Department of Human Services and Brigham & Anor

[2010] FamCA 937

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF HUMAN SERVICES & BRIGHAM AND ANOR [2010] FamCA 937

FAMILY LAW – EVIDENCE – Objection to subpoena

OBJECTING PARTY: The Director-General, New South Wales Department of Human Services

RESPONDENT: Ms Brigham

RESPONDENT: Mr Brigham

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW  

FILE NUMBER: SYC 4446 of 2008

DATE DELIVERED: 21 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 28 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Singleton of Counsel

SOLICITORS FOR THE APPLICANT: Crown Solicitors Office

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER: Mr Dura of Counsel

SOLICITORS FOR INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

COUNSEL FOR THE RESPONDENTS Mentioned by consent

Orders

1. It is hereby declared that the Director-General is not required to produce the originals of the documents comprised in Exhibit “FCM1” to the affidavit of Ms Y sworn 27 August 2009 other than Exhibit “X” in answer to the aforesaid order of Judicial Registrar Loughnan or the said subpoenas or any of them.

2. In the event that there has been no appeal from Order 1., forthwith on the expiration of the time for appeal the documents comprised in Exhibit “FCM1” other than Exhibit “X” are forthwith to be returned to the Director-General and other than by the Director-General or her agent the said documents are not to be inspected by any person.

3. It is ordered that on the time for appeal from the Orders herein expiring, in the event that there has been no appeal the Independent Children’s Lawyer and/ or the mother are hereby granted leave to obtain a date and time before a deputy registrar for the production to the Court of the original of Exhibit “X”.

4. The Director-General shall forthwith produce the original of Exhibit “X” in answer to Order 3. of Judicial Registrar Loughnan made 31 March 2009, the subpoena issued on behalf of the mother on 23 December 2008 and the subpoena issued on behalf of the Independent Children’s Lawyer on 8 April 2009 to the deputy registrar on the date and at the time appointed pursuant to Order 3.

5. It is hereby declared that the copy document marked Exhibit “X” and initialled by Cohen J and contained in a sealed envelope marked not to be opened or inspected without specific order of the Court shall not be opened or inspected other than by or on behalf of the Director-General, New South Wales Department of Human Services, without specific Order of the Court unless there has been no appeal from these orders and the time for appeal has expired.

6. The Director-General and/ or her agent are hereby granted leave to inspect Exhibit “X”.

7. Costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym  Department of Human Services & Brigham and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC4446 of 2008

THE DIRECTOR-GENERAL, NEW SOUTH WALES DEPARTMENT OF HUMAN SERVICES

Objecting Party

And

MS BRIGHAM

Respondent

And

MR BRIGHAM  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before the Court is an issue over whether the Director-General Department of Community Services (NSW) now called the Department of Human Services should produce certain documents in answer to two subpoenas, one issued on behalf of the mother on 23 December 2008, the other on behalf of the Independent Children’s Lawyer on 8 April 2009. The Director-General argues that the combined effect of ss69ZK and 69ZW of the Family Law Act and ss 3, 24, 25, 27 and 29 of the Children and Young Persons (Care and Protection) Act 1998 is that she cannot be compelled to produce or disclose those documents. The Independent Children’s Lawyer seeks production and disclosure of the withheld documents. The mother and father took no active part in this aspect of the dispute.

2. On 31 March 2009 a judicial registrar made orders after a defended hearing. One of these orders; Order 3., required the Director-General to “provide such information within the records of the Department of Community Services relating to the subject children, that falls within the categories of subparagraphs (a), (b) and (c)” of s 69ZW(2) of the Family Law Act. The Director-General was not a party to the proceedings and was not notified that such an order would be sought or might be made.

3. The subpoena issued on 23 December 2008 seeks from The Proper Officer, Department of Community Services, “All notes, records, diary entries, computer entries and documents relating to [M Brigham] d.o.b. […].11.2002 and [G Brigham] d.o.b. […].7.2004.”

4. The subpoena issued on 8 April 2009 seeks the production to the Court from the Director-General of:

   “1.Any notifications of suspected abuse of the children or of suspected family violence affecting the children.

   2.Any assessments of investigations into a notification of suspected abuse or suspected family violence, or the findings or outcomes of those investigations.

   3.Any reports commissioned in the course of investigating a notification of suspected abuse of the children and suspected family violence affecting the children.

