DONNE & DONNE
[2018] FCCA 2887
•12 October 2018
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. |
| Cases cited: Sammarra & Rostem [2015] FamCA 358 Hogan v Australian Crime Commission (2010) 240 CLR 651 Matthews v R (N02) [2013] NSWCCA 194 Fairfax Digital Australian & New Zealand Pty Ltd v Ibrahim (2012) 263 FLR 211 |
| 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 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.
The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.
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.
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.
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.
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.
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.
Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.
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.
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:
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
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
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
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.
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:
1.1.1to prevent prejudice to the proper administration of justice; and
1.1.2to 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.
IT IS NOTED that publication of this judgment under the pseudonym Donne & Donne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9115 of 2018
| MS DONNE |
Applicant
And
| MR DONNE |
Respondent
REASONS FOR JUDGMENT
These reasons do not concern the substantive parenting proceedings but concern an application by the Chief Commissioner of Victoria Police (“the Commissioner”) that these proceedings be conducted by way of closed court and that suppression orders be made.
The parties did not consent to nor oppose the application. The primary concern for the parties was the fact that the Commissioner prepared a confidential affidavit, which I have now seen, but they have not. Both Counsel for the parties raised concerns about whether or not material in the confidential affidavit will impact on the Court’s consideration of the best interests of the child. I will return to that issue.
The Commissioner submits that s.121 of the Family Law Act 1975 (Cth) (“Family Law Act”) whilst providing some protection does not go as far as a suppression order. This is because s.121 refers to publication whereas a suppression order includes disclosure. Section 102PC explicitly states s.121 and Part XIA do not limit each other.
I heard the application in a closed court and after hearing submissions from the parties and the Commissioner I indicated that I would make the orders the Commissioner sought and would deliver written reasons in due course.
Pursuant to s.97(1) of the Family Law Act proceedings are to be heard in open court. However s.97(2)(a) provides upon application by a party or on its own motion the court may order that only the parties, their legal representatives and other persons specified by the court may be present during the proceedings or part of the proceedings. It would not be practicable to close the court for part of the proceedings as it would be difficult to predict when the information the Commissioner is concerned about may be raised. The Commissioner concedes that he does not have standing under s.97, but s.102PE(2) gives the Court power to make any such order as it thinks fit. I am satisfied that in these proceedings it is appropriate to order that the proceedings be heard in closed court.
Part XIA of the Family Law Act deals with suppression and non-publication orders. A suppression order prohibits or restricts the disclosure of information.[1] When the Court makes a suppression order it must state which of the ground(s) the Court relies on. Section 102PF(1) sets out the grounds upon which the Court may make a suppression order or non-publication order. The Court must be satisfied that one or more ground is satisfied. The Commissioner relies on two grounds found at s102PF(1)(a) and (c). Those are that:
a) The order is necessary to prevent prejudice to the proper administration of justice; and
….
c) The order is necessary to protect the safety of any person.
[1] Section 102P of the Family Law Act 1975 (Cth)
The first ground has broad application. The second is directed at the parties in this case.
The provisions in Part XI are not unique to family law proceedings. The Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth) introduced these provisions in all Federal courts.
The position taken by the mother’s Counsel is that he did not consent to the order and that it was a matter for the Court. The father’s Counsel proposed an amendment to the orders but otherwise did not oppose the order. The concern raised by both Counsel for the parties was the fact that there was a confidential affidavit to which neither of them was privy.
In considering whether or not to make the suppression order, the Court must take into account the public interest in open justice as being one of the primary objectives of the administration of justice.
In argument in support of making the suppression order, Counsel for the Commissioner relied on [27] and [28] of the mother’s affidavit filed on 7 August 2018 and the mother’s further and better particulars relied on in the Magistrates’ Court intervention order proceedings which were tendered during the course of the hearing before me. In particular, the first paragraph of page 8 of that document refers to a telephone conversation between the parties on 25 May 2016. I will not refer to the contents of these documents in these reasons. Counsel for the Commissioner also tendered orders made by the Magistrates Court ordering that the proceedings be closed pursuant to s.30 of the Open Courts Act 2013 (Vic) (“Open Courts Act”) and suppression orders pursuant to s.17 of the Open Courts Act. Counsel for the Commissioner pointed out that both parties were represented by counsel in the Magistrates’ Court of Victoria and that they consented to those orders being made. He was therefore somewhat surprised that the parties did not consent to the orders being made in family law proceedings.
