Janzen & Janzen
[2021] FCCA 1815
•5 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Janzen & Janzen [2021] FCCA 1815
File number(s): NCC 3971 of 2018 Judgment of: JUDGE BETTS Date of judgment: 5 August 2021 Catchwords: FAMILY LAW – parenting proceedings – allegations of family violence made against both parents – father is a serving NSW Police officer – ICL has become aware of allegedly violent behaviour of father in the workplace – ICL has issued subpoena to NSW Commissioner of Police seeking all records regarding complaints of excessive force, violence, coercion or control, investigations, findings and/or judgments in respect to the father – Commissioner objects to producing documents – consideration of statutory privilege against admissibility of documents in Police Act NSW and whether it is also a privilege against production of documents for inspection – consideration of whether there is a legitimate forensic purpose for subpoena or it is an abuse of process or fishing expedition – Commissioner’s objections dismissed Legislation: Family Law Act 1975 (Cth), Part VII
Federal Circuit Court Rules 2001
Federal Court Rules 2011
Judiciary Act 1903 (Cwlth)
Law Enforcement Conduct Commission Act 2016 (NSW)
Police Act 1990 (NSW)
Privacy Act1988
Uniform Civil Procedure Rules 2005 (NSW)
Cases cited: Belrose & Belrose [2020] FCCA 177
Burmah Oil Co Ltd v Bank of England [1980] AC 1090
Commissioner of Police v Hughes [2006] NSWCA 306
Commonwealth of Australia v Northern Land Council & Anor (1991) 103 ALR 267
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) QBD 55
Dupont & Chief Commissioner of Police & Anor (2015) 53 Fam LR 378
Grant and Downs [(1976) 135 CLR 674]
Relationships Australia v Pasternak & Pasternak and Children’s Representative (1996) FLC 92-699
Strickland v State of NSW [2016] NSWDC 30
Trade Practises Commission v Port Adelaide Wool Company Pty Ltd and Sinclair (1995) 132 ALR 645
Unitingcare – Unifam Counselling & Mediation and Harkiss & Anor [2011] FamCAFC 159
Number of paragraphs: 92 Date of last submission/s: 31 March 2021 Date of hearing: 31 March 2021 Place: Newcastle Solicitors for the Applicant Self-Represented/No Appearance Solicitors for the Respondent Resolve Family Law Counsel for the Respondent Mr Bates Solicitors for the ICL Jennifer Blundell and Associates Counsel for the ICL Mr Mooney Solicitors for the NSW Commissioner of Police / Objector Mr Keevers of Crown Law ORDERS
NCC 3971 of 2018 BETWEEN: MR JANZEN
ApplicantAND: MS JANZEN
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS THAT:
1.Save for any public interest immunity claim, the objection on behalf of the NSW Commissioner of Police to the ICL’s subpoena is dismissed.
2.The Court will hear from the parties as to the listing of the proceedings for further argument on the public interest immunity claim and as to any other relevant issues arising out of these reasons for judgment.
3.The proceedings are adjourned to 19 August 2021 at 9.30am for Directions. The parties and their legal representatives have leave to appear by telephone and the steps to be followed are:
a)Dial: 02 9161 1229
b)Enter Conference ID: 959 760 529#
c)When your matter is called, press *6 to unmute. Please note that the Court will mute all participants until the matter is called.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Janzen & Janzen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
OVERVIEW
These are parenting proceedings in which each parent accuses the other of perpetrating family violence. The allegations are disputed. The resolution of these factual disputes at trial will inform the final parenting orders which are in the best interests of the parties’ two (2) children aged 6 and 8.
The father is a serving NSW Police officer. The mother asserts that his family violence was of a coercive and controlling nature.
As a result of inspecting subpoenaed material, the Independent Children’s Lawyer (“ICL”) has become aware that the father has potentially engaged in inappropriately violent or intimidating conduct at work. In particular:
· that the father has admitted to (or even pleaded guilty to) some allegedly violent and intimidating behaviour towards minors;
· that in or about 2018, significant concerns were raised with the father about his perceived “old school” policing style – involving potential use of aggressive language in order to gain compliance - and the associated risk that it would attract further complaints about him;
· that in or about February 2020 there was “a further incident where [the father] has been accused of the use of unnecessary force”.
