F and T - [2003] FMCAfam 201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & T

[2003] FMCAfam 201

FAMILY LAW – Residence – contact – interim orders – separate representation of children – production of documents from Children’s Court proceedings concerning child subject of application for parenting orders in Federal Magistrates Court – allegation of child abuse – application by mother that maternal grandmother have no contact with children.

WORDS & PHRASES – “Defined entity” – Federal Magistrates Court held to be a “defined entity” for the purpose of Children and Young People Act 1999 (ACT).

Family Law Act 1975 (Cth), s.68L
Children and Young People Act 1999 (ACT), ss.29, 404, 405

Re K (1994) FLC 92-461

Applicant:

JAF

First Respondent:

MET

Second Respondent:

IMcC

File No:

CAM 446 of 2003

Delivered on:

14 May 2003

Delivered at:

Canberra

Hearing dates:

12 and 14 May 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Clifford

Solicitors for the Applicant:

Chris Crowley & Associates

Counsel for the Respondent:

Ms Lloyd

Solicitors for the Respondent:

Jeanine Lloyd & Associates

ORDERS

I dispense with the requirement for service of the Application on the Third Respondent.
The Applicant is to file a copy of the Birth Certificate of the child SLF born 12 February 1993 by 4.00pm on 23 May 2003.
The First Respondent is to file and serve an Amended Response complying with Rule 2.04 and showing the names of all parties to the proceedings by 4.00pm on 23 May 2003.
The Second Respondent is to file and serve a Response and an affidavit stating the facts upon which he seeks to rely by 4.00pm on 23 May 2003.
All documents filed in these proceedings must comply with Rules
2.02 and 2.04 in that they must bear the file number CAM 446 of 2003 and must be headed FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA.
Pursuant to Section 68L of the Family Law Act the children SLF born
12 February 1993 and BLP born 9 July 1997 are to be separately represented AND I REQUEST that the Legal Aid Office (ACT) arrange such representation.
I REQUEST the Chief Executive of the Department of Education, Youth and Family Services give to the Court all information relevant to the safety, welfare and wellbeing of the child BLP born 9 July 1997 as the Chief Executive may currently hold including copies of all reports, assessments, appraisal records and other documents relating to the said child.
The Application is adjourned to Monday 26 May 2003 for further mention at 10.00am.

THE COURT NOTES:

The Second Respondent has indicated his intention to obtain legal advice about these proceedings.
Joseph Tallarita, solicitor, previously represented the said child BLP in proceedings before the Children’s Court at Canberra in the Australian Capital Territory No. CE/***** heard on 13 November 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 446 of 2003

JAF

Applicant

And

MET

First Respondent

And

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application by the mother of two children for the following orders:
a)that the two children should reside with her;
b)that there should be no contact between and the first respondent, who is the children’s maternal grandmother; and
c)that the mother should be at liberty to change the surname of the child B from his current surname to that of F.
There are three respondents to this application. The first respondent is the children’s maternal grandmother, the second respondent is the father of the child S, and the third respondent is one GP, who is the father of the child B. The applicant indicates on her application that she does not know the address of GP.
There is a lengthy affidavit on file from the applicant, setting out a number of matters. The first respondent has filed a response, and the matter came before the Court on Monday 12th May, although there had been an earlier date for subpoenas, the 17^th April. The response filed by the first respondent is, to my mind defective. For some reason, it bears the heading “Family Court of Australia”, as does the affidavit in support. These proceedings are not being conducted in the Family Court; they are being conducted in the Federal Magistrates Court, which is a separate court. The response does not acknowledge the existence of either the second or the third respondent. The orders that are sought by the applicant on a final basis relate to contact with the two children, which are quite clearly orders that would have some effect on the second and third respondents.
The second respondent has appeared at court. He should be given the opportunity to file some material setting out his views on the proceedings.
The third respondent has not appeared and there is no evidence that he has been served. I understand that the location of the third respondent is not known at this stage. It would seem to me that I should make an order dispensing with the requirement for service on him.
There are other matters of some relevance. There are two interim applications in the response filed by the first respondent. One relates to the obtaining of a report from a court expert, and that has been the subject of some discussion, and the other order sought is that the children should be separately represented. That has not been the subject of any discussion at this stage, but it seems to me to be a matter that I should consider.
The facts alleged in the affidavits, at least in respect of the child B, may well come within the guidelines set out in the decision of the Full Court of the Family Court in Re K (1994) 17 Fam LR 537; FLC 92-461. Whilst there does not appear to be an intractable conflict between the parents as such, although the second respondent has not had yet had the opportunity to express his views so far as the child S is concerned, there does appear to be a difference of opinion of some magnitude between the mother and the first respondent.
There have also been allegations of abuse and, from the affidavit material, it would seem that some of these allegations are ongoing. That being the case, I would think that the question of whether these children should be legally represented is a matter that should be looked at early in the proceedings rather than later on. I note the concession by Ms Clifford, who appears for the applicant. It seems to me that the application for separate representation is well grounded. One of the purposes of separate representation is for children to have an independent voice in the proceedings if they are of an age where they can express a view. I am satisfied that this comes within the