With respect to the application by the Commissioner for suppression orders pursuant to Part XIA of the Family Law Act, Counsel for the mother relied on the decision of Justice Hogan of Sammarra & Rostem [2015] FamCA 358. That case involved very different circumstances. In that case the mother sought a suppression order with respect to the disclosure of any information with respect to the identity of the parties or witnesses in the proceedings, any information about the evidence, documents and/or information by the father to authorities, law enforcement agencies, police and governments in country C. The Court found that such orders were unenforceable and as such unnecessary.
The father’s Counsel submitted s.102P(1)(a) requires that the order is necessary. He submitted that the material the Commissioner relies on does not establish that it is necessary to make the order. Given these submissions made by the mother’s counsel, I considered that that it was necessary for me read the contents of the confidential affidavit.
In Sammarra & Rostem Hogan J did refer to the meaning of necessary in s.102PF of the Family Law Act. She stated that what is necessary depends on the individual circumstances of the case and the nature of the orders sought. It is not enough that the orders sought are reasonable or convenient. It is also not a balancing exercise. The Court must be satisfied whether the orders are necessary or not.[2] What is necessary will depend on the context of the individual case. In Fairfax Digital Australian & New Zealand Pty Ltd v Ibrahim (2012) 263 FLR 211, Bathurst CJ and Basten J each commented that the term necessary should not be construed narrowly. Baster J also observed that the concept of the administration of justice includes considerations and consequences for future cases as well and not just the immediate case before it. This could include a variety of circumstances such as victims of crime for blackmail, witnesses to crimes and informers being unwilling to come forward due to safety concerns if their identities are not protected.
[2] Her comments echo what many other authorities have stated, including the High Court in Hogan v Australian Crime Commission (2010) 240 CLR 651; Matthews v R (N02) [2013] NSWCCA 194 at [5].
Hogan J also referred to the decision of Justice Griffiths in A on behalf of B v State of NSW (Department of Education and Training) [2013] FCA 331 and discussion with respect to whether or not suppression orders were necessary to prevent prejudice to the administration of justice. In that case, Griffiths J was satisfied that the suppression order was necessary to prevent prejudice to the administration of justice as if the order was not made and the identities of the minor plaintiff and her litigation guardian were made known it would discourage others in similar circumstances from accessing the courts for fear their identities and highly sensitive and personal matters would be revealed. Griffiths J referred to the pleadings which raised sensitive matters about the plaintiff’s “past life, mental state and, equally troubling, the minor’s own personal conduct over several years”.
The Commissioner relied on the decision of the Queen v Abdul Nacer Benrika & Ors [2007] VSC 283 for the proposition that the Court may consider a confidential affidavit without granting access to the affidavit to the parties’ legal practitioners. That was a criminal case where Bongiorno J was asked to determine an application by the accused to inspect the documents in the possession of the Commissioner for Police. The existence of that document was disclosed by the prosecutor as part of its disclosure obligations. The Commissioner objected to the document being produced and inspected by the accused on public interest immunity grounds. The document was a taped interview. The Commissioner objected to the document being inspected by any of the accused as if the contents of the interview, including the identity of the person interviewed, became public it would be detrimental to public interest. In that case, the Commissioner sought to rely on an affidavit by a police sergeant which annexed the transcript of the interview. The affidavit was not served and Counsel for the Commissioner sought an order that the affidavit remain confidential to the Court and that he be permitted to make submissions on it in camera.
Bongiorno J said at [17]:
Distasteful as the idea of confidential evidence and submissions are to any court in our system of justice there are occasions where the open enunciation of the reasons for claiming immunity will itself destroy or significantly impair the interest which is sought to be protected. And, of course, that circumstances cannot be discussed openly for the same reason. I decided that it was appropriate that the affidavit be at least examined on a confidential basis before proceeding further.
Whilst Bongiorno J was concerned with claims about public interest immunity, not suppression orders, his comments are equally applicable to this case. I was satisfied that it was appropriate to read the confidential affidavit and I adopted that same process.