   4.All referrals, correspondence, memoranda, notes, emails, records and files in relation to:-

   a)   [M Brigham] born […] November 2002; and

   b)     [G Brigham] born […] July 2004.”

5. On 28 September 2009 the Director-General filed an Application in a Case. In it she seeks an order pursuant to s 69ZW(3)(b) of the Family Law Act that Order 3. made on 31 March 2009 “is not to be read to require” her to provide to the Court specified documents. Her ground is that these identify the person(s) who have made a notification to her of suspected child abuse of or suspected family violence toward one or both of the parties’ children. A second order sought by the Director-General is that pursuant to s 29(1)(a) of the Children and Young Persons (Care and Protection) Act she be excused from production of the same specified documents in answer to either of the subpoenas on the same grounds as relied on for the other order sought.

6. The Director-General relied on an affidavit from a Legal Officer in her Department to the effect that each of the documents to which the application relates identifies the maker of a notification within the meaning of that word in s 69ZW(3)(b) and registers such notification or records a telephone conversation relating to a notification or records the assessment of a notification in respect of one or both of the parties’ children. There is no issue over the accuracy of the Legal Officer’s evidence.

7. Counsel for the Director-General made written submissions on the issue now before the Court. He said that most of the documents ordered to be produced or required to be produced to the Court pursuant to the subpoenas have been produced, but that 16 documents have been withheld pending the Court’s ruling. Copies of these 16 documents are Exhibit “FCM1” to the Affidavit of Ms Y sworn 27 August 2009 (FCM1). Those were in a sealed envelope. The Independent Children’s Lawyer conceded I should read them. I have done so. The Director-General submits that because of the legislation in force in both the State of New South Wales and the Commonwealth she has a discretion not to produce these documents either on subpoena or in response to an order to her to produce them if they identify the maker of a “report” within the meaning of that word in the Children and Young Persons (Care and Protection) Act (the State Act) or the maker of a “notification” within the meaning of that word in s69ZW(3)(b) of the Family Law Act (the Act) about an identified child or identified children.

8. “Report” is defined in s3 of the State Act to mean a report under s 24, s 25 or s 27 of that Act. Sections 24, 25 and 27 all allow or require people with reasonable grounds to suspect a child is at risk of significant harm to report their suspicions to the Director-General. Section 69ZW of the Act permits the Court to make an order in children’s proceedings requiring a prescribed State or Territory agency to provide it with documents or information, but because of s 69ZW(3)(b), an agency is not required to provide documents or information which identifies the person who made a “notification”. “Notification” in subsection (3)(b), when read with subsection (2)(a), must mean a notification about suspected child abuse of a child to whom the children’s proceedings relate or of suspected family violence affecting that child.

9. My careful reading of all the documents in FCM1 leads me to conclude that all documents except one identify a person who is not a member of the Department headed by the Director-General and, therefore, who is not her agent who has made a report under the State Act and a notification under the Act. The exception is an Assessment Record dated 13 October 2008 at 09:44 from a person who is clearly on the face of the record an employee of the Department and is therefore an agent of the Director-General. The legislation, both state and federal, is clearly not intended to protect the identity of DOCS workers such as the relevant agent. Her report is not a report within s3 of the State Act. It is in response to a report or notification within the meaning of those terms in the respective acts and is not to notify the Director-General of suspicions but to confirm that there is a reasonable basis for those suspicions. It is advice on whether the case should be included in DOCS Early Intervention Program (EIP). Accordingly, I shall not, irrespective of my findings as to the questions of law in issue, excuse the Director-General from producing this Assessment Record. I shall initial and mark this report Exhibit “X” and put it in a different sealed envelope to be able to be opened by any party once the time for appeal from this judgment has expired if these has been no appeal from my decision on this document.

10. I have reached this conclusion about Exhibit “X” notwithstanding the provisions of s 29 (1A) of the State Act. That subsection provides that a certificate which on its face appears to be signed by the Director-General to the effect that a document which relates to a relevant child or relevant children is a report as defined by that Act is, subject to evidence to the contrary, such a report. On its face Exhibit “X” does not appear to be such a report, so it is evidence which satisfies me to the contrary to the Director-General’s Certificate that it is not such a report.

