CROSBY and CROSBY

[2020] FCWA 120

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CROSBY and CROSBY [2020] FCWA 120

CORAM: SUTHERLAND CJ

HEARD: 15 JULY 2020

DELIVERED : 17 JULY 2020

FILE NO/S: PTW 297 of 2016

BETWEEN: MR CROSBY

Applicant

AND

MRS CROSBY

Respondent

Catchwords:

PUBLICATION ORDER - Application to publish redacted single expert witness report - Consideration of s 121 of the Family Law Act 1975 (Cth) - Held in public interest for publication order to be made of limited extracts of the report only - Redacted (anonymised) version of the judgment to be published.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Single Expert Witness	:	Self Represented Litigant

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant
Single Expert Witness	:	Self Represented Litigant

Case(s) referred to in decision(s):

AH v SS (2005) 194 FLR 111
Albert & Plowman [2020] FamCAFC 23
Hearne v Street (2008) 235 CLR 125
Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308
Seven News (Operations) Limited & Cockman (2018) FLC 93-842
Western Australian Newspapers Ltd and Channel 7 Perth Pty Ltd and Cuzens (2016) FLC 93-690

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crosby and Crosby has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Introduction:

1[Mr Crosby] (“the father”) and [Mrs Crosby] (“the mother”) were parties to proceedings in this court relating to the parenting arrangements for their two very young children. To the parties’ credit, they were able to resolve the parenting proceedings without a trial, and final orders were made by consent on 30 July 2019.

2During the proceedings [Expert A], a clinical psychologist registrar, was appointed by the court to act as single expert and prepare a report responding to specific terms of reference agreed to by the parties and the Independent Children’s Lawyer (“ICL”). Expert A published [their] report on 16 May 2019 (the “Report”), and it was filed with the court shortly thereafter.[1]

[1] The report was verified by an affidavit affirmed by Expert A on 24 May 2019 and filed that same day.

3The father now seeks permission to release the Report to “any Federal Member of Parliament (“members of Parliament”) and to the Joint Select Committee on Australia’s Family Law System (the “Committee”)”.[2] The father’s initial position was that the Report would be “redacted of all personal identifying material prior to release”. However, the father later amended his position and instead proposed the Report be redacted to “minimise” identifying information.

Brief history of the family law proceedings:

[2] Father’s Form 2 application filed 18 February 2020.

4The father commenced the parenting proceedings in January 2016, seeking, inter alia, a final order that the two children (who were [both below the age of two]) live with each of the parties on an equal shared care basis. The father’s position was that the mother had been the primary carer of the children before the parties’ separation and the children had continued to live with the mother after separation. The mother filed her responding documents in February 2016, seeking that the children live with her and spend defined time with the father.

5On 27 April 2016, the matter came before the court and orders were made (among others) programming the matter to trial, including listing a readiness hearing on 25 January 2017 (which was later brought forward to 21 December 2016).

6In June 2016, the father discontinued his application for final orders. The mother’s application remained afoot. In November 2016, the father filed a fresh application for final orders to re-engage in the proceedings.

7On 1 December 2016, the father filed an interim application seeking to have the readiness hearing (which was at that time listed for 21 December 2016) adjourned through to March 2017. The father’s application was heard on 21 December 2016, and a further readiness hearing was listed on 22 March 2017.

8Neither the father nor the mother filed their trial materials prior to the readiness hearing. As a result, the Registrar conducting the readiness hearing adjourned the proceedings generally and referred the file to the presiding Magistrate.

9On 24 March 2017, the father filed a further interim application, seeking various orders, including for the appointment of a single expert to prepare a report in relation to the family.

10For reasons that are not relevant to my determination of the father’s present application, both parties discontinued their respective applications for final parenting orders on 28 June 2017, and the proceedings thereby came to an end.

11On 5 July 2018, the mother commenced fresh parenting proceedings, including seeking final and interim orders that the children live with her and spend defined time with the father. By this time, the two children were then [both below the age of five]. The father filed his court documents on 6 July 2018, including seeking final orders for the children to live with the parties in an equal shared care arrangement, and interim orders for the children to live with him and spend supervised defined time with the mother.

