CUNNINGHAM & CUNNINGHAM

[2017] FamCA 15

FAMILY COURT OF AUSTRALIA

CUNNINGHAM & CUNNINGHAM [2017] FamCA 15

FAMILY LAW – PRACTICE AND PROCEDURE – Where documents were produced by the Department of Communities, Child Safety and Disability Services under subpoena – Where the documents were provided in redacted form – Where redaction of notifiers’ identity remained in place – Where some redaction of the particulars of the notifications were removed and copies provided to the legal representatives of the parties  

Family Law Act 1975 (Cth) s 69ZW
Child Protection Act 1999 (Qld) s 186

Director-General, DFCS v Jordan (2012) 47 Fam LR 666

APPLICANT: Mr Cunningham

RESPONDENT: Ms Cunningham

INDEPENDENT CHILDREN’S LAWYER: Mary-Ann Huth

FILE NUMBER: BRC 10161 of 2015

DATE DELIVERED: 20 January 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 9, 10 and 11 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan QC

SOLICITOR FOR THE APPLICANT: HopgoodGanim Lawyers

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Stewart Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Huth
Legal Aid Queensland

Orders – Made 10 January 2017

1. That pursuant to section 69ZW of the Family Law Act 1975, the Director-General, Department of Communities, Child Safety and Disability Services provide to the Court as soon as practicably possible an unredacted marked up copy in a sealed envelope marked “Judge’s eyes only” of all the documents produced to the Court pursuant to subpoena in this matter to date to enable the Court to consider an application pursuant to s 186 of the Child Protection Act 1999 (Qld) made by the applicant father in these proceedings.

Orders – Made 11 January 2017

1. That leave is granted to the legal representatives of the parties to obtain copies of the CDs containing the s 93A interviews of the child, B, and of the father, Mr Cunningham, with the copies to be returned to the Court at the expiration of the appeal period after delivery of judgment.

2. That the legal representatives of the parties be provided with copies of documents produced by the Director-General, Department of Communities, Child Safety and Disability Services, with certain redactions removed as determined by the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cunningham & Cunningham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10161 of 2015

Mr Cunningham

Applicant

And

Ms Cunningham

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. At the start of the trial in this matter, Counsel for the Independent Children’s Lawyer tendered into evidence a bundle of documents – copies of documents produced pursuant to subpoena by various persons and organisations, including two distinct bundles of documents produced by the Queensland Department of Communities, Child Safety and Disability Services. There were two distinct bundles of those documents as the Director-General of that Department had responded to two separate subpoenas caused to be issued out of the Court by the ICL at different stages in the lead up to the trial in these proceedings.

2. Many of those documents produced by the Department that were included in the tendered bundle had large portions redacted so that the content could not be read by anyone inspecting the documents. It was clear that the redactions were made by officers of the Department in the copies of the documents originally produced to the Court pursuant to the subpoenas. The redactions actually included reference to s 186. It is clear that refers to s 186 of the Child Protection Act 1999 (Qld).

3. Queens Counsel for the mother immediately made application for the Court to direct the Director-General of the Department to provide un-redacted copies of the documents. Counsel for the ICL supported the application.

The Proceedings   

1. The substantive proceedings before the Court include competing applications for parenting orders between the parents of two young children. At the heart of the parenting dispute are allegations by the mother that the father has sexually abused their female child. When the allegations first arose, the Department and the Queensland Police Service became involved and undertook separate investigations. At the end of those investigations the Department determined that the allegations were “unsubstantiated” and the Police determined not to lay any charges against the father.

My actions

1. I made an order pursuant to s 69ZW of the Family Law Act 1975 (Cth) for the Director-General of the Department to provide the Court with unredacted copies of the documents previously produced under the two separate subpoenas in an envelope marked “Judge’s eyes only”.

2. Section 69ZW provides:

   Evidence relating to child abuse or family violence

   (1) The court may make an order in child‑related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.

   (2) The documents or information specified in the order must be documents recording, or information about, one or more of these:

   (a) any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

   (b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c) any reports commissioned by the agency in the course of investigating a notification.

   (3) Nothing in the order is to be taken to require the agency to provide the court with:

   (a) documents or information not in the possession or control of the agency; or

   (b) documents or information that include the identity of the person who made a notification.

   (4) A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.

   (5) The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.

   (6) Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:

   (a) the person consents to the disclosure; or

   (b)the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.

   (7) Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:

   (a) is notified about the intended disclosure; and

   (b) is given an opportunity to respond.

3. When making the order that I did for the production to the Court of the unredacted copies of the documents previously produced to the Court in redacted form, I was conscious of the wording of subsection (3)(b) of s 69ZW and the decision of the Full Court of this Court in Director-General, DFCS v Jordan (2012) 47 Fam LR 666 in which the Full Court expressly said at [48] “section 69ZW (3) specifically preserves to the agency the decision about whether to provide material that identifies the person who made the notification”.  I was also aware of arrangements between the Federal Circuit Court, Brisbane Registry and the Queensland Department pursuant to which unredacted copies of Departmental documents can be requested to be provided by the Department to the Court.

4. My order was communicated to the Department and the unredacted documents (in electronic form) were provided to the Court within twenty four hours. I then inspected print outs of the documents privately in my chambers.

The Reasons for Redaction

1. The Director-General of the Department clearly relied on s 186 of the Child Protection Act 1999(Qld) as the grounds for the redaction. Each of the redacted parts simply referred to s 186. Relevantly, that section provides as follows:

   186 Confidentiality of notifiers of harm or risk of harm

   (1) This section applies if a person (the notifier) notifies the chief executive or an authorised officer, police officer, doctor or nurse that the notifier suspects—

   (a)       a child has been, is being or is likely to be, harmed; or

   (b) an unborn child may be at risk of harm after he or she is born.

