Dalley
[2022] FedCFamC2F 1642
Federal Circuit and Family Court of Australia
(DIVISION 2)
Dalley [2022] FedCFamC2F 1642
File number(s): CAC 2048 of 2022 Judgment of: JUDGE MANSFIELD Date of judgment: 1 December 2022 Catchwords: FAMILY LAW - Children – Existing final orders already provide for mother to have sole parental responsibility - Mother seeks orders providing for the child’s name to be changed to satisfy requirements of state laws - Mother does not want the father to know about the application and for it to be heard and determined ex-parte and undefended – Determination that father is not a necessary party – In the alternative, the welfare of the child overrides the father’s right to natural justice - Suppression order necessary to protect the safety of the mother and the child from the father – Suppression order made with conditions that provide for the public interest in open justice, and, are sufficient to protect the mother and the child from the father, whilst still providing for the orders to be given effect Legislation: Australian Passports Act 2005 s 11
Births, Deaths And Marriages Registration Act 1995 s 28
Family Law Act 1975 ss 60CA, 60CC(2), 60CC(3), 65D(1), 69ZN, 102PC, 102PE, 102PF, 102PH, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.31, 3.02, 5.11(b)
Cases cited: AK v Western Australia (2008) 232 CLR 438
J v Lieschke (1986-7) 162 CLR 447
M v M (1988) 12 Fam LR 606
Norton and Landell (Suppression or Non Publication Orders) [2015] FamCA 125
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Reagan & Orton [2016] FamCA 330
Separate Representative v J H E and G A W (1993) 16 Fam LR 48
Stowe & Stowe (1981) FLC 91-027
Zalsman & Blendall [2020] FamCA 292
Division: Division 2 Family Law Number of paragraphs: 53 Date of last submission/s: 15 November 2022 Date of hearing: 15 November 2022 Place: Canberra Solicitor for the Applicant: Ms Taylor Solicitor for the Independent Children's Lawyer: Ms Bartlett ORDERS
CAC 2048 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DALLEY
Applicant
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MANSFIELD
DATE OF ORDER:
1 December 2022
THE COURT ORDERS THAT:
1.The interim orders made on 4 November 2022 are discharged.
IT IS NOTED THAT:
A.Orders of this Court in previous proceedings have been made for the applicant to have sole parental responsibility for the child X, born in 2007 (“the child”).
THE COURT FURTHER ORDERS THAT:
2.In relation to the child X, born in 2007, the court approves the proposed change of name and orders the Registrar of Births, Deaths and Marriages (NSW) to register the child’s name in the form X pursuant to s 28(3)(c) and s 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW).
3.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the child is permitted to have an Australian Passport and to travel internationally.
AND IT IS FURTHER NOTED THAT:
B.The order conferring sole parental responsibility on the Applicant for the child previously known as X and to be known as X is unaffected and remains in force and effect.
THE COURT FURTHER ORDERS THAT:
4.Subject to Order 6, pursuant to s 102PE of the Family Law Act 1975, a suppression order is made prohibiting the disclosure of the information, which includes the documents, within the court file.
5.The documents within the court file are to be kept in sealed envelopes and not to be opened without an order of the court.
6.The following information and documents are exempt from the suppression order:
(a)The judgment by this Court under any pseudonym as approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth);
(b)The sealed orders of this court may be held by the mother and disclosed by the mother to the Registrar of Births, Deaths and Marriages (NSW) and any other person to whom it is necessary for the mother to engage with in order to give effect to these orders.
AND IT IS FURTHER NOTED THAT:
C.The grounds for making the suppression order are pursuant to section 102PF(1)(c) to protect the safety of the Applicant and the child.
D.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
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 a pseudonym Dalley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
INTRODUCTON
By Amended Initiating Application, the mother seeks orders providing for the child’s name to be changed and for a passport to issue to the child in this new name. The mother does not want the father to know about the application and for it to be heard and determined ex-parte and undefended. There are three issues for determination:
(i)Parties to the proceeding and/or proceeding ex-parte and undefended;
(ii)The change of name and issuing of a passport; and
(iii)Making of a suppression or non-publication order.
