Independent Children’s Lawyer and Din & Anor

[2020] FamCA 832

FAMILY COURT OF AUSTRALIA

INDEPENDENT CHILDREN’S LAWYER & DIN AND ANOR [2020] FamCA 832

FAMILY LAW – PRACTICE AND PROCEDURE – Interim suppression order

Family Law Act 1975 (Cth)

APPLICANT: Independent Children’s Lawyer

FIRST RESPONDENT: Mr Din

SECOND RESPONDENT: Ms Gale

FILE NUMBER: LEC 93 of 2019

DATE DELIVERED: 15 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 September 2020

REPRESENTATION

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mannering, Northside Family Law Centre

COMMISSIONER FOR QUEENSLAND POLICE SERVICE: Ms Vassilakos, Solicitor-Advocate

FIRST RESPONDENT: No appearance

SECOND RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. A suppression order by way of an interim order issue in relation to all business records, any records and information in the possession of the Queensland Police Service and information held on or sourced from QPRIME in relation to an on-going investigation as particularised in email correspondence sent from Ms S to the Independent Children’s Lawyer by way of email sent 9 September 2020 at 11:33 am as contained in Annexure “RM1” to the affidavit of Ms Mannering affirmed 14 September 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Din & Gale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 93 of 2019

Independent Children’s Lawyer

Applicant

And

Mr Din

First Respondent

And

Ms Gale

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have determined the appropriate course is to make an interim order pursuant to s 102PH of the Family Law Act 1975 (Cth).

2. Given the oral application made on behalf of the Commissioner for a suppression order and non-publication order, it seems to me that s 102PH(1) empowers the Court – without determining the merits of that application – to make an order as an interim order to have effect, subject to revocation by the Court of the order, until the application is determined. I make such order by way of suppression order, having regard to the definition set out in s 102P of the Act in relation to the terms “publish”, “non-publication order” and “suppression order” because it appears to me that a suppression order is, given the definition of that phrase in that section, the most appropriate phraseology to pick up and the most appropriate order to make.

3. I take into account in making such an interim order pursuant to s 102PH of the Act, as I am required to do by s 102PD of the Act, that in deciding whether to make such an order I must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. I have taken that primary consideration – if I can use that phrase – into account in determining to make an interim order. I also note, of course, that the power to make a suppression order exists pursuant to s 102PE of the Act and that such interim order may be made on grounds permitted in relation to the disclosure of, it seems to me – at least on the basis of the information available to me at this stage – the contents of the affidavit provided by the Independent Children’s Lawyer and the annexure to the same.

4. The most appropriate aspect of s 102PE is probably that which is found under (1)(b), perhaps (i) and (iii), albeit that that is perhaps anticipatory in this current scenario, rather than information that has already been produced under a subpoena; perhaps, also (iv), being information lodged with the Court, given the submissions made in relation to the position of the Commissioner if I were persuaded, as I have been, to make at least, at this stage, an interim suppression order. 

5. The other aspect I think it appropriate that I note is that the grounds I have relied on for making an order on an interim basis at this stage are those set out in s 102PF(1)(a):  namely, that I am satisfied on a prima facie basis – given the contents of the affidavit provided by the Independent Children’s Lawyer and the contents of the annexure to the same in which it is asserted that permitting the parents to become aware of the existence of the investigation at this stage would jeopardise the same – that the order is necessary to prevent prejudice to the proper administration of justice: that being the ground provided under s 102PF(1)(a).  It is unnecessary, therefore, that I give consideration to whether any other ground as prescribed in s 102PF is made out in the current circumstances.

6. It also seems to me appropriate – given that I am empowered by virtue of s 102PG(4) to make an order subject to such exceptions and conditions as I think fit and as are specified in the order – that at least I give consideration to making the order subject to an exception which would permit the Independent Children’s Lawyer to be made aware of the contents of the documents. 

7. I do not intend at this stage, though, to make an order with that exception in it. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 September 2020.

Associate: 

Date:              15 September 2020