Fleming and Fleming
[2016] FamCA 362
•18 May 2016
FAMILY COURT OF AUSTRALIA
| FLEMING & FLEMING | [2016] FamCA 362 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Release and use of expert report – Where the father seeks the release of the single expert report for use in Apprehended Violence Order proceedings brought against him in the New South Wales Local Court – Where the Apprehended Violence Order sought by the police lists the children as protected persons – Whether the implied obligation applies to the single expert report – Consideration of Sahadi & Savva and Anor [2016] FamCAFC 65 – Where the Court finds the implied obligation does not apply to the single expert report – Whether in exercising the Court’s discretion the single expert report should be released – Where the Court finds it is not in the public interest for single expert reports to be released without redaction and without an undertaking being provided to seek a non- publication order. |
| Family Law Act 1975 (Cth) ss 121 British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571 |
| APPLICANT: | Mr Fleming |
| RESPONDENT: | Ms Fleming |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Fernie (as agent for Mr Samuel) |
| FILE NUMBER: | SYC | 2944 | Of | 2013 |
| DATE DELIVERED: | 18 May 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 10 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Othen |
| SOLICITOR FOR THE APPLICANT: | Mervyn Finlay Thorburn & Marshall |
| SOLICITOR FOR THE RESPONDENT: | Mr Long of Clinch Long Letherbarrow |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
Subject to Orders 2 and 3 below, the father’s legal representatives be granted leave to provide a copy of the report of Dr B dated 4 February 2016 (“the Report”), redacted in terms of Order 2 below, to the following persons for the purposes only of the Report being tendered in evidence at the hearing of an application for an Apprehended Violence Order (“AVO”) commenced by the New South Wales Police against the father in the New South Wales Local Court (“the AVO proceedings”):
a)Mr Fleming (“the father”) and/or his legal representative(s);
b)The New South Wales Police and/or their legal representative(s) appearing on their behalf in the AVO proceedings; and
c)The New South Wales Local Court Magistrate presiding over the AVO proceedings involving the father and the New South Wales Police listed for hearing in the New South Wales Local Court on 30 May 2016.
Prior to the release of the Report pursuant to Order 1 above, the father’s legal representatives must, to the satisfaction of the mother and her legal representatives, and failing agreement, to the satisfaction of the Court:
a)Redact the Report by deleting material that is not reasonably related to the AVO proceedings.
The father and/or his legal representatives on the father’s behalf are, prior to the provision of a copy of the Report as provided for in Order 1 above, to do the following:
a)Provide a written undertaking to this Court to be filed in the Registry at Sydney:
i)Not to publish or release the contents of the Report to any person other than a legal representative in the AVO proceedings, without further leave of this Court; and
ii)To make an application for an order from the New South Wales Local Court directed to any such persons not to publish or release the contents of the Report outside the AVO proceedings and that the Report is to be used only for the purposes of the AVO proceedings.
Leave is granted to the parties’ legal representatives and the Independent Children’s Lawyer to re-list this matter in respect to the above Orders on twenty-four (24) hours’ notice to my chambers and to the other parties.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleming & Fleming has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2944 of 2013
| Mr Fleming |
Applicant
And
| Ms Fleming |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant father has sought orders that enable the report of Dr B dated 4 February 2016 to be tendered as evidence in the hearing of an application for an Apprehended Violence Order (“AVO”) commenced by the New South Wales Police against the father (“the AVO proceedings”). Dr B has been appointed as the single expert in these proceedings to provide a report in respect to parenting matters that are before the Court. The AVO has been sought by the police for the protection of the two children of the marriage, namely C born … 2005 (“C”) and D born … 2006 (“D”), collectively referred to as “the children”. The AVO application has been listed for final hearing in the Local Court on 30 May 2016.
The relevant factual background is as follows:
·On 9 September 2015, the children were interviewed by the Joint Investigation Response Team (“JIRT”) in respect of disclosures the mother reported they had made, that the father had touched them inappropriately on the breasts, buttocks and thighs.
·The police, following an investigation into the disclosures, determined that no formal charges would be laid against the father, but nonetheless applied for an AVO in which the children are cited as the people in need of protection from the father. The AVO application seeks orders that the father not assault, molest, harass, threaten or otherwise interfere with the children, not engage in any other conduct that intimidates the children, or stalk them. A provisional order was made in these terms.