THE HEARING
Under cover letter of urgency, an Initiating Application dated 27 October 2022 and filed on 31 October 2022 was referred to Chambers by the Duty Registrar. On the same day, orders were made in Chambers appointing an Independent Children’s Lawyer and listing the matter for mention 4 November 2022.
On 4 November 2022, it was conceded by the applicant that the matter was not urgent but pressing. On the strength of the affidavit in support of the Initiating Application and a further affidavit filed by the mother on 3 November 2022:
(a)An Order was made dispensing with the requirements for service upon the then respondent father; and
(b)An interim suppression and non-publication order was made, pursuant to section 102PE and 102PH of the Family Law Act1975 (“the Act”), prohibiting and restricting the publication and disclosure of information tending to reveal the identity of or otherwise concerning any party or witness in the proceedings; and
(c)Trial directions were made and the matter listed for hearing on 15 November 2022.
Due to the nature of the suppression and non-publication order, no party was to have access to the electronic court file and the Orders were sent by email to the applicant and the ICL.
At the hearing on 15 November 2022, the applicant mother moved on the Initiating Application of 27 October 2022 and relied on affidavits deposed by her on 27 October 2022, 3 November 2022 and 9 November 2022, a Notice of Risk dated 27 October 2022 and a Minute of Orders Sought dated 14 November 2022. The applicant was represented and made submissions in line with the Written Submissions filed on behalf of the mother on 3 November 2022 and 14 November 2022.
The ICL supported the application in her Case Summary Document of 15 November 2022 and made submissions to that effect.
Before pronouncing final orders, I brought the matter back to hear from the applicant as to why the application was brought in the mother’s now former name and not her current name (circumstances as to the mother’s change of name are below). On 28 November 2022, the applicant consented to an order that the mother file an Amended Initiating Application rectifying the name of the applicant mother.
Also on 28 November 2022, (for reasons that follow) orders were made that the father be removed as a party to these proceedings and that there is to be no Respondent in these proceedings. This changes the name of the proceedings and means that the sealed final orders would not have a Respondent (and thereby the father) as a party to the proceedings which (for reasons that follow) operates as a protective factor to the applicant and the child.
FACTS, MATTERS & CIRCUMSTANCES
The mother and the father were in a relationship for 13 years when the child was born. They separated 12 years later which is 3½ years prior to this application. The father is currently serving a substantial term of imprisonment for family violence offences. Parenting orders have been made for the mother to have sole parental responsibility. There is no provision for the father to contact the child unless the child initiates it.
The child is 15 years old and has been diagnosed with post-traumatic stress disorder and major depression which her psychologist connects to the violence perpetrated by the father and she requires ongoing treatment. Since the father’s incarceration, at the child’s instigation, the mother and the child moved to a different town. The child has commenced living as her preferred name and wants to change her name but will not enrol in a school, attend upon any doctors or therapy or do anything that will create a record of her current name. This is significant as the child has previously engaged in self-harm and expressed and acted on suicidal ideation and intent. A general practitioner is required to renew and maintain her mental health plan to facilitate her ongoing engagement with her treating or a new psychologist.
The mother applied to the Registrar of Birth, Deaths and Marriages (NSW) (“the Registrar”) to change the child’s name and also her own surname to match the child’s preferred surname. The mother’s application was successful and her name has changed. The application to change the child’s name was rejected. The mother’s appeal of that decision was unsuccessful. In New South Wales, a sole parent can apply to change the name of their child if: they are the sole parent named on the current birth certificate; there is no other surviving parent; or, a court approves the proposed name change.
Parties to the proceeding and/or proceeding ex-parte and undefended
The mother already has sole parental responsibility for the child which includes issues about the child’s name and the issuing of a passport. The father was a party to those proceedings and the parenting orders were made by consent. There is no accompanying order whereby the mother is required to consult or notify the father when exercising sole parental responsibility. So far as this court is concerned, there is no need for this application with respect to either the change of the child’s name or the issuing of a passport.
In relation to the child’s name, the sole purpose of the application is to meet the mandatory precondition imposed by the NSW state law:
BIRTHS, DEATHS AND MARRIAGES REGISTRATION ACT 1995 - SECT 28
(1) The parents of a child may apply to the Registrar, in a form approved by the Registrar, for registration of a change of the child's name if--
(a) the child's birth is registered in the State, or
(b) the child was born outside Australia, the child's birth is not registered in Australia and the child has been resident in the State for at least 3 consecutive years immediately preceding the date of the application.
