FEDERAL CIRCUIT COURT OF AUSTRALIA
| DONNE & DONNE | [2018] FCCA 2887 |
| Catchwords: PRACTICE AND PROCEDURE – Application for the proceedings to be conducted in closed court – application by third party for suppression orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62G(2), 65DAA, 69ZW, 97(1), 97(2)(a), 102P, 102P(1)(a), 102P(2), 102PC, 102PE(1), 102PE(2), 102PF(1)(a), 102PF(1)(c), 102PI, 121, pt XIA, XI. |
| Applicant: | MS DONNE |
| Respondent: | MR DONNE |
| File Number: | MLC 9115 of 2018 |
| Judgment of: | Judge Harland |
| Hearing date: | 18 September 2018 |
| Date of Last Submission: | 18 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2018 |
ORDERS
The proceeding is adjourned for Interim Defended Hearing on 7 December 2018 at 9.30am.
All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >
Liberty to apply be granted to the parties and the Chief Commissioner of Police.
The Chief Commissioner of Police be excused from attending all further occasions except for the handing down of the reasons with respect to the orders made today.
Pursuant to s.68L(2) of the Family Law Act1975, the child [X] born 2010 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:
forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;
a)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;
b)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and
c)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.
The child live with the mother.
By 4:00pm on 2 October 2018, the mother and father file and serve any further affidavit upon which they seek to rely.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the child attend upon Dr A for the purposes of a private family report to be paid by the parents in equal shares with such report to be released by 29 November 2018.
The family report deal with…
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- Case
- [2018] FCCA 2887
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including the need for independent representation for the child, the arrangements for a private family report, and the disclosure of certain information. Additionally, the court considered applications for the proceedings to be conducted in closed court and for suppression orders to protect the safety of individuals and the proper administration of justice.
Harland J made a series of orders addressing these issues. The proceeding was adjourned for an interim defended hearing. The child was to be independently represented, with Victoria Legal Aid requested to arrange this. The child was ordered to live with the mother. A private family report was to be prepared by Dr A, with specific matters to be addressed, including the child's views, contact arrangements with the father, and considerations under sections 60CC, 61DA, and 65DAA of the *Family Law Act 1975*. The court also requested documents and information from the Department of Health and Human Services concerning suspected abuse or family violence affecting the child. Crucially, orders were made pursuant to ss.102PE(1) and 102PE(2) of the *Family Law Act 1975* to prevent disclosure of specific information and to restrict attendance at the proceedings, with these orders being necessary to prevent prejudice to the administration of justice and to protect the safety of any person.
Orders
Orders of the court
1.
The proceeding is adjourned for Interim Defended Hearing on 7 December 2018 at 9.30am.
2.
All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2017/022017.
3.
Liberty to apply be granted to the parties and the Chief Commissioner of Police.
4.
The Chief Commissioner of Police be excused from attending all further occasions except for the handing down of the reasons with respect to the orders made today.
5.
Pursuant to s.68L(2) of the Family Law Act 1975, the child [X] born 2010 (“the child”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:
6.
forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;
a) within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;
b) the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and
c) the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.
7.
The child live with the mother.
8.
By 4:00pm on 2 October 2018, the mother and father file and serve any further affidavit upon which they seek to rely.
9.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the child attend upon Dr A for the purposes of a private family report to be paid by the parents in equal shares with such report to be released by 29 November 2018.
10.
The family report deal with the following matters:
a) any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
b) the interim and longer term contact arrangement between the child and the father;
c) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
d) any other matters that the family consultant considers important to the welfare or best interests of the child.
11.
The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.
12.
Within seven days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:
a) all relevant applications, responses and affidavits filed by that parent in these proceedings;
b) the s.69ZW report; and
c) any intervention or restraining orders currently in force and any material filed by the husband and wife in the intervention order proceedings.
13.
The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.
14.
If either parent or the independent children’s lawyer requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven (7) days’ notice in writing.
15.
Upon the family report being provided to the court, the court will provide a copy to each party (or if represented the party’s lawyer) and to any independent children’s lawyer in the proceedings.
16.
Unless a party objects, in writing, within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
a) a children’s court;
b) a child protection authority;
c) a state or territory legal aid authority; and
d) a convener of any legal dispute resolution conference.
17.
Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.
18.
Pursuant to section 69ZW of the Family Law Act 1975 is it requested the Department and Human Services provide to the Court the following documents and information:
a) any notifications to the Department of Health and Human Services of suspected abuse of the child to whom the proceedings relate or of suspected family violence affecting the child including but not limited to any intake reports;
b) any assessments of the Department of Health and Human Services’ of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;
c) any reports commissioned by the Department of Health and Human Services in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and
d) in the event the Department of Health and Human Services have an ongoing investigation in relation to the child to whom the proceedings relate, any recommendations for the future arrangements of the child taking into account the orders sought by the parties in these proceedings.
19.
Neither party nor the independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Health and Human Services without the Court’s leave.
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
20.
Pursuant to s.102PE(1) of the Family Law Act 1975 (Cth), there be no disclosure, by publication or otherwise, of:
a) any reference (including any reference in a document subsequently filed in this proceeding) to:
i. the information contained in paragraphs 27 and 28 of the affidavit affirmed by the Applicant on 7 August 2018, and filed in this proceeding on 9 August 2018; and/or
ii. the information contained in the Applicant's initiating application, filed in this proceeding on 9 August 2018, at paragraph 3 under the heading 'Interim Orders sought'; and
b) any evidence or submissions regarding:
i. the information contained in paragraphs 27 and 28 of the affidavit affirmed by the Applicant on 7 August 2018, and filed in this proceeding on 9 August 2018; and/or
ii. the information contained in the Applicant's initiating application, filed in this proceeding on 9 August 2018, at paragraph 3 under the heading 'Interim Orders sought';
except where the disclosure is made by one or more parties to a non-party, and the disclosure to the non-party is necessary for the non-party to give evidence in this proceeding; and
21.
Pursuant to s.102PI of the Family Law Act 1975 (Cth), the order referred to in paragraph 1 above will expire on 29 August 2028 or pursuant to a further court order; and
22.
Pursuant to s.102PE(2) of the Family Law Act 1975 (Cth), only the parties to the proceeding, their legal representatives, legal representatives of the Chief Commissioner, and such other persons as are specified by the Court may be present during the proceeding; and
23.
Pursuant to s 102PE(2) of the Family Law Act 1975 (Cth), only the parties to the proceeding and their legal representatives, and any family report writer involved in the proceeding, may inspect the court record in this proceeding.
24.
Upon the reasons being given in this matter with respect to today’s orders, the confidential affidavit will be returned to the Chief Commissioner of Police, subject to the parties being at liberty to make application upon notice to the Chief Commissioner of Police for the affidavit to be released to the parties on such terms as sought by the parties.
AND THE COURT NOTES THAT:
A. Orders 18 – 21 herein are made on the grounds that they are necessary:
1.1.1 to prevent prejudice to the proper administration of justice; and
1.1.2 to protect the safety of any person.
B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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