Dunlop and Mackies and Ors
[2015] FCCA 1671
•18 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUNLOP & MACKIES & ORS | [2015] FCCA 1671 |
| Catchwords: FAMILY LAW – Practice and procedure – request for access to court file in proceedings between the mother’s partner and another party – consideration of rule 2.08. |
| Legislation: Family Law Act 1975, s.121 Federal Circuit Court Rules 2001, r.2.08 |
| Rice & Asplund (1978) Fam LR 570 Home Office v Harman [1983] 1 AC 280 Oates & Q and Anor [2010] FamCAFC 202 Echlin & Kagan [2011] FMCAfam 272 Thornton & Workcover Corporation of South Australia [2009] FamCA 449 Commissioner of Taxation & Darling and Anor [2014] FamCAFC 59 Paradoxos & Paradoxos and Anor [2010] FamCA 653 H & M [2013] FMCAfam 141 H & T [2012] FMCAfam 485 |
| Applicant: | MR DUNLOP |
| First Respondent: | MS MACKIES |
| First Interested Party: Second Interested Party: | MR YORK MS DAVIS |
| File Number: | ADC 4188 of 2012 |
| Judgment of: | Judge Harland |
| Hearing date: | 11 June 2015 |
| Date of Last Submission: | 11 June 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 18 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tinning |
| Solicitors for the Applicant: | Adey Lawyers |
| Counsel for the Respondent: | Ms Shorter |
| Solicitors for the Respondent: | Duncan Basheer Hannon Salisbury |
| Counsel for the First Interested Party: | Mr Harley |
| Solicitors for the First Interested Party: | Dixon Gallasch |
| Counsel for the Second Interested Party : | Ms Lindsay |
| Solicitors for the Second Interested Party: | Helen McCance |
ORDERS
That within 7 days of the date of these orders Mr York shall cause his solicitor to provide to the solicitors for the parties in these proceedings the Drug and Alcohol Services South Australia report dated 14 March 2014.
That the application in a case filed on 17 April 2015 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dunlop & Mackies & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4188 of 2012
| MR DUNLOP |
Applicant
And
| MS MACKIES |
Respondent
| MR YORK |
First Interested Party
| MS DAVIS |
Second Interested Party
REASONS FOR JUDGMENT
The respondent father in these proceedings filed an application in a case on 17 April 2015 seeking permission to copy and inspect the entire court file in proceedings ADC 4087 of 2007 which are parenting proceedings between Mr York and Ms Davis.
In order to put this application in context it is necessary to provide a brief background.
Mr Dunlop (the father) and Ms Mackies (the mother) are the parties in these proceedings. They entered into consent orders on 7 August 2013 and on 16 April 2014. The orders made on 7 August 2013 comprehensively deal with parenting arrangements for their three children, X born (omitted) 2005, Y born (omitted) 2007 and Z born (omitted) 2011. The issues which remained outstanding from those orders were the children’s schooling and the increase in Z’s time with his father. The parties entered into further consent orders on 16 April 2014 addressing the increase in Z’s time with his father. It is clear from the notation that the parties had not settled the issue of the children’s school. The notation refers to X and Y remaining at (omitted) primary school unless otherwise agreed or as ordered by the Court.
The mother filed an application on 15 December 2014 seeking to change the children’s schools. The father’s response filed on 3 February 2015 opposes the children’s change of school and seeks to change the children’s living arrangements with the children moving into his primary care.
The competing applications have been listed for a hearing on the schooling issue and a Rice & Asplund argument as to whether the parenting arrangements should be re-examined.
Much of the father’s argument with respect to changing the parenting arrangements turns on the involvement of the mother’s partner with the children. The father relies on things he says the children have told him. He sets this out in some detail in his affidavit. These include the children telling him that Mr York is not allowed to spend time with his children overnight, that Ms Davis has said Mr York “bashed her” and that Ms Davis threw things at Mr York causing scarring to his face.
Before the mother commenced the current proceedings, the father instructed his lawyer to write to the mother’s lawyer seeking information about her partner Mr York. The letter is drafted in terms that are so broad it includes asking about her partner’s hobbies. Given the breadth of the enquiry and the detail being requested, it should not be surprising that no response was received. The breadth of the enquiry could be read as being at worst, controlling and certainly intrusive. In hindsight, it would have been much better to have made a much more targeted inquiry. The application in a case suffers from the same difficulty.
In support of his application in a case the father relied on an affidavit filed by his solicitor on 17 April 2015. That affidavit extracts details from the father’s affidavit where he refers to various things the father alleges the children have said to him about Mr York. In that affidavit it refers to attempts to get consent from the interested parties, which is quite proper. The difficulty with the letter seeking consent to accessing the other file is that it does not seek to limit access to the file in anyway and therefore does not appear to give any consideration to interests of the other parties.
