Department of Family and Community Services and Jordan & Ors
[2012] FamCAFC 147
FAMILY COURT OF AUSTRALIA
| DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & JORDAN AND ORS | [2012] FamCAFC 147 |
| FAMILY LAW ─ APPEAL ─ STATUTORY INTERPRETATION – Appeal against an order that the Director General of the Department of Family and Community Services (NSW) disclose the identity of a notifier – Whether the Family Law Act 1975 (Cth) s 69ZW empowers a court exercising jurisdiction under the Act to override protections afforded to notifiers by State and Territory legislation ─ Scope for application of s 29 Children and Young Persons (Care and Protection) Act 1998 (NSW) to proceedings under the Act – Where the trial Judge concluded that the operation of s 69ZW is not constrained by s 29 Children and Young Persons (Care and Protection) Act 1998 (NSW) – Meaning of the word “notification” – An order pursuant to Family Law Act 1975 (Cth) s 69ZW(1) must not exceed the limitations on power imposed by ss 69ZW(2) and (3) – Where s 29 of the State Act and not s 69ZW was the governing provision - Halsen and Nasser Talbet (2010) 44 Fam LR 248 applied – Where the child welfare agency and the Court obliged to protect the identity of notifiers in accordance with the Act and State or Territory legislation – Where s 69ZW does not empower a court exercising jurisdiction under the Act to override protections afforded to notifiers by State and Territory legislation – Where it was impermissible to authorise the Independent Children’s Lawyer to question the parties about whether they would consent to disclosure of the notifier’s identity – Where s 69ZW did not provide the Court with power to order the Director General to disclose the identification of the notifier – Where disclosure of the identity of the notifier was not critical – Where consideration not given to second limb of test – Appeal allowed. FAMILY LAW – APPEAL ─ COSTS ─ No order for costs – Certificates to issue. |
| Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29 Family Law Act 1975 (Cth) s 69ZW Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) |
| Curnow v O’Sullivan (1976) 11 ALR 465 Department of Human Services & Brigham and Anor [2010] FamCA 937 Dunstan & Jarrod and Anor [2009] FamCA 480 Jordan & Callaghan [2012] FamCA 147 Halsen and Nasser Talbet (2010) 44 Fam LR 248 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Northern Territory of Australia v GPAO and Others (1999) 196 CLR 553 Parker & Parker [2012] FamCAFC 33 |
| APPELLANT: | Director-General, Department of Family & Community Services |
| 1ST RESPONDENT: | Ms Jordan |
| 2ND RESPONDENT: | Mr Callaghan |
| 3RD RESPONDENT: | Mr A |
| 4TH RESPONDENT: | Ms S |
| 5TH RESPONDENT: | Ms P |
| INDEPENDENT CHILDREN’S LAWYER: | Moore Solicitors |
| FILE NUMBER: | NCC | 102 | of | 2010 |
| APPEAL NUMBER: | EA | 129 | of | 2011 |
| DATE DELIVERED: | 7 September 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Coleman & Ryan JJ |
| HEARING DATE: | 13 March 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 November 2011 |
| LOWER COURT MNC: | [2011] FamCA 1070 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Anderson |
| SOLICITOR FOR THE APPELLANT: | Crown Solicitor’s Office NSW |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms McMahon |
| SOLICITOR FOR THE 1ST RESPONDENT: | Little & Associates Solicitors |
| FOR THE 2ND RESPONDENT: | No appearance for or on behalf of the 2nd Respondent |
| FOR THE 3RD RESPONDENT: | Mr C appeared in Person |
| FOR THE 4TH RESPONDENT: | Ms S appeared in Person |
| COUNSEL FOR THE 5TH RESPONDENT: | Ms E Lawson |
| SOLICITOR FOR THE 5TH RESPONDENT: | Salvos Legal Humanitarian Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Burns |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Moore Solicitors |
Orders
That the appeal be allowed.
That insofar as Order 1 dated 7 November 2011 required the Director General of the Department of Family and Community Services to disclose the identity of the notifier of a notification made on or about 20 April 2011, that order is set aside.
That there be no order for costs in relation to the appeal.
That the Court grants to the Appellant (Director General, Department of Family and Community Services) a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant (Director General, Department of Family and Community Services) in respect of the costs incurred by the Appellant (Director General, Department of Family and Community Services) in relation to the appeal.
