Echlin and Kagan
[2011] FMCAfam 272
•15 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ECHLIN & KAGAN | [2011] FMCAfam 272 |
| FAMILY LAW – PRACTICE & PROCEDURE – Access to inspect court file – permission to inspect the court file for the purpose of parenting proceedings – party with proper interest – rule 2.08 of the Federal Magistrates Court Rules 2001 – application granted. |
| Family Law Act 1975 (Cth), s.121 Federal Magistrates Court Rules 2001 (Cth), r.2.08 Family Law Rules 2004 (Cth), r.24.13 |
| Oates & Q and Anor [2010] FamCAFC 202 |
| Applicant: | MR ECHLIN |
| Respondent: | MS KAGAN |
| File Number: | DGC 683 of 2010 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 15 March 2011 |
| Date of Last Submission: | 15 March 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 15 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms D. Dwyer |
| Solicitors for the Applicant: | Denise Dwyer Lawyers |
| The Respondent: | Appeared in person |
THE COURT ORDERS THAT:
Ms Kagan have leave to view and inspect only the Court documents on the file held by the Family Court of Australia at the Dandenong Registry between Ms P and Mr Echlin file number [omitted].
Ms Kagan notify Ms P by text message of these order and she have
14 days to apply to set aside order (1).Ms Kagan not discuss, disclose or use any information gained pursuant to order (1) other than for purposes of these proceedings.
BY CONSENT THE COURT ORDERS:
The parties and the children [X] born [in] 2006 and [Y] born [in] 2008 (“the children”) attend upon a Dr E for an updated report and the parties to provide him with all Court documentation for that purpose. The cost of the updated report to be paid by the Applicant.
Pursuant to Rule 15.08 of the Federal Magistrates Court Rules 2001 Dr E and Dr K to confer and produce a joint statement to be filed with the Court on how their opinions on the question of Mr Echlin’s mental health and suitability for unsupervised access differ.
The matter be adjourned to 29 June 2011 at 10.00 a.m. for final hearing (with an estimated hearing time of 2 days) at the Federal Magistrates Court of Australia at Dandenong.
The applicant do file and serve all further affidavits and other material to be relied upon by the applicant not later than 21 days prior to the trial.
The respondent do file and serve all further affidavits and other material to be relied upon by the respondent not later than 14 days prior to the trial.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date setting out the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60cc factors);
(d)a list of other contentions relevant to the decision;
(e)whether the presumption of equal shared parental responsibility applies (s.61da), and if not the contentions relied upon;
(f)a list of the considerations relevant to considerations of equal and substantial parenting time (s.65daa);
(g)a list of other relevant considerations (including the relevant section number, eg ss.60cg, 61f, 65dab, 65dac, etc); and
(h)the actual orders sought.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.
AND THE COURT NOTES THAT:
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Echlin & Kagan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 683 of 2010
| MR ECHLIN |
Applicant
And
| MS KAGAN |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court this afternoon is an application in a case filed by Ms Kagan, aged 45 (“the mother”). The respondent to that application in the case is Mr Echlin, aged 48 (“the father”).
The parties commenced a relationship in 2005 and separated in September 2009. There are two children, both still very young, namely, [X] born [in] 2006 and [Y] born [in] 2008 (“the children”).
The background to this application in a case is that the father and the mother are involved in a substantive parenting dispute before the Court which was commenced by application filed by the father on 3 March 2010.
On 6 April 2010, the mother filed a response and there were orders made on 14 April 2010.
There were then orders made on 16 December 2010, including an order fixing the matter for a trial today, 15 March 2011. Since then the parties agreed that the trial date should be vacated.
However, on 18 February 2011, the mother filed the application in a case, which I have already referred to, supported by an affidavit filed the same day.
On 2 March 2011, the father filed a response, as well as an affidavit that day, which sets out that he opposed the orders sought in the application in a case by the mother.
The mother’s application in a case filed on 18 February 2011 was given a first return date of 4 March 2011. On that date, the mother, who has been unrepresented since November 2010 appeared in person and
Ms Dwyer appeared on behalf of the father. Enquiries were made by the Court in relation to the purpose of the orders sought in the application in a case and the reasons for it, as well as what steps had been taken by the mother to bring to the attention of affected parties the material sought in the orders in that application in a case.