11. The written submissions of Counsel for the Director-General are quite straightforward and simple. He says that s 69ZK(2)(c) of the Act preserves the operation of the State Act in relation to the children or, in a specific case, a particular child or particular children. Thus, he submits, ss 24, 25 and 27 provide for the making of reports by members of the public as well as persons in certain positions such as professional people, police officers and counsellors, who come into direct contact with children or indirect contact with them or in contact with a parent in the course of their employment to the Department if they suspect the children have become or are in danger of becoming victims of abuse or have been or are in danger of being exposed to domestic violence. He says the public interest in avoiding situations which could become harmful to specific children is obvious and it is equally obvious that reporting should be encouraged and it should not be discouraged by the potential for disclosure of the identity of the reporter. Such disclosure might be unwanted by the reporter because of the reporter’s relationship with the child or its parents. He argues that, consistently with this position, s 29(1)(e) of the State Act provides that nobody can be compelled in any proceedings to produce a copy of such a report or copy of it or any part of or extract from it or to disclose or give evidence of its contents. Thus, he says, this subsection excuses the Director-General from producing its contents in answer to an order of the Court or a subpoena which requires production before the issue of disclosure is raised. He submits that the Act by s 69ZK(2)(c) overcomes any problem of inconsistency between a state law and federal law where there is both state and federal jurisdiction because it preserves child welfare laws.

12. Section 29 (1)(e) is:

    “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:

    (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,”

    Section 69ZK(2)(c) provides:

    “Nothing in this Act, and no decree under this Act, affects:

    (c) the operation of a child welfare law in relation to a child.”

    “Child Welfare Law” is defined in s 4(1) of the Act to include a law of a State which is prescribed pursuant to Schedule 5 of the Family Law Regulations. The State Act is so prescribed. Thus, s 29(1)(e) is a Child Welfare Law as defined by s 4(1).

13. The next step in Counsel’s submissions canvasses the effect of s 69ZW of the Act. By subsections (1) and (2), that section prima facie permits the Court to make an order in child related proceedings for the provision to the Court of documents or information such as FCM1 about notifications which are equivalent to reports under the State Act by a prescribed State agency. By Schedule 9 of the Family Law Regulations, the Department of Community Services for NSW is such an agency. It has changed its name to Department of Human Services. There is no suggestion it is not the same agency as the Department of Community Services, so I do not regard the name difference as relevant. Section 69ZW(3) exempts from such an order documents or information which “include” the identity of the person who made the notification. Section 69ZW(6) goes further. It prohibits the Court from disclosing the identity of the notifier unless that person consents to the disclosure or the Court is satisfied that both the identity is critically important to the proceedings and that the proper administration of justice will be prejudiced if there is no disclosure. These proceedings have not reached the stage where the Court could make a finding of this nature and there is no suggestion that the reporter or reporters have consented to being identified.

14. It should be said that the subpoena is an order of the Court made by a deputy registrar. Production to the Court of the documents would not amount to disclosure. The Director General, as she in fact has, could produce these documents and at the same time object to their disclosure. Her objection would have to be determined by the Court before disclosure could be permitted or refused.

15. The order made by the Judicial Registrar is more contentious.

16. Counsel for the Independent Children’s Lawyer made extensive written submissions. It is convenient to list their essential aspects. These are:

    a)That the Director-General failed, contrary to her obligations, to produce the documents specified in each of the subpoenas and in the order of 31 March 2008.

    b)That s 69ZW(2) of the Act gave the Judicial Registrar the power to make the order he made on 31 March.

    c)That neither the Court nor the party seeking an order under s 69ZW is required to give the Director-General notice to permit her to resist the making of such an order before the order is made.

    d)That there is no inconsistency between s69ZW of the Act and s29 of the State Act, so it is possible for the Director-General to obey the requirements of both acts.

17. There is no issue that the Director-General failed to produce the documents despite the legal fallacy involved as a result of the existence of FCM1 and my having inspected these documents. There is no point in taking the stance, although it may on one view of the facts be strictly correct, that because the documents have been produced the only issue is whether they should be made available to the Independent Children’s Lawyer and the mother and father for inspection. This is because s 29(1)(e) of the State Act is in such terms that, if it applies here, it excuses the Director-General from the compulsion to produce the reports as well as from disclosure of their contents and s 69ZW(3) excepts agencies, including the department here from the requirement “to provide the Court with:…..(b) documents or information that include (sic) the identity of the person who made the notification”. To take the stricter stance would create a situation where the same arguments as those which are pressed here would have to be canvassed later on the issue of disclosure by way of inspection.