That the Court grants to the First Respondent (Ms Jordan) a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the First Respondent (Ms Jordan) in respect of the costs incurred by the First Respondent (Ms Jordan) in relation to the appeal.
That the Court grants to the Fifth Respondent (Ms P) a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Fifth Respondent (Ms P) in respect of the costs incurred by the Fifth Respondent (Ms P) in relation to the appeal.
That the Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Jordan and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 129 of 2011
File Number: NCC 102 of 2010
| Director-General, Department of Family and Community Services |
Appellant
And
| Ms Jordan |
First Respondent
And
| Mr Callaghan |
Second Respondent
And
| Mr A |
Third Respondent
And
| Ms S |
Fourth Respondent
And
| Ms P |
Fifth Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the Director General, Department of Family & Community Services (“Director General”) against an order made by Cleary J on 7 November 2011 for production to the Court of a notification of suspected abuse dated 20 April 2011 and associated documents. Her Honour’s order required that the Director General disclose the notifier’s identity. This order was made in the context of parenting proceedings to be determined in accordance with the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Twelve days after this appeal was heard her Honour made final parenting orders for which she published reasons for judgment under the pseudonym Jordan & Callaghan [2012] FamCA 147. Although it would appear that her Honour’s final orders could be said to render this appeal moot, as none of the parties has sought to relist the appeal it is appropriate that we publish our reasons.
So as to identify the various parties it is necessary to simultaneously traverse the facts which provide context to the appeal. Excluding the Independent Children’s Lawyer (“ICL”), the proceedings involved six parties who contested orders in relation to parental responsibility and allied parenting orders in relation to two children. The children are C who was born in 2003 and T who was born in 2008. The children are brothers who have the same mother (Ms Jordan) (“the mother”) and different fathers. The father of C is Mr A (“C’s father”) who is the third respondent. The father of child T is Mr Callaghan (“T’s father”) who is the second respondent. Until August 2010 the children lived with the mother.
In July 2010 the Director General intervened in parenting proceedings which, at that time, were undertaken in the Federal Magistrates Court. Upon intervention, an interim order was made whereby in relation to the mother’s care of the children, she was required to accept supervision from the Director General.
On 4 August 2010, a further interim order was made whereby parental responsibility for the children was allocated to the Minister for Community Services. The Director General was to determine where the children would live. Two days later the Director General removed the children from the mother and placed them with Mr and Ms P. Mr and Ms P are T’s paternal grandparents and Ms P is the fifth respondent (“T’s grandmother”).
Central to the proceedings and decisions made to supervise and remove the children are allegations of family violence and the risk of exposure to family violence. It was alleged that both fathers have perpetrated family violence from which the mother had failed to protect them and that she too may have perpetrated family violence. Essentially, it is because of these matters that the Minister removed the children from the mother and they were placed with Mr and Ms P. Also, that when placed with Mr and Ms P, the Director General instructed them to manage and supervise (not necessarily personally) each father’s time with their respective sons. In relation to the children’s mother, the children’s time with her was managed by the Director General and supervised by an agency.
It is noteworthy that the instruction as to supervision given to T’s grandparents was given in the context of the Director General’s knowledge that T’s father lived with his parents and thus both children. As will be discussed later, an employee of the Director General (who subsequently acquired greater authority in management of the children’s case) considered that it was inappropriate for the children to live in the same home as T’s father.
On 20 April 2011, the Director General received a notification on its Helpline to the effect that T’s grandparents permitted C to attend “overnight sleepovers with his paternal grandmother [Ms S]”. Ms S (“C’s grandmother”) is Mr A’s mother and the fourth respondent. The gravamen of the notification is that:
… during these visits [C’s grandmother] took [C] to [C’s father’s] residence and left him to stay overnight, unsupervised. During the phone call the caller stated that in their opinion [C’s grandmother] was afraid of [C’s father] and would not be able to deny [C’s father] requests for access to [C].
This is the notification at issue in this appeal. It was not anonymous and made by an identifiable reporter.