Application in a case
The mother, in her application in a case filed on 18 February 2011 sought the Court to make the following orders:
“1.That the Court grants leave for the Respondent to view and copy Family Court documents filed at the Federal Magistrates Court Dandenong in the matter of Mr Echlin and Ms P.
2.That the Court grants leave for the Respondent to view and copy documents filed at the Country Court in Dandenong in the matter of Mr Echlin and Ms P.”
The mother also filed an affidavit on 18 February 2011. That affidavit makes clear that the mother is seeking permission of the Court to inspect the file held by this Court involving the father and another party, Ms P with whom he had a relationship and which she suspects may have been violent.
The father filed a response on 2 March 2011 which sought the following orders:
“1.That the Mother’s Application in a case file 18 February 2011 be dismissed.
2.That the Mother pay the Father’s costs of and incidental to this Application.
3.Such further and other Orders as this Honourable Court deems appropriate.”
The father also filed an affidavit on 2 March 2011 which makes clear he opposes the mother having access to the file.
On 4 March 2011, when the application in a case had its first return date, the Court heard evidence from Dr S via telephone link. Dr S filed an affidavit of service deposing to service of the application in a case and affidavit material on Ms P at an address in [suburb omitted]. However, Dr S’s evidence before the Court on that occasion made plain that Ms P had not been personally served for reasons which are explicable as it appears it is common cause she is overseas and has been for some time.
The matter was adjourned to today, 15 March 2011 the date that had been fixed for the trial of the substantive proceeding. For reasons which are not presently relevant, but include that a psychiatrist who had interviewed the parties is overseas for reasons which are not clear, and that the parties agreed that the trial could not proceed in the absence of that witness, the parties agreed that the trial should be vacated, but this date should be kept for the purposes of dealing with the mother’s application in a case.
The mother has since filed a further affidavit on 10 March 2011 deposing to the attempts she has taken to bring these proceedings and her court material to Ms P’ attention.
The Court spent some time with the parties considering the approach to the orders sought in the application in a case.
Approach to application
Rule 2.08 of the Federal Magistrates Court Rules 2001 (“the FMC Rules”) provides that:
“Searching records
(1)Subject to any order of the Court, the following persons may search the records of the Court relating to a family law or child support proceeding, or inspect or copy a document forming part of the records:
(a)the Attorney‑General;
(b)a party, a lawyer for a party or an independent children's lawyer in the proceeding;
(c)a person who demonstrates a proper interest in searching the records or inspecting the document and has been granted leave of the Court or a Registrar to do so.
(2)For subrule (1):
(a)the parts of the court record that may be searched are:
(i) court documents; and
(ii) with the permission of the Court -- any other part of the Court record; and
(b)a permission may include conditions, including a requirement for consent from any person who is mentioned in the record.
(3)In considering whether to give permission under subparagraph (2)(a)(ii), 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 record.
(4)Rule 6 of Order 46 of the Federal Court Rules applies to the searching of records in a proceeding that is not a family law or child support proceeding.”
Consideration
I note that whilst the mother had sought that the Court also make an order giving her permission to search the records of proceedings between the father and Ms P in the County Court, she confirmed to the Court, both on 4 March 2011 and again this morning, that if there were an order from the Court for her to inspect the file between the father and Ms P in this Court, she would not seek on the order in relation to the County Court file.
In Oates & Q and Another [2010] FamCAFC 202 the Full Court considered the issue of access to a Court file. In that decision the Full Court was considering an appeal brought by the wife in that case against an order made by Cohen J granting access to the Court file in respect of property proceedings between the husband in that case and the wife to the husband’s new de-facto partner, who was a solicitor. The de-facto partner sought the file for the purpose of defending herself in a complaint made by the wife to the Office of the Legal Services Ombudsman.
