Director Or Public Prosecutions of Victoria and Douglas

[2010] FamCA 1039

FAMILY COURT OF AUSTRALIA

DIRECTOR OR PUBLIC PROSECUTIONS OF VICTORIA & DOUGLAS [2010] FamCA 1039

FAMILY LAW – COURTS AND JUDGES – Application to use Family Court file in Supreme Court proceedings

Family Law Act 1975 (Cth)

APPLICANT: Director of Public Prosecutions of Victoria

RESPONDENT: Mr Douglas

FILE NUMBER: MLC 8589 of 2010

DATE DELIVERED: 13 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Beale

SOLICITOR FOR THE APPLICANT: Office of Public Prosecutions Victoria

COUNSEL FOR THE RESPONDENT: Mr Goodman, and by leave Ms Jenkin for the respondent’s daughter

Orders

1. That the Registry Manager of the Melbourne Registry of the Family Court of Australia forthwith copy the whole of the file in the matter of DOUGLAS.

2. That upon the completion of the copying of the whole of the original file, it be released to the Director of Public Prosecutions to be returned upon completion of any legal proceedings involving the husband in the Supreme Court of Victoria.

3. That in addition to generally being able to use the file in the said proceedings in the Supreme Court of Victoria, pursuant to s 121 of the Family Law Act 1975 (Cth), the Director of Public Prosecutions in the State of Victoria is permitted to publish the details of that file to the extent that they are necessary for the said trial notwithstanding such publication may identify either of the parties to the proceedings from 1986.

4. That the application filed 13 September 2010 is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Director of Public Prosecutions Victoria & Douglas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8589 of 2010

DIRECTOR OF PUBLIC PROSECUTIONS OF VICTORIA

Applicant

And

MR DOUGLAS

Respondent

REASONS FOR JUDGMENT

1. This is an application in the judicial duty list brought by the Director of Public Prosecutions of the Office of Public Prosecutions Victoria.  This arises out of a court case in this Court in 1986 between Mr Douglas and his then wife Mrs Douglas.  As I understand the position, Mr Douglas is facing a charge of murder in the Supreme Court of Victoria, and that the trial is to commence in early 2011.  The proceedings in this court ended a number of years ago, and the Director of Public Prosecutions, pursuant to rule 24 of the Family Law Rules was given permission some time ago to inspect the Court file.  That decision was made having regard to the relevant provisions of Rule 24(13) by the Registry Manager. 

2. The Director of Public Prosecutions now wants to go one step further and use that information in the Supreme Court of Victoria in the trial.  Quite properly, as is required under the criminal trial processes, the husband, Mr Douglas, has been given all of the documents from the court file in the Prosecution’s brief in any event.  I see no reason why the proper processes should not be applied here, and the order be made in the interests of public policy that the Supreme Court have all of the necessary information, which is no doubt protected by the rules of evidence in any event. 

3. The second application is an oral application made today by a daughter of the parties to that marriage – no written application or affidavit material has been filed.  The daughter, who was 13 years of age at the time of the proceedings in this Court, opposed the application being made by the Crown to the release of that file.

4. For the same reasons, it is a matter of public policy that the Director of Public Prosecutions should be able to present any evidence that will either establish the innocence or guilt of the accused. 

5. It seems to me that the daughter of the parties probably fits within rule 24 in any event being a person who has an interest in a case not so much because she wants to know what happened in 1986 in the proceedings, but what she told various people – if that is the case – back in 1986. 

6. The reason why there is no specific rule setting out that files can be used in other courts is that it is contemptuous of one court to simply use a file in another.  I think the Director of Public Prosecutions, having established earlier that there was a policy reason to inspect the file, and now wants to use it, has taken the proper course of seeking to present the file in the usual way in the criminal trial. 

7. Again, quite properly, after discussion, the Director has indicated that he will make a copy of the file available to the daughter of the parties. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  22 November 2010