The father’s solicitors also issued a subpoena to SAPOL for Mr York’s police records. Mr York initially objected to that subpoena.
At the argument before me all parties in both matters were legally represented.
At the hearing Mr York no longer objected to the subpoena to SAPOL. I made an order enabling that material to be inspected. That material was tendered and marked as Exhibit A. The material shows the following:
a)Mr York has a poor driving record, dating back to 1996, which has at times involved alcohol. The last driving offence was a conviction for driving under the influence on 13 September 2012;
b)Several incidents between Mr York and Ms Davis in 2007 and 2008 relating to domestic violence orders and complaints that Mr York breached the order by harassing Ms Davis.
c)On 27 March 2008 Ms Davis complained that Mr York physically assaulted her and damaged property. Mr York was arrested and interviewed.
d)Mr York complained that he was assaulted by his father in law in early April 2008. The father in law also made a complaint that the father assaulted him.
e)Ms Davis made a complaint on 22 February 2012 that Mr York attacked her during a handover. The narrative refers to Mr York suffering from a mental health episode and believing the victim was attacking him with a knife. He was taken to hospital then made a complaint that when he returned from hospital Ms Davis assaulted him. Both narratives referred to bruising. Ms Davis later informed police that she was staying at a domestic violence shelter.
f)There are no incidents between Mr York and Ms Davis recorded after this period.
g)The last narrative refers to an incident between Mr York and a neighbour where Mr York was affected by alcohol.
The mother in these proceedings said she did not consent to the father’s application but that primarily it was an issue between the father and the parties in the other proceedings. Ms Shorter did note she is instructed that the mother does not live with Mr York. The SAPOL material refers to incidents which have not resulted in criminal charges. The evidence is untested.
Mr Harley indicated that Mr York relied on a report from DASA in the proceedings with Ms Davis. The DASA report was dated 7 March 2014. Mr Harley did not have instructions to consent to the release of that report as his client was not in court but indicated he would encourage his client to consent to that being released. I am satisfied that the SAPOL records suggest alcohol abuse has been a significant factor for Mr York at times. The DASA report may allay some of the father’s concerns. Given the fact that the SAPOL records are in evidence in these proceedings it is appropriate that the DASA report is too. That will not impinge on the privacy of Ms Davis and her children.
Mr Harley expressed concern at the breadth of the request. He noted that according to the SAPOL records no assault charges were laid and the narratives reflect “he said, she said” allegations. He said there is a need to consider the privacy of Mr York, Ms Davis and their children. Mr Harley quite property said the task for this is the balancing of the competing interests being the privacy of Ms Davis, Mr York and their children against any protection concerns for the children in these proceedings. He said material on the court file in the other proceedings would be prejudicial and not probative as there is a lot of material in the affidavits which are second hand hearsay which is untested. He said there is no family report in the current proceedings. There is no judgment from the previous proceedings as it resolved by consent. He also raised a concern that the children in both proceedings are swapping war stories. He also said that Mr York and the mother do not live together.
Ms Lindsay representing Ms Davis submitted that there are concerning issues of family violence and alcohol abuse. She also refers to the Harman principle but did not expand on this point. A family report was prepared in June 2012 by Dr A. She said her client is concerned to protect herself and her children and for these reasons opposes her court file being accessed.
Ms Tinning for the father says that the SAPOL records heighten her client’s concern because of the references to alcohol, assaults at handovers and mental health issues. She says that her client was to view the file to gain some understanding about what the incidents involved and whether Mr York’s mental health has been assessed. Her client does not accept that the mother is not living with Mr York. She says the SAPOL records do not provide enough information as to the extent of the problems and nor will the Drug and Alcohol Services South Australia report (which she has not seen). She conceded that the court might want to limit the range of documents which should be accessed and also suggested that information about the children of Mr York and Ms Davis; children could be redacted from the 2012 family report but she pressed for access to it and to the court orders because her client is concerned about Mr York’s problematic anti-social behaviour.
Ms Tinning is critical of the mother for not responding to the request suggesting that either it means she is not child focused or does not know the extent of Mr York’s problems.
Ms Lindsay referred to her client having disclosed very personal information about family violence and abuse to the family report writer in the earlier proceedings on the understanding that that information was confidential to the proceedings. What needs to be made clear is that a family report was prepared in the previous proceeding but never tested, the parties entered into consent orders. There has been no testing of any allegations and the current proceedings are not at the stage of a family report being prepared. Ms Lindsay drew an analogy to the subpoenas being issued and the parties giving an implied undertaking that that material is only used for that purpose. This is often referred to as the Harman principle. This principle refers to the implied undertaking given by parties and legal representatives inspecting subpoenaed documents or documents produced on discovery not to use the documents for a collateral purpose: Home Office v Harman [1983] 1 AC 280. She said if the subpoena was issued to the SAPOL in the other proceedings the Harman principle would need to be addressed.