12The matter came before the court on 10 July 2018. On that occasion, interim orders were made by consent for the children to live with the mother and spend time with the father each week from 9am Fridays to 9am Sundays. Orders were also made for the children to be independently represented by an ICL. The matter was otherwise programmed to trial, and for that purpose a readiness hearing was listed on 4 December 2018.

13On 25 November 2018, the court received a letter from the ICL, advising that the parties had participated in a Legal Aid WA Dispute Resolution Conference and were able to agree limited issues, including to vacate the readiness hearing and have it relisted to not before April 2019. Orders were made by consent on 27 November 2018 in terms of a Minute signed by the parties and the ICL, and a further readiness hearing was listed on 30 July 2019. The consent orders provided for a further extension of the father’s time with the children, including on one day during the week from 9am until 3pm and the specific arrangements for the Christmas festive period each year.

14On 15 February 2019, orders were made by consent appointing Expert A to prepare a report in response to agreed terms of reference. As noted above, Expert A completed [their] Report on 16 May 2019, and it was filed with the court on 24 May 2019.

15In [the] Report, amongst other things, Expert A set out:

a)at pages 2 and 3 of the Report, under the heading “Qualification and Experience of Single Expert”, [their professional qualifications and work history];

b)at pages 3 and 4 of the Report, under the headings “Statement of Facts”, “General Methodology” and “Statement of Non-Confidentiality”, the general methodology adopted by Expert A for the purposes of the Report;

c)at pages 4 and 5 of the Report under the heading “Literature and Other Material Relied Upon”, set out the social science literature that Expert A considered for the purposes of the Report;

d)at paragraphs 4 to 7 inclusive on pages 5 and 6 of the Report, the assessment methodology adopted by Expert A for the purposes of the Report, including details of the personality assessments undertaken by the parties, interviews with the parties and with the children, and the observation sessions with the children and each of the parents.

16In the Report, Expert A extensively canvassed: (1) the parties’ relevant history, including various allegations made by each party against the other; (2) matters arising from Expert A’s interviews with the parties and the children and Expert A’s observations of the children with each of their parents. Expert A then addressed the specific terms of reference, and concluded the Report by recommending that the children continue to live with the mother and spend time with the father in accordance with the existing consent orders. Expert A did not recommend an immediate equal shared care arrangement, as sought by the father, and instead recommended a gradual increase in the children’s time with the father, in a manner that was age and developmentally appropriate for the children from time to time.

17There was nothing on the court file to suggest that any of the parties asked Expert A any questions about the Report pursuant to Rule 15.65 of the Family Law Rules 2004 (Cth).

18The matter did not proceed to a defended trial. At the readiness hearing on 30 July 2019, the parties and the ICL handed up a signed Minute setting out their final agreement in relation to parenting matters. In summary, the Minute provided for the children to continue to live with the mother and spend time with the father, in terms very similar to their previously agreed interim arrangements. Final orders were made in terms of the Minute the same day. Relevantly, the Minute contained the following notation:

To the extent that she can, the Mother neither consents nor opposes any application made by the Father for the release of the Single Expert Witness Report to AHPRA but has no concern about her confidential details (detailed in the Single Expert Witness report) being released to AHPRA.

19On 26 August 2019, the father filed an application seeking that he be at liberty to release the Report to the Australian Health Practitioners’ Regulatory Authority (“AHPRA”) and any other relevant authority. By the time the matter came before the court on 5 November 2019, the father had not served the mother with a copy of his application. He was ordered to do so, and the proceedings were adjourned for further hearing to 9 December 2019. At the further hearing, an order was made permitting the father to release the Report only to AHPRA.

20For the purposes of this hearing, there was no evidence as to what, if any, investigations or disciplinary action AHPRA has taken in relation to any complaint made by the father about the Report.