(2) If the parents of the child are dead, cannot be found or for some other reason cannot exercise their parental responsibilities in relation to the child, the application may be made by a person to whom a court within Australia has allocated--
(a) parental responsibility for the child, or
(b) specific aspects of parental responsibility for the child so long as the making of the application is not outside the scope of the aspects allocated.
(2A) If there is more than one such person referred to in subsection (2), the application may be made only as a joint application of those persons.
(3) An application for registration of a change of a child's name may be made by one parent if--
(a) the applicant is the sole parent named in the registration of the child's birth under this Act or any other law (including a corresponding law), or
(b) there is no other surviving parent of the child, or
(c) a court approves the proposed change of name.
(4) The District Court may, on application by a child's parent, approve a proposed change of name for the child if satisfied that the change is in the child's best interests.
(5) If any court (including any court of another State or the Commonwealth) approves a proposed name for a child, the court may order the Registrar to register the child's name in a form specified in the order.
(6) In this section--
“parental responsibility” , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.
The mother’s unsuccessful application was presumably made pursuant to sub-s (2). However, the reasons for its rejection by the Registrar (and the subsequent appeal of that decision) are not in evidence.
For the purposes of this application, sub-s (3)(c) and sub-s (5) are the relevant provisions. In my view, the condition at sub-s (3)(c) has already been met by the order of this Court that provided for the mother to have sole parental responsibility of the child and requires no further judicial consideration. From this same Court’s perspective, sub-s (5) is a fait accompli.
On the mother’s evidence, the Registrar does not agree such that this application is necessary. The application is therefore akin to the request for the issuing of a certificate as opposed to an application for a parenting order under Part VII of the Act. In this context, the father need not be, and ought not be, a party to these proceedings. To make him so in order to determine this application is tantamount to subverting the previous order of this Court by providing the father with an opportunity to re-litigate the issue of parental responsibility. For these reasons, an Order was made on 28 November 2022 removing him as a party to these proceedings.
The same rationale applies in relation to the issuing of a passport. The relevant provision of the Australian Passports Act 2005 is set out below. In my view, the conditions at paragraphs (a) or (b) or (d) of sub-s (5), and therefore sub-s (1)(a), have already been met by the order that provided for the mother to have sole parental responsibility of the child and requires no further judicial consideration.
AUSTRALIAN PASSPORTS ACT 2005 - SECT 11
(1) The Minister must not issue an Australian travel document to a child unless:
(a) each person who has parental responsibility for the child consents to the child having an Australian travel document; or
(b) an order of a court of the Commonwealth, a State or a Territory permits:
(i) the child to have an Australian travel document; or
(ii) the child to travel internationally; or
(iii) the child to live or spend time with another person who is outside Australia.
…
(5) For the purposes of this section, a person has parental responsibility for a child if, and only if:
(a) the person:
(i) is the child's parent … ; and
(ii) has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 ; or
…
(b) under a parenting order:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child; or
(d) the person has … parental responsibility for the child under a law of the Commonwealth, a State or a Territory.
The mother of course cannot apply for the issue of a passport in the child’s proposed name until it is registered. It is not known whether or not the delegate of the Minister will issue an Australian travel document (which includes an Australian Passport) on the mother’s sole application pursuant to s 11(1)(a). Nevertheless, the mother seeks an order pursuant to s 11(1)(b) for the avoidance of doubt, or perhaps more particularly, the avoidance of complications when the time comes to apply for an Australian Passport. Once again, the application is therefore akin to the request for the issuing of a certificate as opposed to an application for a parenting order under Part VII of the Act. In this context, the father need not be and ought not be a party to these proceedings. For these reasons, an Order was made on 28 November 2022 removing him as a party to these proceedings.
In the event I am wrong in my approach, and these proceedings are in fact an application for parenting orders under Part VII of the Act, it is necessary to engage with Rule 3.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules) which relevantly states:
(1) If an application is made for a parenting order in relation to a child, the following must be parties to the proceeding:
(a) the parents of the child;
…
(2) If a person referred to in subrule (1) is not an applicant in a proceeding involving the child, the person must be joined as a respondent to the application.
