child of the mother who is not directly the subject of the proceedings – Where mother seeking parenting orders for two of her three other children who are subject to these proceedings to live with her and the child who is not directly subject to these proceedings – Where there are allegations that one of the three children who are subject to the proceedings has sexually abused the child who is not subject to the these proceedings – Where court noted it was mindful that the first subpoenae addressed to the Department of Education related to a child not directly the subject of the proceedings, however was satisfied that such material is likely to be sufficiently relevant – Where court was satisfied the second subpoena addressed to the Department of Communities and Child Safety was relevant and noted that if there had been departmental intervention in relation to the child who is not directly the subject of the proceedings, it could not be contended that the court would not have any regard to such in the proceedings in relation to the care of the other children – Where the court was satisfied the third subpoena addressed to the Commissioner of Police was relevant to the proceedings and noted that insofar as the police investigation may still be ongoing, there had been no objection from the Commissioner to produce the material and that is would be for the Commissioner to make such objection not the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where mother objects to the ICL copying subpoena material on the basis that documents may be leaked to other parties – Where court noted it is well established that documents produced pursuant to discovery or subpoena are subject to implied undertakings and the breach of such was serious – Where court not satisfied there was a sufficient risk of the document being misused such that the ICL should not have leave to copy them.

Family Law Rules 2004 (Cth) r 15.31

APPLICANT: Ms Adams

1^st RESPONDENT: Mr Torino

2^nd RESPONDENT: Mr B

INDEPENDENT CHILDREN’S LAWYER: Mr Cameron

FILE NUMBER: BRC 1072 of 2010

DATE DELIVERED: 12 August 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 12 August 2014

REPRESENTATION

THE APPLICANT: In person

THE 1^ST RESPONDENT: In person

THE 2^ND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Mr Cameron

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER Jennifer Boulton Solicitor

Orders

1. The Independent Children's Lawyer is granted leave to inspect and copy documents produced by the Director-General, Department of Education in answer to subpoena served upon him or her and filed 17 July 2014.

1. The Independent Children's Lawyer is granted leave to inspect and copy documents produced by the Director-General, Department of Communities Child Safety in answer to any subpoena served upon him or her and filed 16 July 2014.

1. The Independent Children's Lawyer is granted leave to inspect and copy any documents produced by the Commissioner of Police Queensland in answer to any subpoena directed to him and filed 17 July 2014.

1. The further mention of this matter be adjourned to 09:45am, Tuesday 14 October 2014 in Brisbane, with the Independent Children’s Lawyer and the First Respondent appearing by way of video link to Cairns, and the Applicant and the Second Respondent appearing by way of telephone.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adams & Torino and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: BRC 1072 of 2010

Ms Adams

Applicant

And

Mr Torino

1^st Respondent

Mr B

2^nd Respondent

REASONS FOR JUDGMENT

1. On 9 July 2014 I gave leave to the Independent Children’s Lawyer to issue subpoenae directed towards the Department of Education, the Department of Communities, Child Safety and Disability Services, and the Queensland Department of Health, in terms contained within the orders made that day.  Pursuant to those orders, three subpoenae have indeed issued. 

2. It is appropriate to note that the subpoena addressed to the Commissioner of Police relates to documents pertaining to not only all three of the children the subject of these proceedings, but also the mother, and her child to another relationship, being C (the child), born in 2006.  The documents sought are listed within paragraphs (a) to (e) of annexure A to the subpoena.  However, the documents sought only relate to the period 1 February 2013 to present. 

3. In relation to the subpoena addressed to the Director-General to the Department of Communities and Child Safety, again it is the annexure which specifies the documents that are sought, and again the documents relate to not only the three children the subject of these proceedings, but also the mother and father and the child.  And again it is for the period of 1 February 2014 to present. 

4. Finally, the subpoena addressed to the Director-General of the Department of Education is in markedly different terms.  It only relates to material relating to an alleged assault of the child by one of the children the subject of these proceedings. 

5. The mother filed notices of objection to the three subpoenae pursuant to rule 15.31 of the Family Law Rules. In essence, the objections that she makes as detailed in the notices of objection are the same to all three subpoenae.

6. In her oral submissions before me, the mother really distilled her opposition to two bases:  firstly, that she says the issue of the subpoenae is nothing more than a fishing expedition, and particularly asserts that whatever be the suspicions of the Independent Children’s Lawyer, that is to be distinguished from a belief as to any relevance of the material, and on that basis she says that, absent any reasonable belief being deposed to by the Independent Children’s Lawyer as to the relevance of the material, she ought not be permitted to inspect the documents.  The second basis upon which the mother objects to the subpoenaed documents being inspected by the Independent Children’s Lawyer is that, in part, they relate to the child the child, who is, of course, not directly the subject of these proceedings. 