In the face of these allegations – as yet untested - the ICL has subpoenaed the father’s employment records held by the NSW Commissioner of Police (“the Commissioner”). As amended, the subpoena seeks that the Commissioner produce:
All records regarding complaints relating to excessive force, violence, coercion or control, investigations, findings and/or judgments in respect to [the father] to the date of issue of this subpoena.
By Application in a Case, the Commissioner resists the subpoena and seeks that it be set aside. The ICL presses the subpoena; the mother supports the ICL. The father did not himself object to the subpoena, nor did he participate in this hearing. I can only infer that he will abide the Court’s determination.
THE ISSUES TO BE DETERMINED
To resolve this case I am required to address two (2) key issues:
(i)Whether in answer to the subpoena, the Commissioner is required to produce documents for inspection which the Police Act 1990 (NSW) renders inadmissible in these proceedings (“the statutory privilege” issue); and
(ii)Whether the subpoena should be set aside on the basis that it lacks a legitimate forensic purpose, is no more than a fishing expedition and is otherwise an abuse of the court’s process (“the legitimate forensic purpose” issue.)
The statutory privilege issue defines the documents that the Commissioner is required to produce in the first instance. It is convenient to deal with this issue first.
To be clear, the Commissioner resists producing any documents in answer to the subpoena. If the Court concludes that the Commissioner is required to produce so much as one document, the Commissioner intends to press a “public interest privilege”. But as this was only raised at the hearing, neither the ICL nor the mother were in a position to meet it. In the circumstances it was agreed that this privilege would have to be argued later if necessary.
DOCUMENTS RELIED UPON
I heard this matter on 31 March 2021.
The Commissioner was represented by Mr Keevers, a solicitor from the NSW Crown Solicitor’s Office. The ICL was represented by Mr Mooney of counsel and the mother by Mr Bates of counsel.
Mr Keevers formally relied upon an Amended Application in a Case filed on 29 March 2021 (which raised the public interest privilege) and an affidavit of Mr B, a solicitor in the employ of the NSW Crown Solicitor’s Office.
The Commissioner, the ICL and the mother all relied upon written submissions. At my request, Mr Keevers also provided the court with a helpful bundle of relevant legislation and authorities, including from other Australian jurisdictions with similar legislative schemes. The bundle was marked as exhibit “A” and I thank Mr Keevers for it.
THE NATURE OF PARENTING PROCEEDINGS
It is helpful to begin with some basic principles governing the conduct of parenting proceedings under Part VII of the Family Law Act (“the Act”).
Making a parenting order is a discretionary exercise in which the Court must regard the best interests of the children as the paramount consideration: s 60CA, s 65AA.
The mandatory best interests considerations are prescribed in s 60CC of the Act. There are two (2) “primary” considerations in s 60CC(2) and fourteen (14) “additional” considerations in s 60CC(3). By their nature, the mandatory considerations are broadly-drafted. Their subject matter can overlap to some extent; factual findings can be relevant to more than one mandatory consideration.
The expression “family violence” is defined in s 4AB of the Act as:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”
Though this is an inclusive definition, the section goes on to give some specific legislative examples of actions that would fall within it. These include assaults, stalking, intentional property damage, unreasonably withholding financial support when a family member is primarily or predominantly dependent upon the person, preventing a person from keeping their family or cultural connections, and unlawfully depriving a family member of their liberty.
Section 4AB goes on to provide that a child is “exposed” to family violence where they see or hear it occur, or where they otherwise experience its effects. Again it is an inclusive definition, with some specific legislative examples being given. These include witnessing assaults, hearing threats, comforting a family member who has been assaulted, cleaning up property damage or being present when Police or Ambulance officers attend the aftermath.
Family violence is expressly referred to in a number of the mandatory considerations in s 60CC. The first primary consideration is “the benefit to the child of having a meaningful relationship with both parents”: s 60CC(2)(a). But the second primary consideration is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to…family violence”: s 60CC(2)(b). Of the two primary considerations, the Court is directed to give greater weight to the latter: s 60CC(2A).
Two (2) of the “additional” considerations also expressly refer to family violence. Section 60CC(3)(j) requires the Court to consider any relevant family violence. Section 60CC(3)(k) requires the Court to consider the terms of any past or present family violence order, and any relevant inferences that can be drawn from the order taking into account the terms of the order, the relevant evidence and any findings.