·In the brief of evidence served by the police, the substantive evidence relied upon is the transcript of interviews with the children and the mother’s statement to the police. The brief does not include any expert evidence.
·On 4 February 2016, the Court received and released the single expert report of Dr B to the parties (“the report”). The report had been prepared by Dr B pursuant to orders made by the Court on 3 December 2015.
·Order 4 of the orders made on 3 December 2015 was as follows:
That the mother and the father do all things necessary to facilitate the preparation of the report, including attending upon the expert and arranging for the children in their care to attend upon the expert.
·The report released by the Court to the parties contained the following notice on its cover:
NOTICE TO PERSONS RECEIVING COPIES OF THIS REPORT
This report is distributed by the Registry Manager of the Court under Part 15.5 of the Family Law Rules. It must be treated as confidential and must not be shown to any person other than the parties, their lawyers and any other person the lawyer concludes necessarily needs to see the report for the purposes of the case. If you are representing yourself the report should only be read by you and you must not provide a copy to any other person unless you believe it is necessary for a witness you are calling to give evidence at the trial to read the report.
Penalties may apply under Section 121 of the Act to the printing or publication of any material contained in this Report other than use in connection with proceedings in the Family Court.
It is the responsibility of the parties to arrange for the attendance of the expert if they wish to cross-examine the expert.
·The notice also stated that copies of the report were to be provided to the parties’ legal representatives as well as the Independent Children’s Lawyer (“the ICL”).
·Following the release of Dr B’s report, a request was made for a copy of the report to be provided to a JIRT clinician to whom the children had been directed to attend for the purposes of counselling. Whilst the mother asserts that the request was made by the ICL, and not her as alleged by the father, it is nonetheless agreed that both parties consented to the report being released to the clinician, Ms E.
The mother opposes the father’s application for the release of the report for the purpose of it being tendered into evidence in the AVO proceedings. By email dated 16 March 2016, the ICL advised the parties that he did not consent to the release of the report. At the hearing on 10 May 2016, it became clear that the ICL’s position had since been modified to reflect a relatively neutral position.
Competing Submissions
The Father
Counsel for the father argued that, if the Court was considering an application for injunctions for the personal protection of the children pursuant to section 68B(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), the Court would admit into evidence the report of Dr B. It was argued that the function of the Local Court Magistrate in considering the AVO application is therefore akin to the role of a judge of this Court in considering such an application pursuant to section 68B of the Act. That is, effectively the Local Court Magistrate will be determining whether to make a personal protection order to protect the children from one of their parents.
In that context, it was argued that the proceedings are effectively “the same”, as both proceedings involve the same children and parents and the Local Court Magistrate will effectively have the same duty of determining what is in the best interests of the children.
It was further argued that the police will be prejudiced as a result of being unable to present a “complete picture” to the Local Court Magistrate if the report of Dr B is not released to them.
In summary it was argued that there is “a legitimate forensic purpose” in the father seeking the release of the report in terms of the use of that terminology in Sahadi & Savva and Anor [2016] FamCAFC 65 (“Sahadi”).
The father disputed the relevance of section 121 of the Act in the Court’s determination of his application because:
a)the mother has already disclosed the existence of the Family Court proceedings and the parties to those proceedings during the course of the AVO proceedings; and
b)in any event, section 121 applies to prevent the reporting of the identity of parties not to the disclosure of information obtained in the course of the family law proceedings.
Reference was made to Sahadi to argue that Dr B is not “bound by an obligation of confidence owed to the parties.”[1] In that context reference was also made to Sahadi at [66] where the Full Court stated:
The very point of a family consultant’s report or an expert’s report relating to the parenting of children is that the report is obtained by the court for the benefit of the court. In those circumstances it is impossible to see how the court is bound by an obligation of confidence arising between the parties and the expert not to disclose the expert’s report.
[1] Sahadi & Savva and Anor [2016] FamCAFC 65 at [65].