7. Mr Cameron, who appears as counsel for the Independent Children’s Lawyer, asserts that by virtue of the parenting orders which the mother seeks – namely, that the two youngest children the subject of these proceedings live with her – and the fact that the child lives with her, necessarily, material relating to the child is potentially relevant to these proceedings because records held by the relevant agencies may either shed light on the mother’s parenting capacities, or at least the risk of harm to children in her care, and further, that the question of the sexual assault or alleged sexual assault of the child by one of the three children the subject of these proceedings is inevitably a significant question in these proceedings. 

8. He further says that by virtue of the role of the Independent Children’s Lawyer, that person is not the children’s lawyer per se, but rather has an independent role akin to counsel assisting an inquiry, and that in proceedings such as this, which are quasi-inquisitorial in nature, the role of the Independent Children’s Lawyer is a significant one, particularly in relation to the gathering of relevant, or potentially relevant, material for consideration by the relevant experts and the Court. 

9. It will be appreciated that whilst the issue of the child’s right to privacy in relation to records pertaining to him is a live factor, he is not a party to these proceedings.  Nonetheless, the mother is seeking orders which would see the child cohabiting with the two youngest children the subject of these proceedings. 

10. Dealing with the subpoenae individually and turning firstly to the subpoena addressed to the Director-General of the Department of Education, the scope of the records sought to be produced and inspected pursuant to that subpoena is narrow, relating only to any records kept by the Department relating to the alleged sexual assault of the child.  In my view, those records are potentially relevant to issues in these proceedings, and whilst I am mindful that they relate to a child not directly the subject of these proceedings, nonetheless I am satisfied that the material is likely to be sufficiently relevant as to justify any incursion in to such rights of the child as may be affected by inspection.  There will therefore be an order permitting the Independent Children’s Lawyer to inspect any documents produced pursuant to the subpoena addressed to the Director-General, Department of Education. 

11. I then turn to the subpoena addressed to the Director-General of the Department of Communities and Child Safety.  It will be appreciated, that this is broader in scope than the Department of Education subpoena.  Nonetheless I am satisfied that the documents sought under that subpoena are sufficiently relevant to these proceedings to justify inspection by the Independent Children’s Lawyer, and specifically insofar as they relate to records held relating to the child, I am satisfied that they are relevant.

12. As Mr Cameron said, it could not possibly be contended that, if there has been Departmental intervention in relation to the child, that that is a matter that the Court would not have any regard to in proceedings in relation to the care of other children proposed to be placed in the same care as the child.  There will therefore be an order permitting the Independent Children’s Lawyer to inspect documents produced pursuant to the subpoena to the Department of Communities and Child Safety. 

13. I then turn finally to the subpoena addressed to the Commissioner of Police.  That is in terms somewhat similar to the subpoena addressed to the Department of Communities and Child Safety.  I am satisfied again that the issues listed in the annexure to the subpoena are issues that are relevant to these proceedings.  Insofar as they deal with the child, I am satisfied that they are sufficiently relevant to nonetheless have documents pertaining to the child disclosed to the Independent Children’s Lawyer even though they may contain matters confidential to the child.  Insofar as the police investigation may still be ongoing and not concluded, I note that there has been no objection from the Commissioner to the production of the material on that basis.  It is for the Commissioner to make any such objection, not the mother, and I place little weight upon the fact that the investigation is ongoing.  There will therefore also be an order permitting the Independent Children’s Lawyer to inspect documents produced pursuant to the subpoena addressed to the Commissioner of Police. 

    RECORDED   :   NOT TRANSCRIBED

14. The Independent Children’s Lawyer seeks, in addition to the orders which I have just made permitting inspection of certain documents, the leave of the Court to copy such documents.  She does so on the basis that relevant documents will need to be provided to experts.  The leave to copy is opposed by the mother on the basis that, in the past, she asserts that there have been leaking of documents, it appears, to other parties, whether deliberate or otherwise.  Plainly, it would be an unwieldy event in the course of preparing expert reports if experts had to physically attend the Court to inspect documents. 

15. It is well-established that documents produced pursuant to discovery or subpoena are subject to implied undertakings.  The Court would view the breach of those undertakings as a serious matter.  That is the appropriate remedy in the event that there is a breach of the implied undertaking.  I am not satisfied that there is a sufficient risk of the documents being misused such that the Independent Children’s Lawyer should not have leave to copy them.  There will therefore be an order that the Independent Children’s Lawyer have leave to copy the documents produced pursuant to the three subpoenae the subject of my earlier reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 August 2014.

Associate:

Date:  12 August 2014