Rule 1.31 provides that the court may make orders or dispense with Rules in the following terms:
(1) The court may, in the interests of justice, dispense with compliance, or full compliance, with any of these Rules at any time.
(2) If, in a proceeding, the court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the court prevails in that proceeding.
Having made the Orders on 28 November 2022 that the father be removed as a party to these proceedings and that there is to be no Respondent in these proceedings, it is not necessary to make an order to dispense with Rule 3.02 for the father to be joined as a respondent. If however it were necessary, I am satisfied that it would be in the interests of justice to dispense with compliance with Rule 3.02. As such, the father would not be a respondent and orders dispensing with rules that would otherwise flow from Rule 3.02 are not necessary – such as the requirement for pre-action procedures and service of documents.
The grounds upon which I would be satisfied to dispense with the rules that otherwise make the father a party to the proceedings and that would bring the proceedings to his attention are as follows. They are the same grounds that (in the event I am wrong as to the primary approach) I would be satisfied to hear and determine the application ex-parte and undefended.
I accept the mother’s evidence, which includes corroboration by way of extracts from criminal and family violence order proceedings and the child’s psychologist, as to the existential risk that the father poses to the mother and the child. There is other corroborating evidence attesting to the father’s lack of remorse and persistent victim blaming. Having accepted that evidence, it follows that providing the father with the knowledge that the child has changed her name would assist the father in any future endeavour to find and approach the mother or the child. There is no offsetting benefit to the child.
On the evidence and having regard to the paramountcy principle in s 60CA of the Act and Division 12A of the Act and the principles for conducting child-related proceedings in s 69ZN (in particular principles 1 and 3), I am satisfied that it is in the best interests of the child for the application to be heard and determined ex-parte and undefended. I also find that in the circumstances of this case the welfare of the child overrides the father’s right to natural justice.
In Zalsman & Blendall [2020] FamCA 292, Hartnett J considered an application in nature and circumstances similar to this case. Orders were made ex-parte and undefended but the distinguishing feature in that case was that the Court was satisfied that the father was aware of the proceedings but did not seek to participate in them.
Generally, the authorities stand for the proposition that it can be appropriate to proceed ex-parte in rare and limited circumstances. Most cases are concerned with interlocutory proceedings but in Stowe & Stowe (1981) FLC 91-027 at 76,259 (albeit a property case) the Full Court of the Family Court extended the principles to a later hearing.
There is, in my view, a stronger line of authority with respect to final hearings in the Full Court of the Family Court’s long standing decision in Separate Representative v J H E and G A W (1993) 16 Fam LR 485.
The majority (Nicholson CJ and Fogarty J) said [at 498]:
Proceedings in relation to the welfare of children are not strictly adversarial, having regard to the court's obligation to treat the welfare of the child as the paramount consideration: M v M (1988) 12 Fam LR 606; [1988] FLC 91-979. This overriding principle governs the procedure as well as the substantive issues.
And at [499]:
In J v Lieschke (1986-7) 162 CLR 447 the High Court held that a court must take account of the nature of the jurisdiction being exercised in determining the content of the principles of natural justice to be applied.
In the exercise of its jurisdiction to determine disputes relating to the custody, guardianship or welfare of, or access to a child, the Family Court has obligations to regard the child's welfare as paramount (s 64(1)(a)), to protect the child from harm (s 64(1)(b)(a)), and to make “such order in respect of those matters as it considers proper” (s 64(1)(c)). The rights of the disputants to natural justice are therefore qualified to the extent that those rights encroach on or are in conflict with these obligations.
And [at 502]:
Whilst natural justice will require that the parents are given all reasonable opportunity to present the evidence relevant to support their “case”, it will not justify an unlimited right to do so at the expense of the interests of the children.
Whilst still agreeing with the orders of the majority, Walsh J took a different route which included [at 511]:
I doubt that the discussion about whether the welfare of the child principle overrides notions of natural justice is appropriate at all. Principles of natural justice or perhaps more aptly, the requirement that there be a fair trial, do not authorise the infliction of physical of psychological damage to a child or any other person.