Whilst acknowledging that the best interests of the children remain a relevant consideration, counsel for the father relied on Sahadi at [48] – [50] to argue that the orders sought by the father for the release of the report are not orders made under Part VII of the Act and therefore the paramountcy principle set out in section 60CA does not apply.
In that context counsel for the father argued that, in so far as the Local Court Magistrate, presiding over the AVO proceedings is tasked with the responsibility of determining whether to make orders to protect the children from their father, it is in the children’s interest that he or she does so with the best evidence available. That evidence, it was submitted, includes the report of Dr B.
In anticipation of the mother’s argument that the release of Dr B’s report increased the likelihood of the children being required to give evidence in the AVO proceedings, counsel for the father submitted that the Family Court should not attempt to anticipate or predict the course of action likely to be taken by the parties or the Local Court Magistrate in the AVO proceedings.
In that context, it was submitted that while it is rare for the Family Court to hear evidence from children it does not mean that the Court should sit in judgment of another court determining whether it should consider such evidence.
In further anticipation of the mother’s argument that the mother would be disadvantaged as a result of being unable to cross examine Dr B, as she is not a party to the AVO proceedings, counsel for the father referred to [69] of Sahadi and submitted that there is no reason why any contested issues of fact cannot be resolved in the Local Court when hearing the AVO application.
Counsel for the father also submitted that Sahadi stands as authority that parties are not subject to an implied undertaking to not use a single expert report other than for the purpose of the family law proceedings. It was submitted that the doctrine of implied undertakings as derived from Harman v Secretary of State for the Home Department [1983] 1 AC 280 is applicable only in circumstances where a party has sought discovery of documents from another party or a third party to the litigation. In so far as the litigation intruded into the privacy of the party or third party, it is necessary for implied undertakings in order to protect the privacy of that party beyond the scope of the litigation in which the parties are involved.
Counsel for the father argued that, if the Court determined that the parties were indeed subject to such an implied undertaking, the father had established “special circumstances” that justified the release of the parties from such an undertaking and therefore, the release of the report. In that context, the father argued that the matters to which Dr B reported are so aligned with the issues to be considered in the AVO proceedings as to permit the release of the report. Specifically, whether the father presents a risk to the children and the relevant orders that need to be made to address that risk.
The public interest, it was argued, also favours the release of the report. This is because the Local Court is seized with jurisdiction in respect of the welfare of the children and it is important that the Local Court makes its decision on the basis of the best available evidence.
Reference was also made to the decision of Watts J in Pedrana & Pedrana and Anor (No.2) (2013) 48 Fam LR 89, and the cases referred to therein by his Honour, to argue that, as a result of the similarity between the family law proceedings and the Local Court AVO proceedings, the “Harman obligation” does not arise.
The Mother
The solicitor appearing on behalf of the mother argued that the proposition that the AVO proceedings are akin to proceedings under section 68B(1)(a) of the Act is flawed because the mother is not, in the family law proceedings, seeking such injunctive relief.
The family law proceedings, it was argued, involve a far wider range of issues than the AVO proceedings. The issues being considered by the Family Court, it was noted by way of example, include the time that the children are to spend with the father on a regular basis and on special days such as Christmas Day and Mother’s and Father’s Day, the exchange of information between the parties regarding school reports, medical emergencies, schooling and extra-curricular activities.
It was argued that Dr B’s enquiry was vastly broader than the much narrower enquiry that will be conducted by the Local Court in the context of the AVO proceedings. The issue before the Local Court in the AVO proceedings, it was submitted, is whether there was harassment, intimidation or an apprehension of actual violence that causes there to be a need for protection of the children.
If Dr B was invited to prepare a report for the purpose of the AVO proceedings, it was argued, she would have conducted a different enquiry, considered different matters in a different context, and in different detail.
It was submitted that the similarity between the family law and the AVO proceedings exists only in respect to a very narrow issue. In so far as the father’s counsel submitted that it involves the same children and parents, the solicitor appearing for the mother noted that the mother is not a party to the AVO proceedings and is therefore unable to direct questions to Dr B. It was submitted that it will be the police, not the mother, who will determine any challenges to be made as to the admissibility of the report, what cross examination needs to take place of Dr B and whether the children will be called to give evidence in light of Dr B’s report.
