Halsen and Nasser Talbet

[2010] FamCA 1065

FAMILY COURT OF AUSTRALIA

HALSEN & NASSER TALBET [2010] FamCA 1065

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Objection to subpoena

Family Law Act 1975 (Cth) Part VII, ss 69ZW, 69ZW(1), 69ZW(2), 69ZW(3)(b)
Family Law Rules 2004 – Rule 15.17
Children and Young Persons (Care and Protection) Act 1998 ss 29, 29(1), 29(1A), 29(1A)(2), 29(1)(d), 29(1)(e), 29(1)(f)(ii), 29(2)
Community Welfare Act 1983 (NT) s 97(3)
Judiciary Act 1903 (Cth) s 79
Commonwealth of Australia Constitution Act (Cth) s 109

Northern Territory of Australia and GPAO and Others (1999) 196 CLR 553
S & R [2005] FamCA 379
Department of Human Services and Brigham and Anor [2010] FamCA 937

APPLICANT: Mr Halsen

RESPONDENT: Ms Nasser Talbet

INDEPENDENT CHILDREN’S LAWYER: Ms Bevan

SUBPOENA RECIPIENT: Director-General, Community Services, Department of Human Services New South Wales

FILE NUMBER: PAC 3671 of 2007

DATE DELIVERED: 26 November 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Johnston J

HEARING DATE: 2 August 2010

REPRESENTATION

FOR THE APPLICANT: No appearance by or on behalf of the applicant

SOLICITOR FOR THE RESPONDENT: No appearance by or on behalf of the respondent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Bevan Family Lawyers

COUNSEL FOR THE SUBPOENA RECIPIENT: Ms Christie

SOLICITOR FOR THE SUBPOENA RECIPIENT: Crown Solicitor's Office

Orders

1. That the application by the Independent Child Lawyer for an order to the effect that the Director-General, Community Services, Department of Human Services comply with the subpoena for production of documents dated 12 May 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Halsen & Nasser Talbet is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3671 of 2007

MR HALSEN

Applicant

And

MS NASSER TALBET

Respondent

And

Sarah Bevan Family Lawyers

Independent Child Lawyer

And

DIRECTOR-GENERAL, COMMUNITY SERVICES, DEPARTMENT OF HUMAN SERVICES NEW SOUTH WALES

Subpoena Recipient

REASONS FOR JUDGMENT

Introduction and Application

1. The matter for determination is whether an objection by the Director-General, Community Services, Department of Human Services (“the Director-General”) to produce to this Court documents identified in a subpoena served on her shall be overruled.

2. The substantive proceedings involve a dispute concerning the parenting arrangements for a young child L who was born in September 2005.

3. Ms Sarah Bevan represents the child as solicitor for the Independent Child Lawyer in the proceedings.  On 12 May 2010 Ms Bevan arranged for a subpoena to issue directed to the Proper Officer – Community Services, Department of Human Services.  That subpoena was subsequently served on the Department.  The subpoena required the Department, in effect the Director-General, to produce at Court

   All file notes, memoranda, correspondence or any other documents or writings in relation to the child [L] born […] September 2005.

4. On 19 May 2010 a Notice of Objection to the subpoena, in effect on behalf of the Director-General, was filed.  The notice indicated that objection was taken to any person having

   access to documents and parts of documents which contain notifications of abuse … reports of suspected risk of harm or disclose some of the contents of such notifications or reports. In accordance with Section 29(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 it is not possible to compel production of these documents. Additionally, they are not admissible in any proceedings other than care proceedings.

5. On 21 May 2010 Jeevani Korathota as duly authorised delegate for the Director-General made a certificate that certain documents were reports to which section 29 of the Children and Young Persons (Care and Protection) Act 1998 applies. The schedule to the certificate identified the following documents:

   Description of contents               Date

   Contact record  20 March 2010

   Assessment Record  8 March 2010

   Contact record  8 March 2010

   Assessment Record  13 January 2010

   Assessment Record  20 August 2008

   Assessment Record  26 May 2009

   Assessment Record  26 June 2007

   Assessment Record  25 June 2007

6. This action by the Director-General and the lodging by her of her objection to producing the documents is consistent with her view that because of the relevant provisions of the Children and Young Persons (Care and Protection) Act 1998 her Department has a duty not to produce the material and that, as a matter of law, it cannot be compelled to do so. 