The notification was investigated by the Director General. To this end, C’s grandmother and T’s grandparents were interviewed. They told the Director General that by arrangement C stayed overnight with his grandmother on 26 December 2010 during which time he saw his father in her presence but did not stay with him overnight. Otherwise, T’s grandparents facilitated contact between C and his father at their home. According to T’s grandparents, this was supervised by T’s grandmother. The information obtained during these interviews is consistent with information obtained from C during an interview undertaken by the Director General on 17 March 2011. It follows that the third hand hearsay contained in the notification was at odds with the information provided by C and the grandparents. No further investigation of the notification was undertaken by the Director General. So that it is clear the notifier was not interviewed. Self evidently the notifier’s source of “knowledge” was neither questioned nor established.
Pursuant to an order made on 20 May 2011, Dr L (“the single expert”) completed an assessment and report in relation to the children. By way of background, the Director General provided a large volume of material to the single expert. This included advice that:
Despite assurances to the contrary, it has been established that [T’s paternal grandmother] is not supervising the contacts between [C’s father] and [C]. [C] also has contact with his paternal grandmother, [C’s paternal grandmother] allegedly on about a weekly basis.
Reference to “it has been established” is to the notification. According to the case worker who instructed the single expert, the Director General was satisfied that the notification was evidence of the asserted facts. In fairness to the single expert he was not informed of the flimsy foundation for those asserted facts. Thus, he proceeded on the basis that the asserted facts could be accepted as already proved and did not require further investigation by him.
At the end of a 76 page report, the single expert expressed the opinion:
… that the best outcome for these children is that parental responsibility devolves to the minister for Human Services, and that no parent be responsible for these children. In the absence of appropriate kin care placements (and we do not consider the [T’s grandparents] as an appropriate kin care placement for anything but the short term), we believe the best outcome for these children is that Department of Human Services search for an appropriate long term foster placement in which the two children can be adequately cared for and each have supervised contact with their mother and respective fathers. To avoid further disruption, we propose that the current situation be maintained despite our reservations, that the two boys stay with the [T’s grandparents’] family until an appropriate placement is found, that supervised contact (to be supervised by an independent agency) occur between [C’s father] and [C] [sic], that supervised contact continue as is currently the situation with the mother and [Ms J], but that such a situation be time limited and that urgent attempts to locate a long term foster placement, preferably close to where the mother is living in … occur…
The single expert’s report is dated 11 June 2011 and, it would appear, was provided to the parties and ICL shortly thereafter.
Armed with the single expert’s report, the notification and concern “that [T’s father] was still living with his parents and having unsupervised contact with the children”, on 1 August 2011, the Director General removed the children and placed them with authorised foster carers. At the same time, notice and confirmation of this move was provided to the other parties.
The children were in foster care when the final hearing commenced.
Nine days into the hearing before her Honour, of the Court’s own motion, the order under consideration in this appeal was made. The order is set out below.
(1)Pursuant to s 69ZW of the Family Law Act 1975 (Cth) the Director General of the Department of Family and Community Services (the Department) shall forthwith provide to the Court:
a)the notification made on or about 20 April 2011 to the Department of suspected abuse of either or both of [the children], or of suspected family violence effecting the children or either of them, including but not limited to the identity of the notifier on that occasion;
b)any assessments by the Department of investigations into the notification or the findings or outcomes of those investigations;
c)any reports commissioned by the Department in the course of investigating the notification. (our emphasis)
As a precursor to the above order, her Honour directed counsel for the ICL to ascertain whether the parties agreed to disclose if he or she was the notifier. Upon hearing that all parties (excluding the Director General) agreed to do so, she ordered the Director General to disclose to the Court whether the notifier was a party and, if not, the identity of the notifier. The Director General complied, albeit the notifier’s identity was not released to the parties or admitted into evidence.
As was mentioned earlier, twelve days after this appeal hearing, her Honour made final parenting orders. The effect of her Honour’s orders is that the children returned to live with T’s grandparents and T’s grandmother has parental responsibility. The only qualification is, in relation to contact between the children and their mother and T and his father, parental responsibility was allocated to the Minister for the Department of Family and Community Services. C is to have overnight time with his grandmother one weekend each calendar month and with his father during the day once a month and at other times identified in the orders.
Grounds of appeal
In the Notice of Appeal filed 9 November 2011 the Director General raised six grounds of appeal. Because the grounds centre upon the application of s 69ZW of the Act and s 29(1)(e) and (f) of the Children & Young Persons (Care and Protection) Act 1998 (NSW) (“the State Act”) they were argued globally. We will adopt the same approach. Essentially, the grounds assert errors of law in relation to her Honour’s application of those provisions.