18. The Independent Children’s Lawyer argues that the order made by the Judicial Registrar was properly made and that it should have been complied with by the Director-General because there was no need for her to be given proper notice of it for her obligation under it to be effective. He says the power given to the Court by the Act in s 69ZW(1) to make an order in child-related proceedings requiring a prescribed state agency, of which the Department of Human Resources is one, to provide the Court with documents or information specified in the order is not limited by the Act to be subject to notice to the agency before an order is made so no notice is necessary or failure to give notice does not undermine the order so the Director-General was bound to produce the documents pursuant to the order.

19. Irrespective of the issue created by the lack of notice, I cannot accept this proposition because s 69ZW(3) provides that “nothing in the order” permitted by subparagraph (1) is to be taken to require the agency to provide the Court with documents or information that includes the identity of the person who made the notification. Subsection (2) specifies that subsection (1) can only apply to orders for production of documents or information in three categories. These are:

    a)notifications of suspected abuse;

    b)assessments by the agency of investigations ….. those notifications or the findings or outcomes of such investigations; and

    c)reports by or for the agency in the course of investigating such a notification.

20. That s 69ZW(4) seems to contradict the principle which subsection (3) seems to support is quite extraordinary in view of s 69ZK and s 29 of the State Act. Subsection (4) provides that nothing in any State law has the effect of hindering or preventing an agency from complying with a subsection (1) order. It is worthy of note that subsection (1) only permits orders in child related proceedings. Section 69ZW is in Part VII of the Act. Yet s 69ZK seems to contradict this. Section 69ZK(2)(c) provides that nothing in the Act, including a decree (which includes an order), affects the operation of a child welfare law in relation to a child. Section 29 is a State Child Welfare Law. Section 29 is directed at upholding the public policy of encouraging people to make relevant reports, and certainly not discouraging them, by ensuring their identity will not be disclosed as having done so except in exceptional circumstances which cannot yet be shown to have arisen here.

21. A reading of ss 69 ZW (1), (2), (3) and (4), 69 ZK (2)(c) of the Act and s 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 interests 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 can be tested. Such evidence is not available at present. It is a paradox that if the Director-General had been given notice of the order which was sought from the Judicial Registrar she might have placed evidence before the Court.

1. Thus, because such an interpretation is consistent with the intention of the legislation and because s 69ZW is specific in its application to orders for production of a prescribed State agency when compared with s 69ZK(2) which is of general application in relation to child welfare laws, I conclude that the Court can make an order for production of documents by a State agency but that s 29 of the State Act does permit the agency to refuse to produce those documents because s 69ZW(3) does. There is, therefore, no inconsistency between s 69ZK and s 69ZW in relation to whether the Director-General is excused from producing the documents if ordered to by the Court.

2. The legislation specifically excuses production rather than blocks inspection after production to the Court, so the argument that the documents should be produced and there then can be argument over disclosure is of no force and it does not matter whether an agency has been notified in advance or has or has not been given the opportunity to argue its opposition to the order. The agency is able to refuse to produce if it has the ground to do so, then justify its stance if called upon to do so, as has occurred here. There is nothing in s 29 which hinders or prevents the Director-General from complying with the Order made on 31 March 2009 because under s 69ZX(3) it does not have to be complied with. Thus there is no inconsistency between s 69ZK(2) and s 29 on the one hand and s 69ZW(4) on the other.

3. It is common sense that the Federal Legislature might see fit to ensure that, in proceedings, where there has been no order under a state child welfare law, under the Family Law Act in which a child’s welfare is of the paramount importance, all evidence which might be critical to the determination should be available. The Court should not be frustrated in its obligation to ensure that it is in a position to do the best for the child by having the power to make effective orders for the production of that evidence together with provision to ensure that, usually, the public interest to encourage persons to report suspected child abuse and the like protects reporters from disclosure. The State Act is designed to have the same effect if the agency is of the view that the documents sought would disclose the identity of the reporter and that it should not disclose it. The provision of subsections (5), (6) and (7) of s 69ZW do not, in my view, apply where the State authority has chosen not to produce the documents, so I shall not discuss them.