Relevant New South Wales legislative provisions

1. The relevant provisions of the Children and Young Persons (Care and Protection) Act 1998 (“the New South Wales Act”) are sections 29(1) and 29(1A) and 29(2).

2. Sub-section 29(1) of the Act provides as follows:

   29  Protection of persons who make reports or provide certain information

   (1)If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:

   (a)the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and

   (b)no liability for defamation is incurred because of the report, and

   (c)the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and

   (d)the report, or evidence of its contents, is not admissible in any proceedings (other than care proceedings in the Children’s Court, or any appeal arising from those care proceedings), and

   (e)a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and

   (f)the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with:

   (i)the consent of the person who made the report, or

   (ii)the leave of a court or other body before which proceedings relating to the report are conducted,

   and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.

3. Sub-section 29(1A) provides as follows:

   (1A)A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.

4. Sub-section s 29(2) provides as follows:

   (2)A court or other body cannot grant leave under subsection (1) (f) (ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.

Submissions on behalf of the Independent Child Lawyer

1. Learned solicitor for the Independent Child Lawyer indicated that she accepted that the thrust of the provisions of s 29 of the New South Wales Act is to protect the identity of persons who have made reports to the Department notifying them of children at risk. But it was submitted that simply on a reading of the description of the matters included in the schedule to the Director-General’s certificate under s 29(1A) of the New South Wales Act it would appear that the documents the subject of the certificate included or encompassed documents of a broader nature than those which would only identify the reporter. It was submitted that the protection offered by s 29(1) of the New South Wales Act ought only apply to the actual information in a document relevant to identify the person reporting the matter to the Director-General and certainly not to the work product which flowed from the notification. It was submitted that there must be real suspicion that the six “Assessment Records” described in the Director-General’s Certificate under s 29(1A) of the New South Wales Act in fact included work product which could well be relevant to the proceedings.

2. It was submitted that it is essential to the process of enabling the Court to make proper decisions about the best interests of children that all relevant evidence be available to assist the Court. It is submitted that all such evidence might not be available if relevant material outside the scope of s 29(1) of the New South Wales Act was not available by reason of having been included in the s 29(1A) certificate.

3. It was further submitted that s 29(1A) presented as a real difficulty and frustration for the solicitor for the Independent Child Lawyer in trying to obtain all material relevant to what is in the best interests of the child. This is particularly because the only way that the reports the subject of protection by the Certificate could be inspected by the solicitor for the Independent Child Lawyer would be by leave of the Court pursuant to s 29(1)(f)(ii) of the New South Wales Act. Moreover, s 29(1A) of the New South Wales Act provides to the effect that the Court cannot grant such leave unless the Court is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice. It was submitted that the difficulty for the Independent Child Lawyer about this is that without being able to inspect the material referred to in the Certificate, she is unable to form a view about whether or not the material is of critical importance.

Submissions On Behalf Of The Director-General

1. It is submitted by learned counsel for the Director-General that the provisions of s 29 exist to protect the identity of persons who report children whose welfare might be at risk to the Director-General and that this encourages such reports, all of which serves the interests of the community.

2. It is submitted that s 29(1A) of the New South Wales Act is designed to be determinative of whether or not a report by a notifier is a report for the purposes of protection by operation of s 29 of the Act. It is said that any inquiry begins and ends with the certificate. It is also submitted that not only is a report or evidence of its contents inadmissible in proceedings but a person cannot be compelled to produce the report or an extract from it, or give evidence of its contents (s 29(1)(d)and(e)).

3. It was also submitted that the Director-General agrees with the submission that if there was some work product which flowed from the report, that such work product could not properly be protected under s 29 and that the Director-General does not propose to use s 29 in a manner other than is necessary to protect the identity of notifiers.