The Full Court’s decision dismissed the appeal, noting that the decision giving access to the file had originally been made by a Registrar who gave notice of her decision to the husband and the wife. The wife filed an application to review the Registrar’s decision and Cohen J permitted access to the file subject to an undertaking to the Court that the
de-facto spouse not use any information or copy any document obtained from such search for any purpose other than to defend herself from the complaint to the Legal Services Commissioner.
The Full Court in that decision referred to relevant Family Law Rules 2004 which provides at rule 24.13 that:
“Searching court record and copying documents
(1)The following persons may search the court record relating to a case, or inspect or copy a document forming part of the record:
(a)the Attorney-General;
(b)a party, a lawyer for a party, or an independent children’s lawyer, in a 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):
(a)the parts of the court record that may be searched are:
(i) court documents; and
(ii) with the permission of the court — any other part of the court record; and
(b)a permission:
(i) may include conditions, including a requirement for consent from any person who is mentioned in the record; and
(ii) for paragraph (1)(d) must specify the research to which it applies.
(3)In considering whether to give permission under paragraph (2)(a)(ii), 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 record.
(4)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.
The Full Court considered that at first instance the judge had properly considered the material relevant to the rule for the purposes of the application before the Court and dismissed the appeal.
The relevant Family Law Rules considered by the Full Court in that decision, for all intents and purposes at least of this application are in the same terms as rule 2.08 of the Rules of this Court. Applying either, the rules require consideration of the purpose of seeking access, whether the access sought is reasonable for that purpose, any conditions which should be imposed, the safety of any witnesses or persons involved in the case, or court personnel which would be compromised by inspection and, of course, as was averted to and as is clear from the provisions of rule 2.08, whether the party has a proper interest.
The rules are obviously intended to maintain the privacy of litigants unless justice, fairness, and the public good demands otherwise and the purpose of the applicant must be considered because of the terms of the relevant rule, as must whether the access sought is reasonable for that purpose.
The Court’s consideration of the application clearly gives rise to discretion on the Court’s part to permit access. In this case, I am satisfied that the mother, for the reasons referred to in her material, is a person who demonstrates a proper interest in searching the court record and inspecting the court documents in the file of this Court referred to in her application in a case.
For the purposes of rule 2.08(2), I note that Ms Dwyer has not contended today that the mother cannot demonstrate a proper interest. It is accepted by the mother that she only seeks to search court documents including court orders and the parties’ affidavits in that file.
I have considered rule 2.08(2)(b) and whether conditions will be imposed on the mother’s application to inspect that court record. Self-evidently that has required me to consider whether Ms P should have notice or should have the opportunity to give her permission first.
In the circumstances, the mother has told the Court she is content absent further order of the Court to simply be able to inspect the file. The material that the mother has filed, including the affidavit of
10 March 2011, satisfies me that she has taken reasonable steps to attempt to bring her application and notice of her application to Ms P’s attention.
I would require her, by the same means referred to in her affidavit filed 10 March 2011, at paragraph 3, bring the orders that I make to Ms P’s attention. Otherwise, given the position of the mother before the Court, I am satisfied that reasonable attempts have been made to try and obtain the consent of Ms P.
Ms Dwyer has made clear that her client’s instructions are that he does not give that consent, but I am satisfied that the mother, has sought to obtain the permission of the parties involved in the matter and that she has a proper interest for doing so.
She has satisfied me having regard to the factors set out in rule 2.08(3) of the purpose for which that access is sought. Given the material referred to in her affidavits, I am satisfied that the access sought is reasonable for that purpose.
Given that the mother will have an order of the court giving her permission to inspect absent further order the Court documents only, I am satisfied that appropriate regard has been had to the need for security of court personnel, parties, children and witnesses and that there are appropriate limits or conditions imposed on access to – or use of that record, with the additional restriction being that she not disclose the contents of any documents that she views for that purpose to any other person other than for the purpose of these proceedings. Accordingly the Court will impose a condition in those terms for those reasons.
However, the mother will have permission to inspect the court documents on the file between Ms P and the father in the court file identified in the application in a case filed 18 February 2011.
The substantive proceedings have already, by consent, been adjourned for hearing in June 2011. The parties this morning have asked the Court to consider making further orders by consent for the proper conduct of this matter to proceed to trial and I so order.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 15 March 2011
2