The grounds are set out below:
1.That her Honour Justice Cleary erred in law by requesting the parties to the proceedings to give their consent for their identity to be disclosed if they were the reporter of the notification of 20 April 2011 to the Department of Family and Community Services (“Department”), and asking the Counsel for the Director-General (over objection by her Counsel) whether the reporter was a party contrary to the provisions of s29(1)(e) and (f) of the Children and Young Persons (Care and Protection) Act 1998.
2.That her Honour Justice Cleary erred in law by requiring the provision of the notification of 20 April 2011 to the Department of suspected child abuse or suspected family violence including but not limited to the identity of the reporter.
3.That her Honour Justice Cleary erred in law by requiring the provision of the notification of 20 April 2011 to the Department of suspected child abuse or suspected family violence including but not limited to the identity of the reporter, when it was not critical to the proceedings and contrary to s. 69ZW(3) and s. 69ZW(6) of the Family Law Act 1975, and s. 29(1)(f) and s. 29(2) of the Children and Young Persons (Care and Protection) Act 1998.
4.That her Honour Justice Cleary erred in law by requiring the provision of the notification of 20 April 2011 to the Department of suspected child abuse or suspected family violence including but not limited to the identity of the reporter, when it would not prejudice the proper administration of justice to fail to disclose the identity of the reporter as required by s. 69ZW(3) and s. 69ZW(6) of the Family Law Act 1975, and s. 29(1)(f) and s. 29(2) of the Children and Young Persons (Care and Protection) Act 1998.
5.That her Honour Justice Cleary erred by requiring the provision of the notification of 20 April 2011 to the Department of suspected child abuse or suspected family violence including but not limited to the identity of the reporter, by failing to make the necessary findings and provide adequate reasons for the order namely (a) that it was critical to the proceedings, and (b) it would prejudice the proper administration of justice to fail to make the disclosure of the identity of the reporter as required by s69ZW(6) of the Family Law Act 1975, and s. 29(2) of the Children and Young Persons (Care and Protection) Act 1998.
6.That her Honour Justice Cleary miscarried the exercise of her discretion by requiring the provision of the notification of 20 April 2011 to the Department of suspected child abuse or suspected family violence including but not limited to the identity of the reporter in circumstances where the bona fides of the reporter were not an issue, and particularly in circumstances where the notifier did not consent to disclose their identity.
The orders sought by the Director General in the Notice of Appeal ask that this Court declare that production of the notice and allied material that is the subject of the order made by her Honour is not required.
Reasons for decision
It is unnecessary to recite in detail her Honour’s reasons for decision. Her Honour explained that on the eighth day of the hearing an issue arose about the notification and whether its contents were reliable. Her Honour said at [30] this occurred against a background of:
… allegations of serious misconduct in relation to all parties. Doubts have been raised as to their motivations for being involved in these proceedings, motivations such as obtaining Centrelink benefits, revenge in relation to another party, or merely to assist another party rather than having a genuine first instance application…
Reference was made to allegations against the parents of family violence and from which the children were not protected. Her Honour said at [45] and [46]:
I have now heard the evidence of all three parents, [T’s] paternal grandparents and [C’s] paternal grandmother and aunt. All but the aunt are applicants for residence and/or substantial time with one or both of the children.
I consider that in these circumstances the details of the report is critically important to the proceedings. The credit of several key parties is under consideration. The issue of supervision trust and whether [C] in particular, was put at risk are all central issues in final determination.
These are the findings which underpin her Honour’s order and her earlier orders that counsel for the ICL ascertain whether the parties agreed to disclose if he or she was the notifier. Then, upon hearing that all parties agreed to do so, her direction to the Director General to tell her whether the notifier was a party and, if not, the notifier’s identity.
Turning to the legislative framework for the order for production of the notification and the identity of the notifier, her Honour discussed whether s 69ZW(4) of the Act rendered s 29 of the State Act in relation to identification of the notifier irrelevant. Her Honour observed that s 29 of the State Act facilitated an order that required disclosure of the identity of the notifier by reference to a test virtually identical to s 69ZW(6) of the Act. Consistent with the decision by Murphy J in Dunstan & Jarrod and Anor [2009] FamCA 480, her Honour correctly decided that s 69ZK(2) of the Act preserves the capacity of State courts to make orders under a State child welfare law notwithstanding the making of an order by this Court (or indeed any court exercising jurisdiction under the Act). However, her Honour went further [9] and concluded that s 69ZK(2) “does not mean that s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) operates to the exclusion of Federal legislation.” Applied to s 29 of the State Act [11] this meant that the operation of s 69ZW was not constrained by s 29. According to her Honour this conclusion is consistent with s 69ZW(4). It is this conclusion that lies at the heart of this appeal.