The solicitor appearing for the mother argued that the protection of the parties’ confidentiality before this Court, as provided for in section 121, cannot be waived by a party. In that context, it was argued that it was entirely appropriate for the mother to inform the Local Court of the existence of these proceedings. The mere fact that that had occurred did not waive the operation of section 121 of the Act. It was argued that the fact that the AVO proceedings will be conducted outside the protection of section 121 was relevant because if Dr B’s report is admitted into evidence, it will reveal the personal details of the mother, the children and other persons referred to in the report in respect to the broader spectrum of matters canvassed by Dr B in her report.
The solicitor for the mother accepted that the paramountcy principle set out in section 60CA of the Act does not apply to these proceedings. He acknowledged, however, that the best interests of the children are relevant to the Court’s consideration of the father’s application.
It was submitted that the release of the report for the purpose of the AVO proceedings would increase the likelihood of the children being required for cross-examination in the AVO proceedings. In that context, it was agreed between the parties that the rules of evidence would apply to the AVO proceedings. The solicitor appearing for the mother noted that it is common for the hearsay rule not to be applied in family law proceedings in respect to children’s evidence and such evidence is frequently accepted in the form of information provided by children to experts providing reports such as the one by Dr B. That practice will not be adopted in the Local Court as it would be inconsistent with the rules of evidence. It was argued, therefore, that there is a real risk of the children being called to give evidence.
In that context, it was argued that the Court cannot ignore Dr B’s reference in her report to the fact that D, in particular, had referred to being a “pawn” between her disputing parents. Requiring her to give evidence, in those circumstances, it was submitted, would be contrary to her best interests.
It was argued that the parties are subject to an implied undertaking to the Court to not use the report of Dr B for purposes other than in respect to the family law proceedings. There is a public interest in applying that doctrine to expert reports provided in the context of family law proceedings because it encourages candid disclosure from parties when they are being interviewed for the preparation of an expert report. It was submitted that such candour and depth of discussion by parties with an expert would be limited if it was likely that such disclosures were also to be used for a purpose broader than the family law proceedings.
It was submitted that a party seeking to be released from that implied undertaking needs to establish “special circumstances” as opposed to merely the existence of “a legitimate forensic purpose”. In respect to that submission, it was argued that the reasons advanced by the father do not establish those “special circumstances”.
In so far as it has been argued that the evidence of Dr B will ensure that the Local Court has the best available evidence, it was submitted that the focus of Dr B was on preparing a report for the Family Court proceedings and that she would have adopted a different approach had she been invited to prepare a report for the purpose of the AVO proceedings. It was also argued that there is nothing preventing the father from obtaining alternative expert evidence for the purpose of the AVO proceedings.
The Independent Children’s Lawyer
At the hearing on 10 May 2016, the agent appearing on the behalf of the ICL indicated that the ICL now took a more neutral approach than he had first indicated to the parties. The ICL nonetheless opposed the report being used in the AVO proceedings if there was any risk that the children would be cross examined as a result of the report being released. The agent for the ICL also reported that the ICL held concerns that, if the report is released for the purpose of the AVO proceedings without restrictions, the report could end up being made available to any number of persons. The ICL also expressed concern that, when preparing her report, Dr B could not have possibly been aware that it was intended to also be used for AVO proceedings.
The Issues
The issues in these proceedings are therefore:
·Does the implied undertaking of confidentiality apply in respect to the report of Dr B?
·If so, has the father established “special circumstances” which would justify the release of the parties from such an undertaking and therefore, the release of the report for the purpose of the AVO proceedings?
·If the implied undertaking of confidentiality does not apply, what are the relevant considerations for the proper exercise of the Court’s discretion in determining whether to permit the release of the report for the purpose of the AVO proceedings?
Discussion
Is the report of Dr B subject to an implied undertaking that it will not be used outside family law proceedings?
At common law, documents or information provided pursuant to compulsion by court order or the rules of the court are subject to an “implied undertaking” or, as sometimes expressed, “implied obligation”, provided by the parties to the court that the information will not be used other than for the purpose for which it has been provided. This is commonly referred to as the “Harman obligation”, as derived from the House of Lords decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280. In that case Lord Roskill at 321 summarised the principle as follows:
My Lords, in Alterskye v. Scott [1948] 1 All E.R. 469, 470, Jenkins J, as he then was, referred to the nature of this undertaking in very simple terms thus: “... [t]he implied undertaking, under which a party obtaining discovery is, not to use documents for any collateral or ulterior purpose.”