Adverse findings about a parent’s perpetration of family violence can also impact a number of the other “additional” considerations in s 60CC(3). For instance, the findings may be relevant to that parent’s “capacity to provide for the child’s needs” in s 60CC(3)(f), or that parent’s “attitude to the responsibilities of parenthood.” in s 60CC(3)(i).
The Act provides that, when making a parenting order, the Court should apply a rebuttable statutory presumption that it would be in the children’s best interests for the parents to have equal shared parental responsibility for them: s 61DA(1). The making of such an order in turn engages the statutory pathway in s 65DAA which requires that the first option the Court must consider is an order for the children to spend equal time with both parents.
Notably, the statutory presumption in s 61DA(1) does not apply where “there are reasonable grounds to believe that…a parent…has engaged in…family violence: s 61DA(2)(b).
Family violence also has procedural relevance.
Where there are reasonable grounds to believe that a parent has perpetrated family violence or poses a risk of family violence, the Court can waive the requirement for family dispute resolution prior to commencing proceedings. This enables quicker access to justice: s 60I(9)(b)(iii), s 60I(9)(b)(iv).
Parties are obliged to inform the Court as to the existence and terms of any relevant family violence orders: s 60CF.
Safety plans can be put in place if so requested, including that the alleged victim parent be placed into a safe room or otherwise be permitted to participate in the proceedings from another location other than within the courtroom itself. Section 102NA of the Act provides that in certain instances involving family violence the Court can, or must, make orders preventing parties from personally cross-examining each other. But even where s 102NA does not apply, section 102NB still requires that during cross-examination the court put appropriate protections in place for the alleged victim of family violence.
The Court also has a general power to configure the seating arrangements in the courtroom so as to best facilitate the conduct of hearings. In a case involving family violence allegations a Judge may decide to seat the parties and their legal representatives in such a fashion as to keep the parties as physically apart as possible and to try to avoid eye contact between them if necessary.
In conclusion, the concept of family violence is embedded in the fabric of Part VII; it is always a relevant consideration for the Court both procedurally and substantively. But like any behaviour which exposes children to harm or risk of harm, the significance of family violence varies in any given case according to its gravity. Careful fact-finding and prediction of future risk are required; there cannot be “absolute” rules. Each case turns on its own facts.
THE ROLE OF THE ICL
If it appears to the Court that the children’s interests ought to be independently represented, the Court may appoint an ICL: s 68L. Their role is to advance the best interests of the children by:
· forming an independent view as to what is in the children’s best interests, based on the available evidence: s 68LA(2)(a);
· acting in relation to the proceedings in what the ICL believes to be in the children’s best interests: s 68LA(2)(b).
An ICL can greatly assist the Court to arrive at a best interests outcome, particularly in high conflict cases where agreed facts are few and far between and the Court cannot always get to the truth by relying upon the parties’ own partisan evidence and investigations. An ICL acting as an “honest broker” on behalf of the children can be invaluable.
I respectfully adopt Mr Mooney’s submission that the ICL:
is not an ordinary adversarial party to the proceedings. One of the ICL’s roles is to gather material to assist the court in making decisions which are in the best interests of children subject to the relevant Commonwealth legislation. The role is often described as akin to that of Counsel assisting and includes (but is not limited to) an evidence gathering and investigatory function.
I broadly accept the Commissioner’s submission that the ICL’s power and responsibility to conduct investigations is not unconstrained. An ICL is still a party to the proceedings and like any other party who issues a subpoena, an ICL is bound by the usual attendant obligations including that the subpoena have a legitimate forensic purpose. That said, a degree of additional latitude may be extended to an ICL that might not otherwise be extended to a strictly adversarial party such as a parent.
THE SCOPE OF THE STATUTORY PRIVILEGE IN THE POLICE ACT
The long title to the Police Act describes it as:
an Act to establish the NSW Police Force, to provide for the management of the NSW Police Force and for the employment of its members of staff; and for other purposes.
Section 79(1) of the Judiciary Act 1903 (Cwlth) obliges this court, as a federal court, to apply the Police Act to these proceedings as though it was a surrogate law of the Commonwealth:
Section 79 State or Territory laws to govern where applicable
(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.