The father says he does not accept that the mother and Mr York are not living together based on what the children have said. Parties need to be cautious about taking what children tell them at face value. It is likely that the children are aware that the father has an interest in hearing about Mr York. It is likely too that the children are aware that their parents cannot agreement about arrangements for them.
The issue was raised as to whether the same judge should hear both proceedings. I accept Ms Tinning’s submissions on this point that unless that parties have access to both files, then the judicial officer would have been in the position of having information that the parties do not have.
The Law
Somewhat surprisingly none of the legal representatives referred to applicable rule or any case authority.
The relevant rule is 2.08 of the Federal Circuit Court Rules which I set out in full. It is in similar terms to Family Court Rules:
(1) The following persons may search the court record relating to a family law or child support case, and inspect and copy a document forming part of the court record:
(a) the Attorney‑General;
(b) a party, a lawyer for a party, or an independent children’s lawyer, in the case;
(c) with the permission of the Court, a person with a proper interest:
(i) in the case; or
(ii) in information obtainable from the court record in the case;
(d) with the permission of the Court, a person researching the court record relating to the case.
(2) For subrule (1), the parts of the court record that may be searched, inspected and copied are:
(a) court documents; and
(b) with the permission of the Court, any other part of the court record.
(2A) A permission:
(a) for paragraphs (1)(c) and (d) and (2)(b)—may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and
(b) for paragraph (1)(d)—must specify the research to which it applies.
(3) In considering whether to give permission under this rule, the Court must consider the following matters:
(a) the purpose for which access is sought;
(b) whether the access sought is reasonable for that purpose;
(c) the need for security of court personnel, parties, children and witnesses;
(d) any limits or conditions that should be imposed on access to, or use of, the court record.
(4) Rule 2.32 of the Federal Court Rules applies to the searching of records in a proceeding that is not a family law or child support proceeding.
(5) In this rule:
court document includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.
Note 1: Section 121 of the Family Law Act restricts the publication of court proceedings.
Note 2: Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004.
The order sought is not a parenting order therefore Part VII of the Family Law Act does not apply.
I do not accept Ms Tinning’s submission that whilst this is not a regular practice it is not an unusual one. There are few cases addressing rule 2.08 or rule 24.13 of the Family Law Rules. No doubt there are cases where all the affected parties consent release of material which would not result in judgments being delivered on the topic. Rule 2.08 contemplates the issue of consent.
Rule 2.08 also refers to conditions being imposed upon access being granted. Imposed conditions would address the Harman principle concerns raised by Ms Lindsay.
Rule 2.08(1) lists the categories of persons who may inspect the court record. The only category the father falls into is a person with a property interest. I must consider whether or not the father is a person with a proper interest. There is no definition of proper interest but it would seem that would refer to someone who has a legitimate forensic interest. The father raises concerns for his own children as being the reason for wanting to inspect the court record because he believes there may be information on that court record which will be relevant to this issue. I am satisfied that the father is a person with a proper interest. However the enquiry does not end there.
Relevant cases
The Full Court of the Family Court considered the application of rule in Oates & Q and Anor [2010] FamCAFC 202. The circumstances of that case were quite different as the person seeking to access the court file was a solicitor who was a de facto partner of the husband. The wife lodged a complaint about the solicitor to the Legal Services Commissioner about the solicitor. The solicitor sought access to the court file between the husband and wife to defend herself against the complaint. The Full court dismissed the wife’s appeal against the orders of Cohen J granting the solicitor access to the court record. Cohen J granted access to the solicitor to inspect and copy the file provided she gave an undertaking to only use the documents for the purpose of defending herself against the wife’s complaint. The Full Court dismissed the wife’s appeal. That was a clear factual scenario where a third party had a proper interest to access the file as it was.
Judge O’Sullivan considered this rule in Echlin & Kagan [2011] FMCAfam 272. That case also concerned a parenting dispute. The applicant mother sought access to a Family Court file involving the father and another party with whom the father had had a relationship with as she suspected there was violence in that relationship. The father objected to the mother being given access to the other court file.
In Thornton & Workcover Corporation of South Australia [2009] FamCA 449 Dawe J was asked to grant an injunction preventing Workcover from using any information if had with respect to the father’s family law case. Workcover was prosecuting the father for several criminal offences. In that case Dawe J was satisfied that the interests of justice in “discouraging crime and other improper activities”. This outweighs the consideration of privacy for litigants and concerns about maintaining confidentiality. One concern would be that litigants may be discouraged from being open and frank in their documents if there were concerned that those documents filed in the court proceedings may not remain confidential. Similar principles were discussed by the Full Court of the Family Court in Commissioner of Taxation & Darling and Anor [2014] FamCAFC 59.