4. It was submitted that there was nothing further to produce under the subpoena

Discussion

1. I propose to leave aside for the time being the particular situation created by the making of the Certificate.  I shall return to that soon.

2. In my view it is helpful in endeavouring to understand the relationship between s 29 of the New South Wales Act and the provisions of Part VII of the Family Law Act to consider the judgment of the majority in the High Court case of Northern Territory of Australia and GPAO and Others (1999) 196 CLR 553. In that case the High Court was considering s 97(3) of the Community Welfare Act 1983 (NT) (“the Northern Territory Act”) which was in a very broad sense similar to s 29 of the New South Wales Act. Sub-section 97(3) of the Northern Territory Act provided as follows:-

   A person who is, or has been, an authorized person shall not, except for the purposes of this Act, be required to –

   (a)produce in a court a document that has come into his possession or under his control; or

   (b)disclose or communicate to a court any matter or thing that has come under his notice, in the performance of his duties or functions under this Act.

3. A subpoena was issued from this Court at Darwin requiring the manager of child and family protective services at Darwin to produce to Court all files and records in relation to a named child.

4. The majority, Gleeson CJ and Gummow J held that s 79 of the Judiciary Act 1903 in effect operated to “pick up” s 97(3) of the Northern Territory Act in effect as a surrogate law of the Commonwealth. Section 79 of the Judiciary Act provides as follows:

   (1)The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

5. A number of issues of interpretation arose in the particular circumstances of interpreting the relationship between a law of the Northern Territory and the provisions of the Family Law Act 1975 (“Family Law Act”). It is unnecessary to refer to these. There was also a question about whether by reason of s 109 of the Commonwealth of Australia Constitution Act the provisions of the Family Law Act should prevail over s 97(3) of the Northern Territory Act.  The majority said that they did not interpret the provisions of Part VII of the Act and the “paramountcy” (of the best interests of the child) provisions therein as manifesting a legislative intention to cover the broad field of all the law applicable to assist the preparation for, and the conduct of, the relevant trial.  Accordingly, there was room for s 97(3) of the Northern Territory Act to operate without varying, impairing or detracting from the operation of the “paramountcy principle” (see especially p.586).

6. In my view, in the present case, by analogy with what was said by the High Court in the above Northern Territory case, the provisions of s 29 of the New South Wales Act are “picked up” by s 79 of the Judiciary Act so that they became binding on this Court in the circumstances of the present case.

7. I note that this view is consistent with the approach which Coleman J took in the case of S & R [2005] FamCA 379. His Honour said at p.3 as follows:

   To the extent that a preliminary issues arises as to whether or not by virtue of s109 of the Commonwealth Constitution, any law of the Commonwealth and in particular for present purposes, provision of the Family Law Act 1975 (Cth), should prevail over s 29 of the State Act by virtue of any inconsistency between that State law and the law of the Commonwealth, the Court is satisfied that no such inconsistency between the State and Federal laws arises and that as such, no question of invalidity of the State Act is demonstrated.

8. His Honour then referred to the decision of the High Court in Northern Territory of Australia v GPAO (above).  His Honour then said as follows at page 3:

   The provisions of State child welfare laws are expressly preserved in the Family Law Act by virtue of the provisions of s 69ZK, the terms of which I incorporate in these reasons.

   In a brief, and by no means exhaustive, excursus into the Family Law Act with a view to ascertaining whether there are provisions in the Act, as it now reads, which might advance an invalidity argument, the Court has become aware of the provisions of s 67ZA and s 67ZB of the Family Law Act. Without hopefully unduly glossing those sections and their operation, they seem clearly predicated on, and intended to compliment the provisions of the New South Wales child welfare legislation.

   The absence of any provision in s 67ZA or s 67ZB which is inconsistent with or evidences an intention to override the provisions of the New South Wales legislation is a matter of significance. The Court accordingly proceeds on the basis that the provisions of s 29 of the State Act must be respected and adhered to in the present proceedings.

