Am v Department of Community Sevices (DOCS); ex parte

[2008] NSWDC 16

Reported Decision: 6 DCLR (NSW) 329

District Court

CITATION:	AM v Department of Community Sevices (DOCS); ex parte Nationwide News Pty Ltd [2008] NSWDC 16
HEARING DATE(S):	11 February 2008
JUDGMENT DATE:	11 February 2008
EX TEMPORE JUDGMENT DATE:	11 February 2008
JURISDICTION:	Civil Jurisdiction (Child Care Appeal)
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	I exclude any reporters, including reporters from Nationwide News, from remaining in court during the hearing of these proceedings.
CATCHWORDS:	OPEN JUSTICE - Child Care Appeal - application to allow newspaper reporters access to the proceedings - exercise of discretion under s 104C of the Child Care Act where the newspaper had earlier published an article likely to lead to the identification of the children including a photograph of the mother and children, with pixelated faces - the safety, welfare and well-being of the young persons must be the paramount consideration, displacing the common law principle of open justice - court not satisfied that further similar publications were not likely to re-occur - court therefore closed to the media
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998: s 9(a), s 104C, s 105
CASES CITED:	John Fairfax & Sons Ltd v Police Tribunal of New South Wales [1986] 5 NSWLR 465 at p 476 R v LMW [1999] NSWSC 1111
PARTIES:	AM (Appellant) Department of Community Services (NSW) (Respondent) Nationwide News Pty Ltd (Applicant)
FILE NUMBER(S):	2146/07
COUNSEL:	Mr T Maltz (for Nationwide News Pty Ltd) Ms A Gibbons (for the mother) Mr Crompton (for the Department) Ms E Lawson (for the 6 younger children) Mr Parkinson (for the eldest child)
SOLICITORS:	Blake Dawson (for Nationwide News Pty Ltd) Crown Solicitor (for the Department) Legal Aid Commission (for the children)

JUDGMENT

Application to allow Nationwide News Pty Ltd reporters access to proceedings

HIS HONOUR:
(1) The substantive proceedings involve a child care appeal brought by the mother of seven children, seeking their restoration under the Care Act (the "Children and Young Persons (Care and Protection) Act 1998"). Those proceedings are listed before me for determination over the course of today and the next four days.

(2) An issue has arisen for my determination at the outset. That issue is whether I should exclude the media, specifically reporters from Nationwide News Pty Ltd, from remaining in court during the hearing. Such reporters are entitled to enter and remain in court during the hearing unless this court otherwise directs: s 104C of the Care Act.

(3) For reasons of procedural history, that issue has arisen for determination at the commencement of the hearing proper and not by way of a prior interlocutory hearing. I do not have the time to give a detailed and deeply considered set of reasons, and it seems to me more important that the substantive proceedings proceed as soon as possible. I will therefore give the following short extempore reasons.

(4) Each of the parties to the substantive proceedings asks me to exercise my discretion under s 104C to exclude reporters from the applicant newspaper from remaining in court during the hearing.

(5) In the normal course of events, I would be disposed to refuse that application such as to allow reporters from the newspaper to remain in court on the basis that the provisions of s 105 of the Care Act are sufficient protection for the children the subject of the current proceedings: R v LMW [1999] NSWSC 1111. Under the common law principles of open justice, the balance would lie in favour of the newspaper.

(6) However, the applicant newspaper published an article on 18 December 2007 (exhibit 1) which, in my view, raises a basis for the consideration of the exercise of my discretion under s 104C.

(7) That article, to some extent, is of a generic nature which might only be said to be descriptive of many applicants in child care appeals. There are, however, some aspects of it which go beyond a generic description and are such as to be likely to lead to identification of the children the subject of the proceedings. The worst such piece of material is the photograph of the children. Notwithstanding that their faces have been pixelated, it seems to me that this photograph could be described as having been over the top.

(8) I am satisfied, therefore, that the article included information and material likely to lead to the identification of the children the subject of these proceedings.

(9) Furthermore, there is evidence that the publication did in fact lead to their identification, and not just to "insiders", as was submitted by counsel for the applicant newspaper.

(10) Section 9(a) of the Care Act provides as follows:
"The principles to be applied in the administration of this Act are as follows:
(a) In all actions and decisions in the administration of this Act (whether by legal or
administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents."
It was submitted firstly that s 9(a) does not apply in relation to decisions to be taken under s 104C and s 105. I disagree with that submission. In my view, the section applies to all decisions, including decisions in this court of a procedural nature, such as the present application.

(11) It was also submitted by the newspaper that s 9 does not displace common law principles, which here might be described as the open justice principle. I cannot accept that as a proposition either, as it seems to me that I am bound to apply the principles of s 9 in relation to the determination of the present dispute. In that sense, it seems to me that s 9 does exactly what is contemplated in John Fairfax & Sons Ltd v Police Tribunal of New South Wales [1986] 5 NSWLR 465 at p 476 at G:
"The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule.”
It is trite law that a statutory provision should only be interpreted such as to modify the common law where that intention is express and clear. In my view, s 9 is express and clear, and to that extent the common law principle of open justice is secondary to the principles in s 9(a).

(12) That being the case, the exercise of my discretion under s 104C must be informed by the paramount concern; namely, the safety, welfare and wellbeing of these children.

(13) There is material before me (summarised in Ms Lawson's submissions) the combined effect of which satisfies me that the publication of articles such as that in Exhibit 1, which identify these children, including to the children themselves, will have a tendency to detrimentally affect their safety, welfare and wellbeing.

(14) The issue thus becomes one of the likelihood of this newspaper publishing further articles which have such a clear likelihood as to the identification of the children such that it makes it necessary to exclude its reporters from this hearing. In this regard, it was submitted that s 105 of itself was sufficient protection. I am not so satisfied, in this case, and that would be tantamount to shutting the stable door after the horse has bolted.

(15) Nothing I have heard today yet satisfies me that this sort of publication is not likely to re-occur. However, in the interests of a balancing exercise and applying the principle of open justice to the extent that it applies subject to s 9(a), I would be prepared to allow this newspaper to come back with some evidence which might convince me that it would be appropriate for me to be satisfied that, with acceptable undertakings, there could be a basis upon which I might allow its reporters to remain in court during the hearing.

(16) For the moment, however, in the exercise of my discretion under s 104C of the Care Act, I exclude any reporters, including reporters from Nationwide News, from remaining in court during the hearing of these proceedings.