The current application:

21On 18 February 2020, the father filed the application presently before the court, together with a supporting affidavit. That same day I made a direction that the father was to also serve a copy of those documents on Expert A.

22On 5 March 2020, the father filed an affidavit and acknowledgment of service, confirming that his application and affidavit had been served on the mother.

23The father’s affidavit set out his concerns in relation to the Report. In summary, the father complained that:

a)Expert A observed the parties with the children at a park in close proximity to Expert A’s office, rather than in the parties’ respective homes.

b)Expert A only interviewed each party once, and did not conduct follow-up interviews. As a result, Expert A was not able to cross-reference and discuss information with each party as provided by the other.

c)The literature cited by Expert A was “very limited”, and Expert A failed to cite relevant literature, of which the father gave examples. The father also asserted that one academic work cited by Expert A had been contradicted by a “recent consensus report”. In particular, the father asserted that by failing to reference certain studies in [the] report, Expert A failed to comply with certain items of the Australian Psychological Society Code of Ethics. However, I observe that aside from the father’s general assertion, there was no cogent evidence from which I could conclude that: (1) the father had the requisite professional qualifications to be able to assess whether Expert A had failed to comply with the Code of Ethics; or that (2) the Australian Psychological Society, AHPRA or any other relevant professional organisation agreed with the father’s assertion in this regard.

24As to why the father wished to provide a copy of the Report to members of Parliament and the Committee, the father deposed to the following:

[6]Members of Federal Parliament legislate laws for the Family Court to follow, with Single Expert reports now a major tool in the Family Law System, Federal Members need to understand how these reports work and are prepared. By understanding these reports and their formulation Federal Members will be able to create a framework to ensure they are prepared in a manner that is in the best interests of Families and Children.

[7]Federal Members and the Joint Select Committee on Australia’s family Law System do not need personal identifying information to assess the process single experts use to create their reports. All personal information could be redacted from the report prior to release.

25The father deposed in his affidavit at [5] that the “mother has noted that she neither consents nor opposes [the] application for release as indicated on the minute of consent presented to the court on 30 July 2019”. That assertion was not correct, given the mother’s non‑opposition related specifically to provision of the Report to AHPRA.

26By the time of the hearing on 16 March 2020, the father had not served the application on Expert A and he had not provided to the court a redacted version of the Report that he proposed be provided to members of Parliament and the Committee.

27At the hearing on 16 March 2020, the father appeared in person. Neither the mother nor Expert A attended. The father again confirmed that he proposed to anonymise the Report. I accordingly made orders: (1) requiring the father to serve Expert A with his application; (2) requiring the father to file and serve a copy of the Report which clearly identified the proposed redactions; (3) making further procedural orders to enable the mother and Expert A to file responding documents, in the event they opposed the father’s application; and (4) adjourning the matter for further hearing on 5 May 2020.

28The father filed a copy of the Report with the proposed redactions on 23 March 2020. The redacted Report contained material that still clearly identified Expert A, including [their] name, specific qualifications and work history. In addition, the redacted Report set out the parties’ relevant history, with minimal redactions.[3] The redacted Report still included:

a)Details of both the mother’s and father’s countries of origin;

b)Detailed information in relation to each party’s respective family of origin;

c)Detailed information in relation to each party’s educational history and work history, including in the case of the father, details as to where the father currently worked;

d)Detailed information in relation to the parties’ relationship history, including of how the parties first met and formed a relationship whilst in a third named country;

b)Detailed information in relation to the parties’ conflictual relationship, including of serious allegations made by each party about the other, including but not limited to family violence and sexually inappropriate / indecent behaviour.

[3] Although it was likely to have been unintended, the redacted Report, at paragraph 28, included details of the father’s Christian name.