9. Since Coleman J was considering the application of s 29 of the New South Wales Act there have been further changes to Part VII of the Family Law Act with the enactment of s 69ZW thereof.

10. Sub-section 69ZW(1) and (2) of the Family Law Act provide in effect that in child related proceedings the court can order a State or Territory agency to provide the court with documents or information about:

    -any notifications to the agency of suspected abuse of a child or of suspected family violence affecting the child and/or

    -any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations and/or

    -any reports commissioned by the agency in the course of investigating a notification.

11. In my view the provisions of s 69ZW of the Family Law Act reinforce the primacy of s 29 of the New South Wales Act in protecting the identity of persons who make reports notifying agencies such as that of the Director-General about suspected children at risk. In this regard, s 69ZW(3)(b) of the Family Law Act provides in effect that nothing in an order made under s 69ZW(1) can require an agency to provide the court with documents or information that include the identity of the person who made a notification.

12. There is nothing in the provisions of s 69ZW of the Family Law Act which would lead me to a view that any part of the provisions is inconsistent with s 29 of the New South Wales Act. In particular, there is nothing in s 69ZW which purports in any manner to affect s 29(1A) of the New South Wales Act, the certificate provision. Accordingly, in my view, these provisions are to be adhered to by this Court.

13. I note that in the case of Department of Human Services and Brigham and Anor [2010] FamCA 937, judgment having been delivered on 21 October 2010, Cohen J considered an issue very similar to that in this case. This was whether the Director-General, Department of Human Services should be ordered to produce certain documents pursuant to a subpoena served on her. His Honour considered the effect of most of the legislative provisions also before me in the present case. I note that at paragraph 21, page 7 his Honour has observed as follows:

    A reading of ss 69ZW(1), (2), (3) and (4), 69 ZK(2)(c) of the Act and s 29(1)(e) of the State Act leads to the conclusion that the intention of both the state and federal legislation is clear. It is to uphold and advance the public policy in question. The primary object of the Act is to ensure that the identity of notifiers or reporters of relevance is not disclosed except with the consent of the notifier unless it is already shown by evidence to be important in determining the best interests of the child subject of the notification or affected by it to know the identity of the notifier so, for example, that persons’ reasons for notification and bona fides can be tested and possibly any investigation and decision undertaken as a result of a notification can be tested.

14. It is the case that his Honour found that one of the documents apparently identified as a report to which a certificate under s 29(1A) of the New South Wales Act applied, was not such a report. It appears that the parties consented to his Honour examining the documents upon which “careful reading” his Honour found that one of the documents did not fall into the category of reports protected by the relevant sections.

15. I must hasten to add that in the immediate proceedings there was no submission by either the Independent Child Lawyer or counsel for the Director-General to suggest that s 29 of the New South Wales Act did not apply in the present proceedings. Rather the thrust of the submissions was as I have indicated above.

Conclusion

1. With respect to learned solicitor for the Independent Child Lawyer, in my view, the result in the immediate proceedings is consistent with the position at which the learned solicitor arrived in her submissions. That is that, at least at this time, there would not appear to be any way in which the Independent Child Lawyer is able to put material before the Court which would persuade the Court to the view that it should give leave, pursuant to s 29(f)(ii) and s 29(1A)(2) of the New South Wales Act, on the basis that the material in the documents identified in the Certificate by the Director-General is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.

2. In my view the provisions of s 29(1A) of the New South Wales Act relating to the making of a certificate thereunder by the Director-General and related provisions are clear. There is a discretion given to the Director-General to protect the identity of persons who make reports to the Director-General’s Department by the issue of a certificate identifying documents relating to children as being such reports in the manner provided under s 29(1A). There is a quite limited right given to the Court to grant leave to identify the reporter in circumstances where the Court is satisfied that the evidence contained in the report is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.

3. There is no evidence before this Court which would go near satisfying that admittedly high test required for the granting of leave.

4. In all the circumstances, in my view, there is no basis for the Court to order the Director-General to comply further with the subpoena.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice W P Johnston delivered on 26 November 2010.

Associate:     

Date:              26 November 2010