I have also had regard to the factors listed in Rule 5.11(b). Whilst they are in contemplation of interlocutory proceedings only, they are nevertheless a useful resource. So far as each factor is relevant, they fall in favour of the applicant whereby:
(a)There is no prejudice to the father in the circumstances where the mother already has sole parental responsibility; and
(b)On the mother’s evidence there is likely to be hardship or danger to the child should the father be provided with notice of the application, and, there is no plausible scope for evidence that may be adduced by the father that could possibly undermine the mother’s evidence.
The change of name and issuing of a passport.
For the reasons already stated, it is not necessary to consider whether or not it is in the best interests of the child to provide for her change of name and to be issued with a passport. If however it were necessary, I am satisfied that it would be.
I accept the mother’s evidence, which includes corroboration by way of the child’s psychologist, that there is no contact between the child and the father, their relationship was characterised by family violence, the child has moved to a new town where she has been exclusively known by her preferred name and is establishing a life there for herself, the change of name is supported by the child’s psychologist and the mother who has already changed her own surname to match the child’s preferred name.
The child wants the mother to withdraw the application in the event the father is to be alerted to it. The ICL submitted that the child’s view is considered and mature. As well as the primary need for protection upon the father’s release, the ICL reports the child anticipates drawing strength and comfort from the circumstances of being able to determine and control if and when there is to be any contact with the father in the future.
I have also had regard to the factors frequently considered in determining whether there should be any change to a child's name identified by Foster J in Reagan & Orton [2016] FamCA 330 [at 34] all of which fall in favour of the change to the child’s name:
(a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
(b)Any confusion of identity which may arise for the child if his or her name is changed or is not changed;
(c)The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
(d)The effect of frequent or random changes of name;
(e)The contact that the non-custodial parent has had and is likely to have in the future with the child;
(f)The degree of identification that the child or children have with their non-custodial parent; and
(g)The degree of identification which the child or children have with the parent with whom they live.
The Court is required, pursuant to s 65D(1) of the Act, to make such parenting order as it thinks proper. Section 60CA states that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. In determining what is in the child's best interests, the court must consider the matters set out in sub-ss 60CC(2) and 60CC(3).
On application of the evidence to the relevant considerations, it is readily apparent that it is in the child’s best interests that her name be changed. It is also readily apparent that it is in the child’s best interests that a passport be issued in accordance with her entitlement as an Australian citizen.
Making of a suppression or non-publication order.
As has already been identified in these reasons, the mother (and the child) do not want the father to know about this application. In the circumstances where they envisage that at some point the father may deduce that the mother and the child have changed their name, they do not want the father to be able to discover the new name by accessing the Court file, the records of Births, Deaths and Marriages (NSW) or the records of the Australian Passport Office.
With respect to the Court file, the mother seeks the following orders:
Pursuant to ss 102PE and 102PH of the Family Law Act 1975 a suppression order and a non-publication order is made prohibiting and restricting the publication and disclosure of all information that relates to these proceedings and information tending to reveal the identity of or otherwise concerning any party to or witness in the proceedings or any person who is related to or otherwise associated with any party to or witness in the proceedings.
IT IS NOTED THAT the grounds for making the suppression order and the non-publication order are pursuant to section 102PF(1)(c) to protect the safety of both the applicant and the child.
With respect to the records of Births, Deaths and Marriages (NSW) or the records of the Australian Passport Office, the mother seeks the following orders:
The Registrar of Births, Deaths and Marriages is hereby requested to not release the child’s birth certificate to the father at any time or advise him of any details relating to it.
The mother be at liberty to provide a copy of these orders to NSW Births, Deaths and Marriages, and the Australian Passport Office.
On the grounds already identified in these reasons, I am satisfied that a suppression order is necessary to protect the safety of the mother and the child from the father. The competing interests are therefore:
(i)A primary objective of the administration of justice is to safeguard the public interest in open justice (s 102PF of the Act). This is arguably met by making available sufficient reasons for the orders (AK v Western Australia (2008) 232 CLR 438) relative to the justice of the case (Public Service Board (NSW) v Osmond (1986) 159 CLR 656); and
(ii)What form of orders are sufficient to protect the mother and the child from the father, whilst still providing for the orders to be given effect.
