Andrewson & Trudeau (No 2)
[2024] FedCFamC1F 764
•12 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Andrewson & Trudeau (No 2) [2024] FedCFamC1F 764
File number(s): BRC 11543 of 2020 Judgment of: BAUMANN J Date of judgment: 12 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where the Independent Children’s Lawyer issued a subpoena directed to the Director of Public Prosecutions seeking production of documents – Where the Director of Public Prosecutions has objected on the grounds of legal professional privilege and/or client legal privilege – Objection upheld Legislation: Family Law Act 1975 (Cth) Cases cited: Barker v Campbell (1983) 153 CLR
Director of Public Prosecutions (NSW) v Stanizzo [2010] NSWCA 12
Goldy & Goldy and Ors (2011) FAMCA 477
Hamilton v New South Wales [2016] NSWSC 1213
R v Bell; Ex parte Lees (1980) 146 CLR 141
R v TAV [2022] QCA 271
Division: Division 1 First Instance Number of paragraphs: 9 Date of last submission/s: 16 August 2024 Date of hearing: On the papers in chambers Place: Brisbane Solicitor for the Applicant: Damien Greer Lawyers Counsel for the Respondent: Mr J Linklater-Steele Solicitor for the Respondent: Mills Oakley Lawyers Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor Counsel for the Other: Mr G Cummings Solicitor for the Other: Office of the Director of Public Prosecutions ORDERS
BRC 11543 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ANDREWSON
Applicant
AND: MS TRUDEAU
Respondent
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Other
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
12 NOVEMBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the documents listed in the amended index marked as Annexure A to the written submissions filed on 16 August 2024, are subject to legal professional/client legal privilege and none of those documents nor copies of them should be produced to the parties.
2.That the additional documents produced to the Court on 16 August 2024, named Annexure B, shall be included in the sealed envelope pursuant to Order 1 hereof.
3.That the Director of Public Prosecutions shall be released from further compliance with the subpoena filed 20 February 2024.
4.That the Notice of Objection – Subpoena filed 2 July 2024 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andrewson & Trudeau has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J
On 2 July 2024, the Office of the Director of Public Prosecutions (“ODPP”) filed a Notice of Objection to a subpoena filed and served by the Independent Children’s Lawyer (“ICL”) in these proceedings.
The subpoena to produce sought the production of the entirety of the prosecution files in relation to five named individuals.
On 4 March 2024 copies of some documents in the possession of the ODPP were produced, apart from the documents for which privilege was claimed by the Director.
On 2 July 2024 I made orders which required the ODPP to file any submissions, in support of the Director’s objection, by 30 July 2024. They were filed late on 16 August 2024. Neither the mother or father have raised objection to the late filing of the written submissions.
Although the parties and the ICL were given leave to file written submissions in reply, none have done so – with the father expressly indicating he did not intend to file submissions.
The objection the ODPP seeks the following orders:
(a)The documents in the list set out at Annexure A to the written submissions are subject to legal professional/client legal privilege and none of these documents nor copies of them should be produced to the parties.
(b)The documents contained in a sealed envelope on 2 July 2024 and the further documents marked “Annexure B”, should remain unopened on the Court file, unless otherwise ordered.
(c)The Director be released from further compliance with the subpoena.
I have decided to make the orders, sought by the Director, broadly for the reasons which were advanced in the written submissions of the ODPP, which I summarise as follows:
(a)The father Mr Andrewson was indicted in mid-2023 on multiple criminal offences committed between 2016 and 2020 against his daughter, X, who was then under 16 years of age.
(b)It was ultimately decided that the prosecution did not have reasonable prospects of success and the prosecution of the father was discontinued, on advice which was based on available evidence.
(c)In reliance upon the authorities identified in the written submissions particularly: Barker v Campbell (1983) 153 CLR at [60]; R v Bell; Ex parte Lees (1980) 146 CLR 141; Hamilton v New South Wales [2016] NSWSC 1213; and Director of Public Prosecutions (NSW) v Stanizzo [2010] NSWCA 12; the ODPP says a claim of privilege can be asserted.
(d)In Goldy & Goldy and Ors (2011) FAMCA 477, in circumstances similar to those in this case, the ODPP’s claim for privilege was upheld.
(e)The ODPP, having previously provided a number of documents on 2 July 2024, in a sealed form, omitted to produce a number of memoranda relating to the reasonable prospects of success, and they are now in Annexure B.
(f)At paragraph 32 of the submissions the ODPP says:
In this case all of the documents for which privilege is claimed were created on a confidential basis in furtherance of criminal proceedings and remain confidential in the hands of the Director. This includes copies of letters sent. In each instance the letter was sent to a specific individual for prosecution related purposes and not the world large…
(g)The obligations of the prosecution were summarised by Nettle and Edelman JJ in HT v R (2019) 269 CLR 403 at [428.59] and requires that criminal proceedings are initiated, prosecuted or terminated upon a dispassionate assessment of the evidence – the submission of the ODPP at paragraph 33 with which I agree.
CONCLUSION
In these proceedings, the mother continues to press for a finding that the father is an unacceptable risk and at a trial, all available evidence should be produced. Prosecution related views, opinions and advice may not be admissible (R v TAV [2022] QCA 271) at [43]).
In the circumstances I uphold the claim of privilege.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 12 November 2024
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