29Expert A sent an email to the court on 5 May 2020, which effectively contained [their] written submissions. Expert A opposed the orders sought by the father. In summary, Expert A submitted that when [they] consented to act as the single expert, it was on the basis that the Report would be used for the purposes of the Family Court proceedings. Expert A was concerned that the father now sought to use the Report for a collateral purpose, particularly in circumstances where:

a)The proposed redacted Report still clearly identified Expert A.

b)The father appeared to be critical of the Report, but in circumstances where the Report was “untested”, in that after its publication, the parties agreed to resolve the court proceedings by way of final consent orders. Had the matter proceeded to a defended trial, then the father would have had the opportunity to “test” the Report by cross-examining Expert A about any aspects of the Report he did not agree with.

c)It would be unfair if the Report were viewed in isolation and without the reader also having an understanding of the supporting documents that were taken into account in the preparation of the report (including the parties’ respective affidavits and subpoenaed documents).

d)It was still open to the father to make a written submission to members of Parliament and the Committee about his experiences and views of the family law proceedings without providing the actual Report.

30At the next hearing on 5 May 2020, the father was given a further opportunity to anonymise the Report. I accordingly made an order that he file and serve a final redacted version of the Report he proposed be published, together with any written submissions he intended to rely upon. The matter was otherwise adjourned for further hearing on 15 July 2020.

31On 14 May 2020, the father filed the final redacted Report that he proposed be published. On 26 June 2020, the father filed an affidavit effectively containing his submissions in support of his application and annexing a further copy of the final redacted Report that he proposed be published. The document now redacted Expert A’s name, but still contained information regarding Expert A’s specific professional qualifications and work history. It also continued to include all the personal information in relation to the mother and the father as set out at paragraph 28 above.

32In summary, the father submitted that orders be made as sought by him for the following reasons:

a)The final redacted Report “minimised” the identification of Expert A, but [their] specific professional qualifications and work history could not effectively be redacted due to the nature of the report.

b)Having regard to the Harman principle, it could not be said that Expert A was “compelled” to produce the report, as [they were] engaged as a single expert witness and paid for [their] services, in circumstances where [they] could have declined the appointment. [The father presumably made this submission on the basis that the court found that s 121 of the Act did not apply].

c)If Expert A had concerns about [their] own confidentiality being maintained, then [they] had the choice to decline the appointment. [The father presumably also made this submission on the basis that the court found that s 121 of the Act did not apply].

d)Releasing the final redacted Report to members of Parliament will potentially highlight the current deficiencies in the delivery of single expert reports and possibly allow future expert witnesses to be more accountable, and strive for better, more comprehensive reports.

e)The father acknowledged Expert A’s concerns about the Report being viewed in isolation and conceded that if his sole purpose in seeking publication was to test the “validity” of the Report, then it would be inappropriate. However, the father submitted that his purpose in seeking the publication of the final redacted Report was to “highlight issues generally specific to the methodology and material the expert relied upon to formulate [their] Report, including where the interviews were conducted, for how long, and what material [they] referenced in the preparation of the Report”.

33Expert A filed an affidavit on 9 July 2020, effectively containing [their] further submissions. In summary, and dealing with each of the father’s submissions in turn, Expert A submitted that:

a)The final redacted Report still identified Expert A’s professional qualifications and work history. Given that there are relatively few practitioners who work as single experts in Western Australia, [their] very specific combination of professional qualifications and work background makes [them] readily identifiable. Accordingly, the final redacted Report continued to contravene s 121(1) of the Act.

b)Given Expert A’s appointment was the subject of a consent order, [they were] effectively compelled to provide the report and the Harman principle accordingly applied.

c)When consenting to act as the single expert witness, Expert A was not informed that the Report may be provided to members of Parliament. Had [they] been so informed, [they] may not have accepted the appointment. Expert A also raised concerns about the possible harmful impact on the children (particularly as they grew older) if the matter became the subject of a public debate and/or publicity.

d)Expert A’s Report was not deficient, as the father appeared to assert.

e)If the sole purpose of the father in seeking publication of the Report was to “highlight issues generally specific to the methodology and material the expert relied upon to formulate [their] Report”, then the father did not need to publish the redacted Report, and could just as easily provide the information generally in a written submission to members of Parliament and the Committee.