In our view, her Honour correctly rejected a submission made by counsel for the Director General that s 69ZW(3) of the Act conferred on the Director General a discretion to not produce documents or information even if before production the identity of the person who made a notification is removed. Her Honour correctly observed that s 69ZW(3) “carefully protects notifier’s details”, which it does and enables the Director General to provide the documents or information in a form which does not identify the notifier.
Reference was made by her Honour to a decision of Cohen J in Department of Human Services & Brigham and Anor [2010] FamCA 937 where, in the context of an objection to the production of documents pursuant to a subpoena, his Honour considered the interplay of s 69ZW of the Act and s 29 of the State Act. Her Honour referred to Cohen J’s reasoning at [21] where his Honour said:
A reading of section 69ZW(1), (2), (3) and (4), section 69ZK(2)(c) of the Act and section 29(1)(e) of the state Act leads to the conclusion that the intention of both the state and federal legislation is clear. It is to uphold and advance the public policy in question. The primary object of the Act is to ensure that the identity of notifiers or reporters of relevance is not disclosed, except with the consent of the notifier, unless it is already shown by evidence to be important in determining the best interest of the child, subject of the notification, or affected by it, to know the identity of the notifier so, for example, that persons’ reasons for notification and bona fides can be tested, and possibly any investigation and decision undertaken as a result of a notification that can be tested.
We understood her Honour to adopt Cohen J’s remarks as identifying the public policy considerations and the tensions which must be balanced in a particular case. As her Honour explained at [24]:
… competing objects, that is the very important necessity to offer such protection to notifiers that they feel confident to come forward without fear of retribution, balanced against the competing interests of a particular child or children in a particular proceeding where sufficient evidence is already known to provide a context for the information that is sought…
It was explained by her Honour that this was the situation she faced.
Finally her Honour would seem to have applied part of the test for disclosure of a notifier’s identity contained in s 69ZW(6) and made the order under challenge. Whether her Honour identified the correct section and if she did, actually applied it is a matter of contention. Her Honour said at [46] and [47]:
46.I consider that in these circumstances the details of the report is critically important to the proceedings. The credit of several key parties is under consideration. The issue of supervision trust and whether [C] in particular, was put at risk are all central issues in final determination.
47.The Department itself seeks an order for parental responsibility, with an expressed intention to maintain the children in their current foster placement. On the evidence of at least one Departmental officer, the April report has influenced the Department’s decision, both as to removal and as to future arrangements.
Legislative framework
Before the key legislative provisions are discussed it is useful they are fully set out.
Section 69ZW of the Act provides as follows:
(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.
(Our emphasis)
Section 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is set out below.
(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:
(a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and
(b)no liability for defamation is incurred because of the report, and
(c)the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and
(d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):
(i)care proceedings in the Children’s Court,
(ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,
(iii) proceedings in relation to a child or young person before the Supreme Court or the Administrative Decisions Tribunal,
(iv) proceedings before the Victims Compensation Tribunal or the Guardianship Tribunal,
(v) proceedings under the Coroners Act 2009, and
(e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and
(f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with:
(i) the consent of the person who made the report, or
(ii) the leave of a court or other body before which proceedings relating to the report are conducted,
and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.
(1A)A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.
(2)A court or other body cannot grant leave under subsection (1) (f) (ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.
(3)A court or other body that grants leave under subsection (1) (f) (ii):
(a)must state the reasons why leave is granted, and
(b) must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed.
(3A)The protections given by this section to a person who makes a report apply to:
(a)any person who provided information on the basis of which the report was made, in good faith, to the person, and
(b) any person who otherwise was in good faith concerned in making such a report or causing such a report to be made,
in the same way as they apply in respect of the person who actually made the report.
(4)Subsection (1) (f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report.