The High Court of Australia has since extended the “Harman obligation” beyond discovery of documents. In Hearne and Anor v Street and Ors (2008) 235 CLR 125 at 154[96] the majority (Hayne, Heydon and Crennan JJ) said:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
(Emphasis added)
In that case, one of the witness statements was that of an expert which had been served pursuant to a direction of the court.
To determine whether the implied undertaking of confidentiality, or the “Harman obligation”, applies in the present case, therefore requires a consideration as to whether the parties to the family law proceedings, that is, the mother and the father, were “compelled” to provide the information that they provided to Dr B. I have earlier referred to Order 4 of the Order made 3 December 2015, appointing Dr B as the single expert.
In Sahadi, the Full Court at [57] said that any obligation to attend an expert appointed by the Court “does not carry with it an obligation to reveal facts, information or beliefs that a person does not wish to disclose.”
Applying that reasoning, it cannot therefore be said that the mother or the father were compelled to disclose to Dr B information that they did not wish to be disclosed. Accordingly, the report is not, in my opinion, subject to the implied undertaking of confidentiality. It is not therefore necessary for the father to establish that special circumstances exist for the release of the report. That is not, however, the conclusion of the Court’s consideration of the father’s application.
Proper exercise of discretion
At the outset I confirm that, in exercising my discretion, I have not had regard to the possibility of the children being required to give evidence in the Local Court AVO proceedings. I accept the submission of counsel for the father that there is simply insufficient evidence before this Court to enable me to arrive at a conclusion, either way, in respect to that possibility.
In deciding whether to exercise the Court’s discretion to order that the report be released for the purposes of the AVO proceedings, it is appropriate that I have regard to the context in which the report was prepared.
The Court places great importance on the reports of single experts that are prepared in parenting proceedings. It goes without saying that the Court expects that parties being interviewed for the preparation of those reports to disclose all relevant matters relating to the best interests of the children.
As noted, the report was prepared in the context of the parties being required, by the Order made on 3 December 2015, to “do all things necessary to facilitate the preparation of the report.”
It is important that parties to parenting proceedings and other persons who are interviewed for the purposes of the preparation of an expert report, are encouraged to be as candid and forthcoming as possible in providing information to the expert.
That may include acknowledging inappropriate and/or illegal conduct. It may also include making concessions contrary to that party’s interests, where that is appropriate. In these proceedings, for instance, the mother acknowledged to Dr B that she had consumed an illicit substance on one occasion. Further, at paragraph 76 of her report, Dr B reports that the mother acknowledged to her that “she did not think that [the father] had sexually abused the children”.
This information may not have been communicated to Dr B if the mother was aware that the information disclosed by her to Dr B would be used other than in respect to the family law proceedings.
The mother and the ICL have expressed a valid concern that, if the father is permitted to tender Dr B's report as evidence in his defence in the AVO proceedings, judicial officers, legal practitioners, police officers and anyone present in the courtroom might become aware of the information given and disclosures made by the mother and the children to Dr B. This is of particular significance in circumstances, as will be discussed, where there has been no proposal by the father to restrict the publication of, or redaction of, the report.
In British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571 at [20], the Victorian Supreme Court of Appeal explained that the implied undertaking not to use material produced under compulsion in other proceedings was “to protect the subject party’s privacy and thereby inter alia to encourage full and frank disclosure wherever required for the purposes of the litigation”.
Whilst that statement was made in the context of the implied undertaking of confidentiality, or the “Harman obligation” to which I have referred, the reasoning is apposite to the proper exercise of my discretion in determining this application. That is, adopting a course of action that will not discourage persons, being interviewed for the purpose of assisting in the preparation of an expert report, to be a candid as possible.
In other words, there is a significant public interest in encouraging disclosure of any information that is relevant to the Court’s task in determining what is in the best interests of a child or children who are the subject of Family Court proceedings.