34At the hearing on 15 July 2020, the father appeared in person and the mother and Expert A appeared by telephone. Both the father and Expert A made some brief oral submissions in support of their written submissions. The mother informed me that she did not consent to the publication of the Report in any form which contained details that would identify her and the children. However, she chose not to make any submissions, either responding to the father or to Expert A.

Applicable law:

35As the father wishes to publish the Report in a form that still contains identifying particulars, his application falls to be considered under s 121 of the Family Law Act 1975 (Cth) (the “Act”).[4]

[4] Had the father maintained his initial position, that all identifying particulars would be redacted from the Report, then his application would have been considered having regard to the Harman principle, which was described by the High Court in Hearne v Street (2008) 235 CLR 125 at [96] in the following terms: “Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any other purpose than that for which it was given unless it is received into evidence.”

36Section 121(1) of the Act restricts the publication of court proceedings in the following terms:

(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

37Section 121(3)(a) lists the types of particulars that, if contained in an account of proceedings, shall be taken to identify a person and includes (among others): (i) the name, title, pseudonym or alias of the person; (ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated; and (iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or any honorary position held by the person. The particulars must, however, be sufficient to identify the person to a member of the public, or to a member of the section of the public to which the account is disseminated. I otherwise note that s 121(3) is expressed as not limiting the generality of s 121(1).

38The restriction imposed by section 121(1) is tempered by section 121(9), which sets out a number of circumstances in which the restriction will not apply.

39Relevantly to this application, s 121(9) provides that the restriction in s 121(1) does not apply to or in relation to: at sub-section (d): the publishing of a notice or report in pursuance of a direction of a court; and at sub-section (g): publication of accounts of proceedings, where those accounts have been approved by the court.

40In my view, both sub-sections provide me with the power to make an order in the terms sought by the father.

41In AH v SS (2005) 194 FLR 111, Bryant CJ at [26] observed that s 121 was placed in the Act to overcome prurient reporting that had occurred prior to the passing of the Family Law Act 1975 (Cth) in relation to parties who were involved in divorce proceedings.

42In Western Australian Newspapers Ltd and Channel 7 Perth Pty Ltd and Cuzens (2016) FLC 93-690, Thackray CJ described the purpose of the section in the following terms (at [26]):

Section 243 [of the Family Court Act 1997 (WA), being the equivalent statutory provision of section 121] is an exception of the principle of open justice. It is a restriction imposed by Parliament and not by the Family Court. The underlying policy is to ensure that people do not feel discouraged from coming to the court for fear of having their private life made public. The law is also designed to ensure that children are not held up to ridicule, curiosity or notoriety.

43I agree with his Honour’s comments at [27] that:

As the Chief Judge of the court, I would much prefer that the public be given full information concerning what actually happens in the Family Court day-in, day-out. This would help to dispel the many myths and misunderstandings about the work of the court. It would also expose the blatant lies of a small number of litigants who use social media and other means to give their side of their experience in the court and to blacken the name of their ex-partner.

44The Act provides no guidance as to how the court should exercise its discretion in permitting publication pursuant to section 121(9)(d) or (g).[5] Whilst the discretion is unfettered, it must nevertheless be exercised judicially.

[5] AH v SS (2005) 194 FLR 111, [32]; Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [44].

45In AH v SS (supra), Bryant CJ observed that she was assisted in the exercise of the discretion by having regard to cases decided previously:

[32] …In F and R (No 2) (1992) 107 FLR 74, Fogarty J considered the background to the enactment of s 121. In doing so he identified as relevant criteria the best interests of children and whether the matter involved raised an issue of public interest. At 80-81 his Honour said:

Whilst the welfare of the child may not be the absolute determinate of the matter, it is, nevertheless, a most critical circumstance.

