Burmingham and Cod

[2007] FamCA 224

FAMILY COURT OF AUSTRALIA

BURMINGHAM & COD [2007] FamCA 224

FAMILY LAW - EX TEMPORE REASONS – SUBPOENA – INJUNCTION - father convicted of murder and awaiting the outcome of an application for leave to appeal his sentence – order that the parties be restrained from providing a copy of any documents produced to any other person.

Family Law Act 1975 (Cth)

APPLICANT: Ms Burmingham

RESPONDENT: Mr Cod

FILE NUMBER: ADF 1331 of 2001

DATE DELIVERED: 23 February 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms V M West

SOLICITOR FOR THE APPLICANT: Ian Charman & Associates

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR DEPARTMENT OF HEALTH: Ms C Aglieco

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Burmingham and Cod.

Orders

1. That leave be granted to all parties and their legal representatives in these proceedings and the Family Consultant who is to report under Section 62G(2) of the Family Law Act to copy the documents save and except the DVD produced pursuant to the subpoena issued by the mother on 7 February 2007 to Dr D, Child Protection Services of a city Hospital.

2. That the parties and their legal representatives in these proceedings are restrained and an injunction granted restraining each of them from discussing with or showing the child any documents produced pursuant to said subpoena or from providing a copy of them to any other person.

3. That at the conclusion of the proceedings in this court all copies of any documents produced pursuant to the said subpoena be returned forthwith to the Registry Manager of the Family Court of Australia at Adelaide for the purpose of destruction.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1331  of 2001

Ms Burmingham

Applicant

And

Mr Cod

Respondent

EX TEMPORE REASONS

1. In this matter a subpoena was issued by the mother on 7 February 2007 to Dr  D, Child Protection Service, of a city Hospital, seeking the production of documents described as "all files, notes, correspondence, memoranda, reports, records of interviews, videos of interviews and documents relating to [the child], born [in] January 1999".

2. That subpoena was returnable on 19 February, and it came before Registrar McMahon.  There was a note apparently on the documents produced by Dr D objecting to the documents being copied but no objection to them being viewed by the parties.  Registrar McMahon made an order giving all parties and their representatives and the Family Consultant leave to inspect the documents produced and the question of copying of the documents was adjourned to this hearing.

3. Dr D has been represented today, and I have heard submissions in support of his objection to the documents being copied.  As I understand it, it relates to a concern Dr D has with the information in the file being disseminated beyond the parties in this case and also being used by the parties or others to question the child and remind the child of these past events.  Dr D is obviously concerned, and I echo the concern if that was to be the case about any impact upon the child of inappropriate use of these documents.

4. However, as has been put to me in submissions, there are orders that I can make which restrict the use of these documents.  The difficulty, though, is it would be impossible to police any order preventing, for example, a party speaking to the child about the documents.  That said, I would still want to make an order about that, and even though Mrs West has put to me that her client has no intention of speaking to the child about the document and the father has said to me that he has no intention of doing that either.  Given Dr D's concerns about it, even though there may be an element of doubt as to the enforceability of such an order, if I am going to allow copying of these documents, such an order should be made so that everyone is on notice about it. 

5. Dr D has suggested through his representative that the documents be kept in the controlled environment of the Family Court Registries, even to the extent of them being sent to the Brisbane Registry because the mother resides in Queensland.

6. Again, I appreciate entirely Dr D's point and I share his concerns.  However, if I am prepared to allow the copying of the documents I think it would be unwieldy to have the documents retained and then moved between each Registry, and I consider that I can make orders sufficient to cover Dr D's concerns about the use of the documents.  What I have to balance is the need for the parties to have access to these documents to properly prepare their respective cases in the matter before the court, whilst bearing in mind the interests of the child.

7. Thus, I propose to allow copying.  I do not need to make another order about inspecting though, because Registrar McMahon has already made that order.  Indeed, I am told that Mr Charman, who is the mother's solicitor, has already inspected the documents.  I am also told, and confirmed by the father, that his legal team in his criminal proceedings have had access to this file and have viewed some or all of the documents.  I note also there is a DVD amongst the documents produced, and it seems, although no‑one is entirely sure, that that is the same video which was shown to White J in the Supreme Court during the criminal trial last year.

8. The father tells me that he has not personally seen any of the documents in the file, nor has he seen the video, but he confirms, as I say, that his legal team has had access to the file and presumably has inspected some of the documents.

9. The other comment that I will make is that there are of course criminal proceedings happening at the same time as these Family Court proceedings, and these documents would be relevant to both sets of proceedings.  However, I have indicated to the father, and he says that he accepts and understands what I am saying, that any orders made in this court for inspection and copying are not orders which would allow these documents to be accessed in his criminal proceedings by his legal team.  My reason for that is, obviously, this court can control the use of the documents but this court cannot control what happens in the criminal proceedings.  However, if there is a need to access the very same documents, appropriate orders can and should be made for that in the Supreme Court so that that court then controls the dissemination of those documents.

I certify that the preceding
9 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 23^rd day of February 2007.

……………………………………….
Associate