   (2) The person who receives the notification, or a person who becomes aware of the identity of the notifier, must not disclose the identity of the notifier to another person unless the disclosure is made—

   (a) in the course of performing functions under this Act or a child welfare law or interstate law of another State to another person performing functions under this Act or a child welfare law or interstate law of another State; or

   (b) under the Child Protection (International Measures) Act 2003, part 6; or

   (c) to the ombudsman conducting an investigation under the Ombudsman Act 2001; or

   (e) for the performance by the chief executive (adoptions) of his or her functions under the Adoption Act 2009; or

   (f) by way of evidence given in a legal proceeding under subsections (3) and (4); or

   (g) to the litigation director for the purposes of the director performing a function under the Director of Child Protection Litigation Act 2016.

   (3)      Subject to subsection (4)—

   (a)evidence of the identity of the notifier or from which the identity of the notifier could be deduced must not be given in a proceeding before a court or tribunal without leave of the court or tribunal; and

   (b)unless leave is granted, a party or witness in the proceeding—

   (i)must not be asked, and, if asked, can not be required to answer, any question that can not be answered without disclosing the identity of, or leading to the identification of, the notifier; and

   (ii)must not be asked to produce, and, if asked, can not be required to produce, any document that identifies, or may lead to the identification of, the notifier.

   (4)      The court or tribunal must not grant leave unless—

   (a)      it is satisfied—

   (i)the evidence is of critical importance in the proceeding; and

   (ii)there is compelling reason in the public interest for disclosure; or

   (b)the notifier agrees to the evidence being given in the proceeding.

   (5) In deciding whether to grant leave, the court or tribunal must take into account—

   (a)the possible effects of disclosure on the safety or wellbeing of the notifier and the notifier’s family; and

   (b)      the public interest in maintaining confidentiality of notifiers.

   (6)As far as practicable, an application for leave must be heard in a way that protects the identity of the notifier pending a decision on the application.

2. I am satisfied that the Director-General, through the officers of the Department responsible for the redactions, has acted on a bona fide intent to comply with obligations imposed by s 186 not to disclose the identity of a person who has notified suspected child abuse or neglect to the Department. However, in respect to most of the redactions, I was, respectfully, not satisfied that the redacted material was material that either actually identified the notifier or from which the identity of the notifier could be deduced. For example, some of it was the expression of opinions in internal Departmental reports.

3. There were other documents in which information given by notifiers at particular institutions such as the C Hospital and the particular child care centre where the subject child attended was redacted along with the identity of the particular notifier. I was satisfied that the unredacted content of the particular notifications could be provided to the legal representatives of the parties for their inspection but with the identification of the particular notifiers nevertheless still redacted for the protection of their identity. I told the legal representatives that if they considered that revelation of the identity of those specific notifiers was necessary that they would have to make more particular further application for any orders requiring that information to be provided and that the Director-General would have to be given notice of such applications and the opportunity to be heard. I did not consider that revelation of the redacted content of the notifications enabled the identity of the notifier to be deduced.

4. Included in the redacted content of the notifications that came from the C Hospital was reference to the mother, who had taken the child to the hospital for examination on the advice of a paediatrician she had consulted over the telephone, and the information that the mother had provided to the hospital. The mother is not the notifier in respect of those matters simply because she reported things to hospital staff. There is, in my judgment, no obligation imposed by s 186 on the Director-General not to disclose the content of documents that would reveal what the mother told hospital staff. Accordingly, I was not satisfied that such redacted content could not be provided to the legal representatives for inspection. Indeed, what the mother told the hospital on presentation could potentially be important evidence in the proceedings in this Court and should not have been redacted in the first place, in my respectful judgment. I have the same view with respect to information contained in notifications received from the child’s child care centre that reveals things the mother is said to have informed the child care centre. That information does not reveal the identity of the person who notified the Department.

5. There were other parts of documents redacted the explanation for which I simply could not accurately determine, save for a possibility that the Departmental officer who redacted them may have thought that revelation of them might somehow compromise the ongoing investigations of the Department or the Police. They had nothing to do with the identification of a notifier. I do not consider that a reason for not permitting the legal representatives of the parties to inspect the documents at the start of the trial, well after the investigations have been completed. 

6. In a parenting dispute such as this, being determined within this Court’s Magellan list, I am respectfully of the view that the consideration of the applicability of s 186 of the Child Protection Act 1999 (Qld) to documents being sought to be produced by the Department under subpoena issued out of the Court requires more careful consideration than the rather ‘ad hoc’ hit and miss redaction that took place in this case. Of course, I appreciate the public interest in both the effective application of s 186 and the efficient use of the limited resources at the Director-General’s disposal, but it is hoped that future redaction of documents produced under subpoena by the Department in matters within this Court’s Magellan list might be undertaken with more careful thought to the actual application of the content of s 186.

7. As I have made clear, at the end of my inspection of the unredacted copies of the documents provided to the Court by the Department, I provided certain of those documents to the legal representatives of the parties upon the condition that whilst they could be shown to the parties in order to obtain instructions to assist in the conduct of the trial, no copies were to be provided to the parties and the copies provided to the legal representatives were to be returned to the Court at the conclusion of the appeal period after the delivery of my final judgment in the substantive proceedings. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 January 2017.

Associate: 

Date:  20 January 2017