Re K
guidelines and I am also satisfied that having these children separately represented can help the Court to arrive at a resolution of what is clearly a very difficult matter. I propose to make such an order.
My view is that the question of whether or not a Court expert should be appointed pursuant to Rule 15.09 is a matter that should be left until the second respondent has had the opportunity to put on his response and affidavit. It should also abide the actual appointment of a child representative, who can play some active part in these proceedings.
Whilst the application relates to both children, most of the material in the affidavits relates to the child B rather than to S, although there is certainly a reference to allegations about S being included in an allegation of abuse that appears in the applicant’s affidavit.
There have been previous proceedings in the Children’s Court of the ACT relating to the child B, and I have had the opportunity of reading through the care and protection order made by that Court. I note that the Children’s Court order contains a notation that there is consent to matters concerning contact between B and the maternal grandmother, the first respondent in the present proceedings, being determined by either the Family Court or this Court. As the Children’s Court proceedings related only to B and not to S, there would be no impediment in any event to the present proceedings going on in respect of S.
I mentioned earlier that there is an application for the appointment of a Court expert to provide a report for these proceedings. I understand that there was a Court expert in the Children’s Court proceedings and the production of that person’s report would be likely to be useful in these proceedings. There have been several reports made available to the Children’s Court, which would no doubt be helpful, as the proceedings in that court have only recently been finalised.
The difficulty that seems to arise concerns the confidentiality provisions in the Children and Young People Act 1999 (ACT), which it is submitted would prevent this Court from obtaining the material that has been received into evidence in the Children’s Court. It is submitted that the provisions of section 405 of that Act would cover the report given to the Children’s Court by the expert in those proceedings. The section, I am told, provides an absolute protection, even against subpoenas.
One solution that has been suggested is that which was apparently adopted in the Family Court, which involved appointing the maker of the report for the Children’s Court as an expert for the purposes of the Family Court proceedings, pursuant to the provisions of Order 30A of the Family Law Rules. What then would happen, it is submitted, is that the Court expert would provide essentially the same report, thereby avoiding the confidentiality provisions of section 405 of the Children and Young People Act. With respect, I do not propose to follow that course.
Mr S, a legal officer from the ACT Department of Education, Youth and Family Services, has acted as amicus curiae in these proceedings. He has provided the Court with a helpful submission of the operation of the relevant provisions of the Children and Young People Act.
The law relating to confidentiality of material prepared for the purposes of care and protection proceedings in the ACT is set out in

sections 404 and 405 of the Children and Young People Act. I will quote the relevant parts of the two sections.

Section 404 provides that:
“(1) A person must not, other than for this Act or as required by law, make a record of or divulge or communicate to anyone else information or a document that the person acquired under this Act.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) This section does not affect the operation of section 405 or any other law relating to the confidentiality of information or documents.”
Section 405 of the Act deals more specifically with material that would be likely to come before the Children’s Court.
“Information required not to be disclosed
A person who is or has been the chief executive, the community advocate, an officer or an authorised person must not directly or indirectly (except in the exercise of a duty or function under this Act or the Community Advocate Act 1991) make a record of, or divulge or communicate to anyone else, information that –
(a) is contained in –
(i) a report under section 158 or 159 (a Territory report); or
(ii) a record of a child protection appraisal made because of a report under section 158 or 159 (an appraisal record); or
(iii) a report made under a provision of a law of a State corresponding to section 158 or 159 that is provided to the chief executive under a section corresponding to section 29 or 323

(an interstate report); or
(b) identifies, or tends to identify –
(i) material contained in a Territory report, an appraisal record or an interstate report; or
(ii) the person who made a Territory report or an interstate report; or
(iii) anything said or done at a family group conference; or
(iv) information or report provided to the conference; or
(c) is prescribed under the regulations for this section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.”
The out appears to be the provisions of section 29 of the Act, which gives the power to the Minister or the chief executive to “give a defined entity relevant to the safety, welfare and wellbeing of children and young people” (section 29(1)(a)). I note from section 29(5) that the term “defined entity” can include “a body established under a law of a State or the Commonwealth” (section 29(5)(d)).
I am satisfied that the Federal Magistrates Court is clearly a body established under a law of the Commonwealth, namely the Federal Magistrates Act 1999 (Cth). It certainly appears to me that that the Minister or chief executive has the power to give to the Court information relevant to the safety, welfare and wellbeing of the child B.
I am informed that the information available includes a report from a play therapist, a Ms M, which, whilst it would be covered by the confidentiality provisions of section 404, would not be covered by the more serious embargo set out in section 405. There is other material, however, available in the Children’s Court relating to B that would be covered by section 405.
Mr S has informed me that there is no objection on behalf of the Chief Executive of the Department of Education, Youth and Family Services to providing that information to the Court. Whether that material goes into evidence or not is another matter. The decision as to what material goes into evidence is ultimately a matter for the Court, and, indeed for the Federal Magistrate who hears the case. It is certainly not my view that any information provided under section 29 of the Children and Young People Act automatically goes into evidence. There may be good reasons why it should not.
I propose to make a request to the Chief Executive to provide to the Court all information relevant to the safety, welfare and wellbeing of the child B. I will issue some orders today that will include a request addressed to the Chief Executive to provide that particular information. I also propose to order that the children be legally represented pursuant to section 68L of the Family Law Act and to request the Legal Aid Commission to make the necessary arrangements. I will adjourn the proceedings to a convenient date when the second respondent can have his material filed and a child representative can appear.
I will order a transcript of my reasons for this decision, which may be of assistance when the matter returns to court.
The matter will be back before the Court for further mention at

10.00am on Monday 26^th May.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 10 June 2003