(4A)Subsection (1) (f) also does not prevent the disclosure to a law enforcement agency of the identity of the person who made the report (the reporter), or information from which the identity of the reporter could be deduced, if:
(a)the identity of the reporter, or the information, is disclosed in connection with the investigation of a serious offence or reportable conduct alleged to have been committed or done against a child or young person, and
(b)the disclosure is necessary for the purposes of safeguarding or promoting the safety, welfare and well-being of any child or young person (whether or not the victim of the alleged offence).
(4B)However, subsection (4A) does not apply unless:
(a)a senior officer of the law enforcement agency to which the disclosure is made has, before the disclosure is made, certified in writing that obtaining the reporter’s consent would prejudice the investigation of the serious offence or reportable conduct concerned, or
(b) the person or body that makes the disclosure has, before making the disclosure, certified in writing that it is impractical to obtain the consent of the reporter.
(4C)The person or body that discloses to a law enforcement agency the identity of the reporter, or the information from which the identity of the reporter could be deduced, is required to notify the reporter of the disclosure unless:
(a) it is not reasonably practicable in the circumstances to do so, or
(b) the law enforcement agency to which the disclosure is made has advised the person or body that notifying the reporter would prejudice the investigation of the serious offence or reportable conduct concerned.
(5)(Repealed)
(6)In this section:
court includes a court exercising federal jurisdiction.
….
Discussion
The first question to be answered is whether the notification is a notification of “suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child”. It is common ground that the notification did not relate to abuse but rather family violence. We are conscious that the definitions of abuse and family violence have been recently amended. However, because these proceedings were commenced prior to 7 June 2012 the new definitions introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 (Cth) did not apply.
Thus for purpose of this proceeding “family violence” means:
Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety. (s 4)
Counsel for the mother submitted that the notification related to unsupervised time between C and his father. Although C’s time with his father was supervised so as to protect him from exposure to family violence, it was argued that this needed to be distinguished from the subject matter of the specific notification. The point being that notwithstanding the issue in the proceedings, it was necessary to consider whether an individual notification was a notification of the type referred to in s 69ZW(2)(a).
We agree that each notification requires individual consideration. However, it does not follow that unless specific reference is made in the notification to suspected abuse or suspected family violence, s 69ZW(2)(a) would not apply. It is not within the scope of this appeal for us to consider whether the Act in its entirety is remedial legislation: Curnow v O’Sullivan (1976) 11 ALR 465. However, s 69ZW is clearly a beneficial provision, designed to protect a class of persons constituted of people who make notifications to child welfare agencies. As was explained by Coleman J in Parker & Parker [2012] FamCAFC 33, a remedial or beneficial provision should “be construed ‘generously’ to ensure that the ‘mischief’ which the legislation seeks to address is remedied [see D C Pearce & R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011 at page 30].” The use of the words “suspected” in s 69ZW(2)(a) and in relation to family violence “affecting” the child themselves permit a broad interpretation such that even if a notification does not mention abuse or family violence, where these are the reasons for supervision, a notification which alleges that supervision has failed will be caught by s 69ZW.
It follows that the mother’s argument that the notification was not protected by s 69ZW fails.
The next issue is whether s 69ZW of the Act empowers this court (or any court exercising jurisdiction under the Act) to order a prescribed State or Territory agency to produce documents or information which disclose the identity of the notifier that arise from such a notification (of suspected abuse or family violence) in relation to the subject child. Allied to this is the scope for application of s 29 of the State Act to proceedings under the Act.
The first matter to be observed is that s 29 of the State Act is concerned with the protection of persons who report to the Director General (amongst others) information in relation to a child or young person. The section addresses a number of issues including professional standards and indemnities and makes notifications inadmissible in most courts. In relation to the inadmissibility of notifications, this provision does not apply inter alia to care proceedings in a Children’s Court and proceedings in relation to a child under the Act.
Importantly s 29 of the State Act addresses how the Director General is to manage and protect the identity of a notifier and the circumstances under which disclosure is permitted. Of particular relevance to this appeal are ss 29(1)(e) and (f). The former provides that a person, including the Director General, cannot be compelled to produce or disclose a notification. But for s 69ZW(4) this section would be in conflict with an order for production under s 69ZW. However, as will be discussed later the effect of s 69ZW(4) of the Act is that an order pursuant to s 69ZW will mean that s 29(1)(e) of the State Act has no effect. In other words in this respect the Federal order will prevail and the Director General must produce the ordered documents.