Counsel for the Commissioner’s submitted there was sufficient material for the Court to be satisfied that it was necessary to make the suppression order without relying on the confidential affidavit.
The mother’s Counsel argued that conditions could be placed on Counsels’ inspection of the confidential affidavit which would address the Commissioner’s concerns. The Commissioner opposed that course relying on the Supreme Court of Victoria’s Court of Appeal decision of Mark Ryan v State of Victoria [2015] VSCA 353. [170] and [171] are of particular relevance:
[170] With respect to the power of the County Court to restrict access to the documents in dispute to legal practitioners alone, I consider that the difficulties identified by the Full Federal Court in Seymour were general ones associated with release of material only to legal representatives. The principal difficulty identified is the compromising effect such a restriction can have on the relationship between a lawyer and his or her client. French, O’Connor and North JJ were alive to the difficulties that the release of documents to counsel alone can bring. They said:
In Jackson v Wells … Wilcox J gave consideration to a submission that documents for which public interest immunity was claimed and which had grounded the issue of telecommunications interception warrants, be made available to the legal representatives of the parties. His Honour said:
I gave this submission anxious consideration. It was a course apparently considered by the High Court in Alister, although ultimately not adopted. As I have indicated, I would have welcomed the assistance of counsel upon the content of the documents. The applicants would, no doubt, have felt more satisfied that the documents were rigorously examined by the Court if their counsel had been given the opportunity to take the Court through the documents. But, in the end, I rejected the proposal. It involves a number of problems. Without reflecting in any way upon the integrity of any counsel or solicitor, difficulties are likely to arise where counsel appearing in, and advising their client in respect of, protracted and complex proceedings, acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure. Weighing the assistance likely to be obtained from counsel’s submissions against the sensitivity of the material, it seemed better not to accede to [the] suggestion.’
[171] While the question addressed by the court in Seymour was whether counsel alone should be permitted to have access to the documents before the immunity claim was determined (which they rejected), it is clear that the problems such access raised, most particularly the inhibition on counsel from giving full and frank advice to the client, have general application.
It is not uncommon to make orders placing restrictions on inspection and copying of sensitive subpoenaed material but in those cases lawyers are not restricted from showing and discussing the contents of the documents with their clients and obtaining instructions.
When the matter continued after the lunch adjournment, Counsel for the Commissioner advised that he had updated instructions to withdraw the application in the event I determined that some sort of access to the confidential affidavit should be granted to the parties’ or their legal advisors.
Having considered the contents of the confidential affidavit and the submissions made before me, I am satisfied that the affidavit should not be made available to the parties’ legal representatives for inspection and as requested I will return the confidential affidavit to Counsel for the Commissioner when these reasons are handed down.
The mother’s Counsel submitted that the nature of family law proceedings are very different to other types of proceedings in that parenting proceedings the best interests of the child is paramount. The application by the Commissioner is not made pursuant to Part VII of the Family Law Act. Section 60CA only applies to parenting orders. I must be satisfied that the orders are necessary based on the two grounds I have referred to above, not whether or not these orders are in the child’s best interests.
I am satisfied that the orders sought by the Commissioner are necessary to protect the safety of the parties and that the orders sought are necessary to prevent prejudice to the administration of justice. There are important public interest issues with respect to the proper administration of justice that concern the community generally, not just the parties. The police rely on assistance from the public with respect to information in various contexts which assists the police to investigate crimes and perform their obligations to the community. It is important that members of the public are able to provide information confident that the fact they have done so remains confidential and that the police are protective of this. It does not matter whether or not the information is reliable and whether or not the information assists the police. These concerns are relevant to the public interest generally and not just individuals who contact police with information.
Section 102P(2) requires the court to ensure that a suppression or non-publication order only operate for so long as necessary. The Commissioner seeks orders to be in place as the same period as the orders made in the Magistrates Court. I accept that as a reasonable period.
Furthermore, having considered the confidential affidavit, I have decided that the parties’ legal representatives having access to the confidential affidavit will not advance the substantive proceedings.
If further information comes to light the parties may make a further application in due course.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 12 October 2018
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