Paradoxos & Paradoxos and Anor [2010] FamCA 653 was an application by an adult child seeking access to the court record between her parents. The discussion in that judgment is not relevant to the situation here.
H & M [2013] FMCAfam 141 concerned an application by the husband in property proceedings to access the file involving the wife and her former husband in proceedings between them in order to access information about what assets she brought into their relationship as a result of that litigation. Judge Brewster found that the husband had a legitimate forensic interest and allowed him access to the file over the objection of the wife’s former husband. He did not allow the husband to photocopy the court record but directed that the file be in court at the final hearing.
H & T [2012] FMCAfam 485 concerned an application to have an affidavit in other proceedings concerning the respondent be made available in the current proceedings. Whilst Judge Lindsay found the material was relevant, he did not grant the application because it was possible to access the information in other ways such as through issuing subpoenas and approaching witnesses to give evidence.
Application of rule 2.08 to the circumstances of this case
The consideration of whether or not to grant a person with proper interest access to a court file is a balancing exercise. In this case there are genuine competing interests. Issues of public policy and privacy are relevant. Family Law disputes are generally deeply personal matters and often contain highly sensitive material. There are good public policy reasons for s.121 of the Family Law Act restraining publication of identifying information. Similar public policy reasons apply in this case.
Rule 2.08(3) requires the court to consider several matters when considering whether or not to grant access to the court record.
The court record is defined at 2.08(2). Court documents include documents filed in the case but do not include correspondence or transcripts. Affidavits are clearly court documents. Different registries have different practices with respect to family assessment reports. In some instances they are folioed like other court documents. Sometimes they are annexed in an affidavit. In some instances they are placed in the correspondence section of the file as are child dispute memorandums. In my view even instances where they are placed with the correspondence part of the file, they are not correspondence but are court documents. Family assessments and child dispute memorandums often form part of the evidence in interim and final hearings.
Turning to the matters referred to in rule 2.08(3), the father seeks access to the court record in order to advance his case that the Rice & Asplund rule (using the shorthand commonly used) should not apply in his case in light of concerns he has about the suitability of Mr York to be involved with his children.
In determining whether or not the access is reasonable for that purpose it is necessary to consider whether not information relevant to that purpose can be obtained by other means. This is an important consideration in the circumstances of this case. The father now has access to the (omitted) records and will have access to the DASA report to use in support of his case. Based on the limited information before me the other proceedings are at a relatively early stage. There is not family assessment report in the current proceedings. The previous family report was prepared in 2012. The mother did not meet Mr York until 2014. As those proceedings settled by consent the family report was not tested. The affidavits in the other proceedings are also untested and according to Mr Harley contain inadmissible material.
Ms Mackies and Mr York raise legitimate concerns for their privacy. Ms Mackies raises concerns about her children’s privacy and potential safety concerns. It is understandable why she in particular would not want information which is likely to be deeply personal and sensitive made known to her ex-partner’s new partner and another party.
If the father is successful in his application to have the court reconsider the parenting arrangements for his children then Mr York may well file an affidavit in these proceedings. If he does then he may be cross-examined. If he does not there may be other arguments available to the father.
In conclusion whilst I find that the father is a person with a proper interest and has a legitimate reason for seeking access to the court record, I will dismiss his application. He has other means of getting evidence supporting his concerns before the court. The material he seeks access to is untested and would adversely affect Ms Davis, Mr York and their children. A factor which is relevant here is that neither Mr York nor Ms Davis are parties to the proceedings before me.
Family law proceedings, particularly parenting proceedings often contain highly sensitive and personal information about litigants, their children and other family members. Whilst court proceedings are conducted in open court there are restrictions on the publication of identifying information which protect the privacy of litigants and their children.
Access to court records by non-parties, particularly over the objection of the parties affected should only be made in rare circumstances and in circumstances where the information cannot be obtained by other methods.
Costs
Ms Tinning sought costs in the sum of $440 as Ms Lindsay was not available when the matter was first called. The Court notes that the matter was in the duty list with several other matters. It is well known that when seeking time for argument in a duty list the matter may be stood down until later in the day so that matters not requiring argument can be dealt with. Ms Lindsay says she did not realise the matter as being dealt with because matter ADC 4087 of 2007 was not in the list. It was not in the list as that is the matter which is in Judge Mead’s docket. The application in a case was filed in these proceedings which was in the list. In any event nothing turns on this as time was usefully spent on the lawyers inspecting the documents by SAPOL. There is no justification for making the costs order Ms Tinning seeks.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 18 June 2015
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