For the avoidance of doubt, an order pursuant to s 69ZW(1) must not exceed the limitations on power imposed by ss 69ZW(2) and (3).
Section 29 (1)(f) of the State Act provides that the Director General must not disclose the identity of a notifier or material from which the identity of the notifier could be deduced. That is unless the notifier consents or a court grants leave. In furtherance of this protection, s 29(1)(f)(ii) prohibits questions being asked in court proceedings which could identify a notifier. This embargo relates to questions which would actually name the identifier as well as those to which the answers would enable the identity to be deduced.
Critical to this appeal, ss 29(2) and (3) set out the requirements and test which must be applied by a court (including a federal court) before a s 29(1)(f)(ii) disclosure question may be asked or an order made for production of notification material which discloses the identity of the notifier to the court (not the parties) before which the proceedings (in relation to the child) are conducted.
Section 69ZW of the Act is concerned with evidence relating to child abuse and family violence. In particular (in child related proceedings) the Court’s power and the circumstances under which an order may be made to an agency (such as the Director General) is to provide to the Court documents or information in relation to those types of notifications. The types of material to which an order for production may be addressed are set out in s 69ZW(2); namely:
(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.
Nothing in ss 69ZW(1) and (2) entitles this Court to require production of material that identifies or could identify a notifier.
Section 69ZW(3) specifically preserves to the agency the decision about whether to provide material that identifies the person who made the notification. It follows that it is for the agency to decide whether to volunteer such information. As has been discussed, in this case the Director General is required to decide whether to volunteer this material by reference to s 29 of the State Act.
So that it is clear s 69ZW(3) provides a statutory limitation to the reach of ss 69ZW(1) and (2).
By s 69ZW(4), if a law of a State or Territory would hinder or prevent an agency from complying with a s 69ZW order, that law will have no effect. It follows that reference in s 69ZW(4) to “complying with an order” is to an order made in accordance with ss 69ZW(1) and (2). In other words s 69ZW(4) operates to render ineffective a law of a State or Territory which would prevent or hinder production of notifications and information but only if that order did not offend s 69ZW(3). Thus, by way of example, the effect of s 69ZW(4) is that an order pursuant to s 69ZW would override s 29(1)(e) of the State Act.
Some argument was addressed to s 69ZW(5) and the effect of that provision in relation to admissibility of the notification. Providing as it does that the Court must admit into evidence material received pursuant to s 69ZW upon which it intends to rely, the subsection could be described as otiose. In essence it does no more than remind a Court that judicial decisions must be based on evidence. Whether material produced in compliance with an order made pursuant to s 69ZW should be admitted into evidence is not addressed. As with all parenting proceedings, subject to the Act, admissibility is to be determined in accordance with the Evidence Act 1995 (Cth).
Other than the two circumstances referred to in s 69ZW(6), that subsection prohibits the Court from disclosing the identity of a notifier or information that could identify that person. To the extent that s 69ZW deals with disclosure of identifying material it can be seen that the section addresses disclosure of information produced to the Court by the Court (not the agency). Whether and if that material is to be disclosed is decided by reference to ss 69ZW(6) and (7). Excluding where the notifier consents, s 69ZW(6)(b) imposes a strict two part test that must be satisfied before disclosure is ordered. Clearly the severity of the test is designed to ensure that there is no disincentive to notification of child protection concerns.
In this case it is clear that her Honour addressed the first limb, namely that the identity and information was critically important but did not go on to consider whether failure to order disclosure would prejudice the proper administration of justice. In our view and notwithstanding that her Honour said the notifier’s identity was of critical importance, she did so primarily on the basis that this would assist her to make credit findings. We are unable to agree that disclosure for this reason would satisfy the test. In this regard we agree with the Director General that in most cases the identity of the notifier will not be relevant. What is relevant is the findings and investigation which resulted from the notification.
We also agree with the submission made by counsel for the mother that her Honour was required to engage in an active intellectual process in which each limb of the test received genuine consideration (see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [105] ). Had her Honour considered the decision of Johnston J in Halsen and Nasser Talbet (2010) 44 Fam LR 248 it would have been clear that s 29 of the State Act and not s 69ZW was the governing provision. This would also have reminded her Honour of the important second limb of the State (and Federal) test and that she was ultimately required to balance critical importance to determination of a child’s best interests with public policy considerations that ensure an effective system of child protection notification.