The father, as the applicant, carries the burden of satisfying me that I should exercise my discretion to release the report of Dr B for the purposes set out in his application.
He seeks to do that on the basis of establishing that he has a “legitimate forensic purpose”, in terms of the use of that phrase in Sahadi, in seeking to utilise the report in the AVO proceedings that are before the Local Court. I accept that the father has such a purpose.
While I accept that the father has a legitimate forensic purpose in seeking to use the report of Dr B in the AVO proceedings, that is one factor which is relevant to my consideration in the proper exercise of my discretion. I must also consider the interests of not only the parties, but also the broader public interest.
That is, the father’s purpose in seeking the release of the report must be balanced against the public interest in encouraging the full and frank disclosure of persons who are interviewed for the purposes of the preparation of expert reports and family reports in context of family law proceedings.
In terms of individual interests of the parties, it would undoubtedly be the case that Dr B’s opinion, expressed in the report, that the interim domestic violence order made against the father was unnecessary, would be of assistance to the father’s case in opposing the AVO application.
On the other hand, I note that the mother objects to the release of the report on the basis that it would be contrary to her interests because she is not a party to the AVO proceedings. She will therefore be unable to object to the admissibility of Dr B’s report in whole or in part. Specifically she will not be in a position to object to the admissibility of the report in so far as it contains information that is not relevant to the AVO proceedings. Further the mother will not be in a position to cross examine Dr B, should Dr B be called to give evidence in the AVO proceedings.
In terms of the issue of relevance I note that unlike Sahadi, the father in these proceedings has not proposed a mechanism to redact the report of Dr B or to restrict its publication.
In Sahadi the report was released by the trial judge in circumstances where he ordered the report to be redacted by:
(a) deleting the identity and identifying details of [named person] and that of her family; and
(b) deleting the name of the child of the father and the mother of the child’s birth date.
In addition, the trial judge required the following undertakings to be provided by the applicant, being the Commissioner of the New South Wales Police Force:
(a) An undertaking in writing from such persons to this Court to be filed in the Registry not to release the contents of the subject report to any person, save a legal representatives retained by that person in the Supreme Court proceedings, without further leave of this Court; or
(b) If no undertaking in writing is provided in terms of (a) above, then, in terms of the Commissioner’s undertaking to this Court, the making of an application to the Supreme Court of New South Wales, to obtain from that Court an order directed to any such person not to publish the contents of the subject report and for its use only in the Supreme Court proceedings.
No such restrictions have been sought in these proceedings and no such undertakings have been offered in support of the father’s application.
This is not an insignificant matter as, for instance, at paragraph 67 of her report, Dr B refers to an alleged rape said to have been committed by the father in circumstances where the reference is also capable of identifying the alleged victim. In circumstances where the tender of the report in the AVO proceedings will not be the subject of a protection pursuant to section 121, and in circumstances where restrictions and undertakings to the effect of those required in Sahadi have not been provided, there is potential for the identity of the alleged rape victim to be publicly disclosed. Similarly, whilst the mother and the children have provided statements for the purposes of the AVO proceedings, it is reasonable to assume that those statements do not canvas the breadth of matters referred to in Dr B’s report. It is therefore reasonable to assume that there will be substantial parts of Dr B’s report that are quite irrelevant to the AVO proceedings.
Without the restrictions and undertakings similar to those ordered in Sahadi there is a potential risk that if the report is released, broader information than that required for the purpose of considering the AVO application will be publicly disclosed.
As I have indicated, the proper exercise of my discretion in this matter involves balancing the competing individual rights of the parties against the context of the broader public interest. That public interest is encouraging persons who provide information to experts for the purpose of preparing a report in parenting proceedings to be a candid and forthright as possible.
In balancing those interests, I will authorise the release of the report but subject to conditions that limit the potential for the report to be published or released beyond the AVO proceedings. Those conditions will be to the following effect:
a)That the report is redacted to exclude information that is not reasonably related to the AVO proceedings; and
b)That the father and/or his legal representatives provide an undertaking that he will seek from the New South Wales Local Court an order that no person is to publish or release the contents of the subject report outside the AVO proceedings and that it is to be used only for the purposes of those proceedings.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 18 May 2016.
Associate:
Date: 18 May 2016
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