4. Although what I have already said about s 69ZW and s 69ZK is mainly intended to relate to the Judicial Registrar’s order of 31 March, the same considerations apply to production under the subpoenas. Section 69ZW, in giving the Court power to make an “order” requiring production and s 69ZK(2) in referring to the limitation on the power to make a “decree” have application to a subpoena because a subpoena under the Act and Family Law Rules, although not defined, can be nothing other than a decree by way or order of the Court to produce documents or to appear before the Court. At common law a subpoena was a writ which implied a penalty for non-compliance. Writs under the Act or Family Law Rules are provided for by s 34 of the Act but, because of the Rules, the only way, apart from under s 69ZW, the Court can compel production or attendance is by an order which is similar in effect to a subpoena except that it can be issued at the instance of a judge rather than a party. But “decree”, by its definition, includes “an order” and, as I have said, the very form of the subpoenas issued under the Rules amount to orders of the Court. Although it might have been more appropriate for s 69ZW(1) to permit the Court to issue a writ, because the obligation is placed on a non-party to produce, the legislation only permits an order to be made.

5. The issue remains over whether or not the Director-General should be required to produce the document I have marked “X” in view of the failure to afford the opportunity to her to oppose the order for its production. I think the answer to this question is gained from considering the nature of the order which was made by the Judicial Registrar.

6. The Act does not say anything specific to suggest that, because it provides specifically for an order that an authority produce documents, that authority does not have to be given notice that an order which will affect it is being sought. One would ordinarily expect the authority to be entitled to notice so, if it chooses, it can oppose an order being made and, in the absence of notice and not being a party to the proceedings in which an order was made, it would not be bound by it. This is not necessarily the case. Subpoenas are orders which are made by the Court which usually bind the object of the subpoena to compliance with it despite lack of notice and opportunity to oppose it. The compliance required is production of documents, not disclosure of them. Non-compliance with an order for production can be excused ex post facto in a suitable case. The rules provide for proceedings which are appropriate to permit non-production or avoid disclosure on production. They would effectively permit the object; the authority in this instance, to obtain a stay until the issue over production or disclosure is decided (see r 15.31). An order under s 69ZW has a very specific and limited application. Otherwise, it is no different from a subpoena or any order or writ which can be made or issued against a non-party under the inherent power the Court has to make or issue them. Section 69ZW had a specific purpose. The Revised Explanatory memorandum about the amendment which included s 69ZW in the Act makes the purpose clear. It is so, in accordance with the requirements of s 60K and in aid of it, the Court an act expeditiously in fully investigating allegations of child abuse or family violence. It is likely that it is intended to permit the Court, with or without the request of a party to the proceedings for parenting orders, to demand, obtain and see specific documents from government departments such as those which are involved here as early in the conduct of proceedings as reasonably possible to be produced at a time which allows the Court to institute the steps which will best enable it to appreciate the likely validity of the allegations and best protect the child who might be affected if the allegations appear to be substantial.

7. On an order being made, the Department could, as it could have if served with a subpoena, argue that it should not have to produce the document or that the document should not be disclosed. No procedural unfairness would be involved. I think that this is the situation and find that the order of the Judicial Registrar made pursuant to s 69ZW is valid in relation to Exhibit “X”. In any event, each subpoena requests the production of the original of Exhibit “X” and it should be produced in answer to them.

8. In accord with the above I find that the document marked Exhibit “X” is not a “report” to which s 29 (1A) of the Children’ and Young Persons (Care and Protection) Act 1988 applies. I should and shall order the Director-General to produce the original of that document in compliance with Order 3. of Judicial Registrar Loughnan of 31 March 2009 and the subpoenas issued on behalf of the mother and Independent Children’s Lawyer on the time for appeal having expired if there has been no appeal. It is appropriate to grant the mother and/ or the Independent Children’s Lawyer leave to obtain a date for production of that document before a deputy registrar or the Court after the time for appeal from these orders has expired in the event that there is no appeal. It is proper to permit the Director-General or her agent to open the sealed envelope which contains Exhibit “X” and inspect it but not remove it. As to the balance of the documents the Director-General has failed to produce, I should declare that she is not required to produce them.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 21 October 2010.

Associate:     

Date:              21 October 2010