The relevant provisions of the Act (which do not limit each other according to s 102PC of the Act) are s 121 – Restriction on publication of court proceedings, and Part VIA – Suppression and Non-Publication Orders.
Section 121 of the Act operates to permit the publication of court proceedings but only in a manner which does not identify the parties, their relatives or their witnesses to a member of the public.
Section 102PE of Part XIA provides, in substance, that in proceedings under the Act, a court may make an order prohibiting or restricting the publication or other disclosure of certain information, notably information that would identify a party or witness or other associated person, or certain information relating to the proceedings.
Norton and Landell (Suppression or Non Publication Orders) [2015] FamCA 125 contains the background to Part XIA and a consideration of issues relating to anonymity. In that case, Tree J [at 17] distilled a number of points from the developing body of authority dealing with these provisions, or their like equivalents under other legislation. The points relevant to this application include (citations omitted):
(a)Any suppression order powers conferred by statute should be construed so as to minimise their intrusion on the open justice principle.
(b)The provisions extend not only to evidence, submissions or other material before the court at the hearing, but also to the judgment resulting from the trial or hearing.
(c)“Necessary” has a high threshold and means something more than convenient, reasonable or sensible. It is not a balancing exercise.
(d)The term “necessary” is not to be given restricted meaning. It has to be interpreted and applied in context, including adverting to potentially irrational and illogical responses to information.
(e)Personal safety of a witness or associated party may be sufficient to supress parts of a judgment, including those parts of the judgment dealing with the application for a suppression order.
(f)In the event that there is even some doubt that a party’s or witness’ safety may be compromised, the party for whose protection the suppression order is to be made is to be given the benefit of that doubt.
(g)The fact that the contemplated outcome may never occur is not fatal to a finding that an order is necessary.
Having regard then to the evidence and circumstances of this case against the principles identified above I find as follows.
Firstly, the reasons for judgment have been written with anonymity at the forefront of mind. Not just from the perspective of a member of the public, but from the perspective of the father. Details from within the evidence and features identifiable as circumstances of this case have been deliberately avoided or generalised for the purposes of attempting to de-identify this case, or at least reducing the chances of it being identified, by the father as much as deemed possible. The final orders issuing in the mother’s new name and without a Respondent (and thereby the father’s name) are a protective measure.
The concern with doing nothing other than allowing for the automatic operation of s 121 is that it does not operate to exclude the father or his agents from direct enquiry to the Court, who as or on behalf of the father (who was also for a period of time the Respondent) might otherwise obtain some standing or liberties with the registry.
The suppression and non-publication orders sought by the mother pursuant to s 102PE of the Act are too broad such that they offend the principle of open justice, and, are likely to create difficulties or liabilities for the mother, the child and the various people with whom it will be necessary to administratively engage with to give effect to the orders.
I am also satisfied that it is inappropriate to make the order sought by the mother which amounts to a mere request to a non-party to the proceedings, particularly where it is possible that adhering to the request may compromise the non-party’s own obligations and duties.
The court file contains the mother’s application, the amended application, the supporting affidavits and written submissions. It is replete with details and references to the child’s circumstances and names. Orders 4 and 5 provide for the Court file to be sealed until further order of the Court which guards against that information being accessed by the father or his agents.
The Order does not include the following documents for the following reasons:
(a)The judgment by this Court under any pseudonym as approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act1975 (Cth). Firstly, this provides for the primary objective of the administration of justice to safeguard the public interest in open justice by making available sufficient reasons for the orders relative to the justice of the case. Secondly, it provides the context and reasons for the order sealing the file to any subsequent enquiry into discharging the suppression order. Thirdly, it provides the mother with a disclosable document in support of any subsequent or consequential application she may need to make in the future. For example, an application for a suppression order with respect to the records of Births, Deaths and Marriages (NSW) which are presumably otherwise obtainable by the father in that jurisdiction.
(b)The sealed orders of this Court to the mother in the limited circumstances which are obviously necessary. By making the notation referring to s 121 of the Act directly below the Order, it is intended to bring to the attention of any person to whom it is necessary for the mother to provide a copy of the sealed orders that their subsequent publishing or dissemination of the sealed orders may constitute an offence.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 1 December 2022
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