There is no attempt in s 69ZW to provide procedural fairness to the notifier. Rather, s 69ZW(7) affords procedural fairness to the agency. This is a matter of some significance and reinforces the notion that the agency and the Court are obliged to protect the identity of notifiers in accordance with the Act and State or Territory legislation.
It follows that s 69ZW does not empower a court exercising jurisdiction under the Act to override protections afforded to notifiers by State and Territory legislation. As we trust the above analysis makes clear, the scheme of s 69ZW is to preserve to the States and Territories the power to legislate in relation to disclosure of identification material entrusted to the agency. Consistent with Northern Territory of Australia v GPAO and Others (1999) 196 CLR 553, by virtue of s 79 of the Judiciary Act 1902 (Cth), s 29 of the State Act is picked up in effect as a surrogate law of the Commonwealth. Although reference to the Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 was unnecessary to determine the meaning of s 69ZW of the Act, we observe it is consistent with our interpretation.
It follows that in each State and Territory, in relation to children where child abuse or family violence is suspected, there is a coherent system of protection offered to persons who report their concerns to child welfare agencies. In each place, child welfare agencies will thus have a uniform system for how, where and in what circumstances information which does or could disclose the identity of a notifier is handled.
Thus notifiers to State and Territory agencies are protected to the extent that those States and Territories determine. To the extent that s 69ZW of the Act has a role to play it is by virtue of the limitations imposed on the documents and information amenable to a production order (which does not include the identity of a notifier) and to the extent required renders inoperative a contrary State or Territory law. Section 69ZW ensures that prior to disclosure of volunteered information that does or could identify a notifier there is another assessment of whether that information should be further disclosed. This further disclosure can only be ordered in accordance with the strict test and procedural fairness requirements of the section. Although this will mean that an equivalent test (s 29 and s 69ZW) will be applied twice, namely whether pursuant to State legislation to order disclosure to the Court and then, pursuant to the Act whether to disclose to the parties, the public policy imperatives that underlie this issue renders these safeguards appropriate.
This outcome causes no harm to individual children or the Court’s ability to protect the interests of children. If investigation of information provided by a notifier is unproductive, in an evidentiary context knowing or not knowing the identity of the notifier changes nothing. At that point there is no more utility in knowing the identity of the notifier than there is in knowing that a notification has been made. If the notification results in an investigation which establishes evidence of risk that evidence can be admitted in an orthodox way. Otherwise a decision must be made about whether the information provided by the notifier is of such importance that the notifier should be asked by the child welfare agency to give evidence or alternatively an order made under the State Act which would facilitate this outcome. Applied in this manner these provisions promote the interests of children as a class as well as the individual child.
Conclusion
In relation to this case, therefore, her Honour was bound by the embargo against questioning referred to in s 29(1)(f) of the State Act. It was thus impermissible to authorise the ICL to question the parties about whether they would consent to disclosure of the notifier’s identity. We would also observe that in a case concerned about family violence and where the notification stated that one party was afraid of another, the approach adopted was fraught with the risk that if the notifier was a party that person would be placed in an untenable and potentially unsafe position.
Section s 69ZW did not provide her Honour with power to order the Director General to disclose the identification of the notifier. In relation to this matter her Honour was required to apply the provisions of the State Act, in particular s 29(1)(f), (2) and (3). We are strongly of the view that the Director General was correct in her contention that disclosure of the identity of the notifier was not critical and, that failure to order disclosure would not prejudice the proper administration of justice.
We will thus allow the appeal.
Costs of this appeal
At the conclusion of the hearing, we took submissions concerning costs of the appeal. In the event the appeal was successful, those parties who were represented and had incurred legal costs in the appeal, sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeal. Certificates may be granted in respect of the costs of an appeal where the appeal has succeeded on a question of law to the respondent (s 6), and also to the appellant provided no order for costs has been made under s 117 of the Family Law Act 1975 (Cth) (s 9).
This appeal has succeeded on a question of law and there are no circumstances which would justify an order for costs.
It is appropriate that all parties to the appeal who were represented are granted costs certificates for the appeal.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman & Ryan JJ) delivered on 7 September 2012.
Associate:
Date: 7 September 2012
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