[33]In Re Lowe, Herald and Weekly Times Ltd (1995) 121 FLR 421, Nicholson CJ, as he then was, released information by way of a media report about a case and said at 423-424:

It is certainly true that the authorisation of publication is often of considerable assistance to the Court in matters such as the location of children. However, I do not believe that it should be confined to that object. There is a recognised right of freedom of public discussion of matters of legitimate public concern.

[34]His Honour then quoted from the judgment of Deane J in Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 57:

Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society. The fact that judicial proceedings have been instituted does not remove such matters from the area of legitimate public comment, public discussion and public inquiry. Matters of importance or concern or interest to the nation, to a particular section of the community or to particular individuals, are commonly involved in judicial proceedings and it would be oppressive and futile to adopt the approach that the mere fact that they are so involved should automatically remove them from the public domain.

[35]Dawe J took a similar view more recently in B v Minister for Immigration and Multicultural and Indigenous Affairs and The Advertiser Newspapers Ltd (unreported judgement delivered on 6 September 2002). At [23] her Honour said:

In relation to the order that is to be made, I accept that there is a public interest in the type of these proceedings and the very arguments that are before the court. I think the public would benefit greatly from an informed, intelligent debate about the laws that parliament has put in place in relation to matters in the Family Law Act and other matters which are before the court, namely the Migration Act. Those matters in my view can be publicly aired in an appropriate matter, whilst at the same time exercising care that the parties and the children are not identified.

46In Seven News (Operations) Limited & Cockman(2018) FLC 93‑842, Thackray CJ described the court’s task when considering an application to publish as the need to “balance the public benefit in publishing the relevant material against the benefit which underpins the general prohibition contained in s 121”.[6]

[6] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50].

47There are several identified categories of case where the court may be persuaded to exercise its discretion to permit publication of an account of proceedings that identifies a relevant person, as follows:

a)where it is in the best interests of the child to permit publication, such as in the case of needing to locate a child who has been secreted away by one parent, or where misleading or incorrect information has already entered the public domain and it would be of benefit to the child to have any adverse views dispelled or balanced by further publication;[7]

b)to protect public confidence in the court;[8]

c)to address a myth or misunderstanding about any relevant legal issue,[9]

d)to make the public aware of how the law is applied in certain situations, particularly with respect to unusual or novel situations;[10]

e)to ameliorate or deal with misleading or incorrect information already in the public domain;[11]

f)where there is a public benefit in “shining a light” on a particular issue as was the case in Neubert & Neubert [2017] FamCA 903, where the judge considered that there was a public benefit in “shining a light” on domestic violence;[12]

g)to advance the public debate on issues of law reform and the funding of the family law system.[13]

[7] AH v SS (2005) 194 FLR 111, [47].

[8] AH v SS (2005) 194 FLR 111, [44].

[9] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50(2)].

[10] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50(3)].

[11] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50(4)].

[12] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50(1)].

[13] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50(5)].

48The above categories serve as a guide only, and do not represent an exhaustive list. Further, even if an application for publication falls within one or more of the categories, the particular circumstances of the case may nevertheless result in the court declining to exercise the discretion. In that regard, Thackray CJ in Cockman (supra) provided some guidance as to circumstances that may militate against the granting of leave to publish, for example:

a)Where an official investigation (including by the police or the Coroner’s Court) is incomplete, or is yet to commence, and the proposed publication would serve to speculate on matters relevant to the investigation;[14]

b)Where the report sought to be published is overly selective, such that there is a risk that the report will be rendered inaccurate by omission;[15]

c)Where the report sought to be published cannot be regarded as fair and accurate,[16] including where the report sensationalises certain matters;[17]

d)Where the report identifies extended family members, the potential impact on those family members, and any desire for privacy expressed by those family members.[18]

Discussion and conclusions:

[14] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [51(1)].

[15] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [51(2)].

[16] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [51(3)-(4) and (6) – (7)].

[17] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50(4)].

[18] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [51(9)].

49Is the Report an account of proceedings, or an account of part of proceedings, that attracts the protection of s 121(1)? In my view, the answer to this question is “yes” as the Report “narrates, describes, retells or recites something that has happened in the proceedings, or something about the proceedings”.[19]

[19] Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308, [53].

