Che & Don (No 4)

[2022] FedCFamC1F 403

Federal Circuit and Family Court of Australia

(DIVISION 1)

Che & Don (No 4) [2022] FedCFamC1F 403

File number:

CAC 600 of 2021

Judgment of:

GILL J

Date of judgment:

7 June 2022

Catchwords:

FAMILY LAW – ORDERS – Father seeking access to material in relation to previous order for provision of information regarding location of his missing child made under s 67M of the Family Law Act 1975 (Cth) – Application by father’s legal representation made pursuant to s 67P of the Family Law Act 1975 (Cth) to allow “officer of the court” access to material – Statutory interpretation of “officer of the court” narrowly defined and does not include a legal practitioner – Application refused.

Legislation:

Acts Interpretation Act 1901 (Cth) ss 21, 34AAA

Family Law Act 1975 (Cth) ss 67M, 67P

Judiciary Act 1903 (Cth) ss 40(5), 55B(8), 74 and 77D

Division:

Division 1 First Instance

Number of paragraphs:

13

Date of hearing:

20 May 2022

Place:

Canberra

Counsel for the Applicant:

Mr G Stagg

Solicitor for the Applicant:

Legal Aid, ACT

Counsel for the First Respondent:

Ms J Haughton

Solicitor for the First Respondent:

Mazengarb Family Lawyers

Solicitor for the Second Respondent:

Litigant in person

Solicitor for the Third Respondent:

Litigant in person

ORDERS

CAC 600 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CHE
Applicant

AND:

MR DON

First Respondent

MS TRACH

Second Respondent

MS HUYNH

Third Respondent

order made by:	GILL J
DATE OF ORDER:	7 JUNE 2022

THE COURT ORDERS THAT:

1.The application made by the father for access to material provided under the various information orders in this matter made pursuant to s 67M of the Family Law Act 1975 (Cth) is refused.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Che & Don has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J:

1. In this matter, a number of orders have been made pursuant to s 67M of the Family Law Act 1975 (Cth) (“the Act”) directing that certain persons provide information that they hold as to the child’s location. Pursuant to s 67P of the Act, the legal representatives of the applicant for those orders (the maternal grandmother) have been granted leave to have access to that material.

2. This judgment concerns an application made on behalf of the father in the proceedings to also be granted access to that material.

3. Section 67P the Act deals with the treatment of information provided pursuant to an order made under s 67M of the Act. Section 67P is in the following terms:

   67PInformation provided under location order not to be disclosed except to limited persons

   (1)Information provided to the Registry Manager of a court under a location order (including a Commonwealth information order) must not be disclosed by the Registry Manager, or by any other person who obtains the information (whether directly or indirectly and whether under this section or otherwise) because of the provision of the information to the Registry Manager, except to:

   (a)the Registry Manager of another court; or

   (b)an officer of the court, or of another court, for the purpose of that officer’s responsibilities or duties; or

   (c)a process‑server engaged by, or by an officer of, the court or another court; or

   (d)with the leave of the court that made the location order:

   (i)        the legal adviser of the applicant for the order; or

   (ii)       a process‑server engaged by that legal adviser; or

   (e)if a recovery order that consists of or includes an authorisation or direction described in paragraph 67Q(b) or (c) is in force—a person to whom the authorisation or direction is addressed; or

   (f)with the leave of the court that made the location order:

   (i)the Commonwealth central authority; or

   (ii)a central authority or a competent authority of a Convention country.

   Penalty:  120 penalty units.

   Note: For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914.

   (2)Nothing in paragraphs (1)(a) to (e) authorises the disclosure of information to the applicant for the location order.

   (3)       In paragraph (1)(f):

   central authority has the same meaning as in section 111CA.

   Commonwealth central authority has the same meaning as in section 111CA.

   competent authority has the same meaning as in section 111CA.

   Convention country has the same meaning as in section 111CA.

4. It may be observed that s 67P imposes tight restrictions on the treatment of the information provided pursuant to an order made under s 67M of the Act. For example, the applicant under such an order does not obtain access to the information, although, if granted leave, the legal representative for the applicant may have access. These restrictive controls on the information are buttressed by a civil penalty provision that applies a penalty of 120 penalty units for breach in relation to the restrictions for the provision of the material.

5. The father, or rather the father’s legal representatives, rely upon paragraph (b) which allows access to be given to an officer of the court.  It is argued that the legal representatives of the father fall within the definition of officer of the court, and accordingly should be granted access.

6. However, a narrower view of the term “officer of the court” should be taken than that urged by the legal representatives for the father. Rather than this being a reference to a legal practitioner admitted to practice, it is a reference to an officer performing functions within the courts and courts administration. To construe the provision otherwise would be to undermine the restrictions that are set out at paragraph (d) as on the argument posed by counsel for the father, the legal adviser for the applicant for the order would also fit under the description “officer of the court” and thereby, would not be required to obtain the leave to have access to the information that is a necessary precursor under paragraph (d). To construe the provision in the manner proposed by counsel for the father would defeat the operation of s 67P.

7. This conclusion should not be taken as criticism of the submission made by counsel for the father. That submission was made in the absence of any definition of officer of the court contained within the Act, or within the division. Other statutory provisions also undermine the construction pursued for the father.

8. Having recourse to the Acts Interpretation Act 1901 (Cth) (“the AIA”), it may be seen that s 21 of the AIA is in the following terms:

   21       Office etc. means office etc. of the Commonwealth

   (1)       In any Act:

   (a)references to any officer or office shall be construed as references to such officer or office in and for the Commonwealth; and

   (b)references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.

   (2)       In this section:

   office includes a position occupied by an APS employee.

   officer includes an APS employee.

9. It may be seen that the default position then, in the construction of legislation that refers to an officer, is that it relates to an officer in and for the Commonwealth, a definition that does not encompass a legal practitioner more generally. Such an understanding is given tangential support by s 34AAA of the AIA, which is in the following terms:

   34AAAExercise of powers etc. by holders etc. of offices or positions

   If an Act confers a power or function or imposes a duty on a person holding or occupying an office or position as such, then the power may be exercised or the function or duty must be performed by the person for the time being holding or occupying the office or position.

10. It may be taken then that s 67P of the Act is referring to the various officers of the court as they hold such offices, as referred to in s 34 AAA of the AIA, from time to time.

11. Some further support can also be given for the notion that the reference is not to legal practitioners by reference to the use of similar terms in the Judiciary Act 1903 (Cth). There, s 40(5) makes reference to a “proper officer of that court”, at s 55B(8) to a “proper officer of the Supreme Court”, to s 74 to a “proper officer of the court” and at s 77D(4) to an “officer of the High Court”. In their context, none of these can be taken to be a reference to a legal practitioner more generally, but rather to a person who holds a particular office within the court structure.

12. This means that the father’s application must be refused. 

13. It may be observed that s 67P of the Act, for whatever reason, imposes a highly restrictive regime for the dealing with information as to the whereabouts of a child.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       7 June 2022