50I am satisfied that the final redacted Report does not remove all identifying particulars in relation to Expert A and the parties, and accordingly publication would contravene s 121(1). The father conceded that the final redacted Report only “minimised” the identification of Expert A, but [their] specific professional qualifications and work history remained. I accept Expert A’s submission that as there are relatively few practitioners who work as single experts in Western Australia, the failure to redact Expert A’s very specific combination of professional qualifications and work history in the final redacted Report makes [them] sufficiently identifiable to members of the public. The father conceded during his oral submissions that the paragraphs of the final redacted Report setting out Expert A’s qualifications and work experience could also be redacted. However, that still did not address the issue in relation to the parties themselves. I am satisfied that having regard to the extent of the material left un-redacted in the final redacted Report (as set out in paragraph 28 above) the parties, and by implication, the children, are also sufficiently identifiable to members of the public.

51In the exercise of my discretion pursuant to s 121(9) (d) and/or (g), should I nevertheless authorise publication in the form sought by the father? In my view, the answer to this question is “no” for the following reasons.

52There was no suggestion that it was in the best interests of the children to permit publication, for example, to assist in locating children who had been secreted away by the unilateral actions of one parent. Indeed, the contrary submission by Expert A as to the possible harmful impact on the children (particularly as they grew older) if the matter became the subject of a public debate and/or publicity weighs, in my view, against publication in the manner sought by the father. There was also no suggestion that knowledge of the case was already in the public domain; or that there was any public interest in the case; or that the issues in dispute between the parties were so novel or unusual that there was some benefit in making the public aware of how the law was applied in this case.

53The father acknowledged Expert A’s concerns about the final redacted Report being viewed in isolation and conceded that if his sole purpose in seeking publication was to test its “validity”, then it would be inappropriate. In my view, the fact that the father has a wider and/or different purpose in seeking publication does not therefore render publication “appropriate”. This is particularly so in circumstances where: (1) the final redacted Report still contains detailed personal information (such as the parties’ countries of origin, families of origin, educational history, work history, and their relationship history, including but not limited to details of allegations made by both parties in relation to family violence); and (2) readers of the final redacted Report do not have any knowledge of the wider evidentiary material that was available to Expert A in the preparation of the Report which would provide them with some context, such as the parties’ affidavits and the subpoenaed documents.

54In his written submissions, the father maintained that publication of the final redacted Report will potentially highlight the current deficiencies in the delivery of single expert reports and possibly allow future expert witnesses to be more accountable, and strive for better, more comprehensive reports. The fact that a litigant may be disappointed by the conclusions reached by a single expert witness in a report does not mean that the report is “deficient”. In this case, there is simply no cogent evidence from which I can conclude that Expert A’s Report is an example of the “current deficiencies in the delivery of single expert reports”, as the father maintained. For example: there were no findings of a judge following a defended trial, given that the parties consented to final orders and did not proceed to trial. There was also no cogent evidence that Expert A did fail to comply with the Australian Psychological Society Code of Ethics. There was also no evidence that the AHPRA, or any other professional body, have taken any disciplinary or other action against Expert A in relation to the Report.

55In his oral submissions, the father also maintained that publication of the final redacted Report would enable him to continue to advocate for “shared care” of children, including by challenging what he appeared to perceive were ongoing failures by single expert witnesses to give proper consideration to such arrangements, and of courts effectively “rubber stamping” the conclusions of single expert witnesses. I considered the father’s submissions in this regard failed to take into account the following: (1) if the parties cannot agree, then the judicial officer is ultimately responsible for deciding the arrangements that are in the best interests of children, and not the single expert;[20] (2) it follows that the evidence of the single expert is but one part of the myriad of evidence the judicial officer must consider at trial when determining parenting issues in accordance with the applicable legislation; and (3) in this case, the father chose (for reasons of his own) to settle the proceedings on a final basis after the publication of the Report rather than proceed to trial (where he would have had the opportunity to challenge the evidence of the single expert witness to the extent he did not agree with it).

[20] As was recently confirmed by the Full Court in Albert & Plowman [2020] FamCAFC 23, at [19] – [22].

56In his written submissions, the father also submitted that publication would advance the public debate on issues of law reform. In particular, he sought to use the final redacted Report to make submissions about the methodology and material the expert relied upon to formulate [their] Report. He submitted that: “The report contains [Expert A’s] affirmed statements as to how and where [they] conducted [their] interviews, how long they took and what material [they] referenced. These are all vital pieces of information for our government to assess the process and usefulness of single expert reports in Family Court cases”. There is no doubt that advancing the public debate on issues of law reform and the funding of the family law system is a recognised basis for the exercise of discretion pursuant to s 121.[21] However, in this case, I am not persuaded that the public benefit in publishing the final redacted Report in the form proposed by the father outweighs the very clear policy rationale that underpins the protection afforded by the general prohibition contained in s 121.[22]

[21] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50(5)].

[22] Seven News (Operations) Limited & Cockman (2018) FLC 93-842, [50].

57However, I am satisfied that there is a public benefit in publishing limited extracts from the final redacted Report which: (1) set out the general methodology and assessment methodology adopted by Expert A; (2) set out the social science literature referenced by [them]; but (3) do not otherwise identify the parties, the children or Expert A, save for identifying that the author of the extracted portions is a clinical psychologist registrar. Such publication would advance the limited purpose identified by the father (that is, to assist law reform) without unduly compromising the privacy of the interested parties, and I am satisfied that it is appropriate that I exercise the discretion conferred upon me by s 121(9)(d) or (g) to permit him to do so. Accordingly, I intend to make orders that, subject to the publication being the subject of the notation referred to in the following paragraph, the father be permitted to only publish the following extracts of the final redacted Report to members of Parliament and to the Committee:

a)The paragraphs under the heading “Statement of Facts” on page 3;

b)The paragraphs under the heading “General Methodology” on pages 3 and 4;

c)The paragraphs under the heading “Statement of Non-Confidentiality” on page 4;

d)The paragraphs under the heading “Literature and Other Material Relied Upon” on pages 4 and 5; and

e)Paragraphs 4 to 7 inclusive under the heading “Assessment Methodology” on pages 5 and 6. [For the avoidance of any doubt, this is on the basis that the current redaction to paragraph 4 (which relates to the location of Expert A’s office) remains].

58Both the father and Expert A agreed, and I am satisfied that, federal members of Parliament and the Committee should have the benefit of being able to place the material into some context, including by reference to these reasons for decision. To that end I propose to: (1) make arrangements for the Court to anonymise and publish the judgment on the Court’s website; and (2) make publication of the extracts conditional on the inclusion of a notation at the commencement of the extracted portions which reads: “On 17 July 2020, the Family Court of Western Australia has granted permission for the following extracts to be published to any member of the Parliament of Australia and to the Joint Select Committee on Australia’s Family Law System. The extracts have been taken from a report prepared by an independent Clinical Psychologist Registrar for the purposes of parenting proceedings. The Family Court of Western Australia’s reasons for decision in permitting the publication are available on the Court’s website, citation: [2020] FCWA 120”.

59For the sake of clarity, I propose to annex to the Orders a document containing the notation and extracts that the father is permitted to publish, as set out in paragraphs 57 and 58 above.

Orders:

60At the conclusion of the hearing, all parties agreed to me issuing my reasons and orders from chambers without the necessity for any further attendance by the parties at court.

61I propose to make the following orders:

1. The father be at liberty to publish to any member of the Parliament of Australia and to the Joint Select Committee on Australia’s Family Law System only, the document set out at Annexure “A” to these Orders, being extracts from the final redacted Single Expert Report dated 16 May 2019 in relation to proceedings PTW 297/2016.

2. The Form 2 application filed 18 February 2020 otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
Associate

17 JULY 2020