The ICL’s subpoena effectively seeks production of documents which the Commissioner holds under Part 8A of the Police Act entitled “Complaints about the conduct of Police officers.”
Section 170 is the key provision:
170 Certain documents privileged
(1)A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings--
(a) that concern the conduct of police officers, and
(b)that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.
(2) Subsection (1) does not apply to or in respect of--
(a)a document comprising a complaint, or
(b)a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or
(c)a document that a witness is willing to produce.
(3)Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.
Pursuant to s 170(2)(a), the only admissible documents captured by the ICL’s subpoena are the documents comprising the complaints.
As an aside, the identities of the complainants are ordinarily not be disclosed: s 169A. But an exception exists where such disclosure is for the purposes of any legal proceedings before a Court or Tribunal: s 169A(d). This would include the present proceedings.
Returning to s 170, the ICL and the mother jointly contend that the subpoena requires the Commissioner to produce not just the admissible complaint documents, but also the related inadmissible documents. They contend that inadmissible documents must still be produced for inspection so that other relevant information and evidentiary trails may be uncovered.
The Commissioner contends that the statutory privilege against admissibility is also a privilege against production of those documents. The Commissioner specifically relies upon the only case directly on point - Belrose & Belrose [2020] FCCA 177 - in which her Honour Judge Terry so held. The Commissioner contends that as a matter of judicial comity I should follow Belrose unless I consider it to be plainly incorrect.
The ICL and the mother respectfully contend that Belrose is incorrect or otherwise should not be followed.
In Belrose her Honour said:
23.S. 170 deals with the admissibility of documents and does not on its face allow the Commissioner to refuse to produce the documents for inspection. However Counsel for the Commissioner submitted that production should not be required. He referred me to Commissioner of Police v Hughes a NSW Court of Appeal decision in which it was observed that given that s.170(1) of the Police Act made a document inadmissible at a hearing, it was the subject of a statutory privilege which was a complete answer to its production. That pronouncement was based on a particular provision in NSW legislation but [the Commissioner] asserted that the same effect was achieved by r.2.08B(1)(a) of the Federal Circuit Court Rules.
24. R.2.08B provides as follows:
(1)A party may inspect any document in a general federal law proceeding except:
(a) a document for which a claim of privilege has been made:
(i) but not decided by the Court; or
(ii) that the Court has decided is privileged; or
(b)a document that the Court or a Registrar has ordered be confidential.
25.This rule does not assist the Commissioner because it only applies to general federal law proceedings…
Pausing here, I respectfully agree with her Honour that the NSW Court of Appeal decision in Commissioner of Police v Hughes [2006] NSWCA 306 did not assist. In Hughes the proceedings were governed by the Uniform Civil Procedure Rules 2005 (NSW) which expressly provided that a party did not have to produce documents which were subject to a statutory privilege against admissibility: see rule 1.9. The rule applied in Hughes has no counterpart for the purposes of these proceedings.
In Belrose her Honour went on to hold, by reference to two Full Court authorities, that the Police Act did confer an immunity against production. The authorities relied upon by her Honour were Unitingcare – Unifam Counselling & Mediation and Harkiss & Anor [2011] FamCAFC 159 (“Unitingcare”) and Relationships Australia v Pasternak & Pasternak and Children’s Representative (1996) FLC 92-699 (“Pasternak”).
Pasternak concerned a former provision in the Family Law Act (s. 18) which rendered inadmissible things said or admissions made to a marriage counsellor. The trial Judge ordered that the inadmissible material was still required to be produced for inspection and on appeal the Full Court (Lindenmayer, Kay & Smithers JJ) overturned that decision.
In Pasternak the Full Court referred with approval to the observations of Branson J of the Federal Court in Trade Practises Commission v Port Adelaide Wool Company Pty Ltd and Sinclair (1995) 132 ALR 645 (“Port Adelaide Wool”) in the context of client legal privilege.
The relevant Federal Court rule in that case (Order 15, rule 15) provided that the Court shall not order a party to produce a document unless satisfied that the order is “necessary”. Branson J had observed that:
The documents required to be discovered by O 15 of the Federal Court Rules are not limited to documents which would be admissible in evidence: Commonwealth v Northern Land Council at 290. However, the fact that evidence will not be able to be adduced, over objection, if it would result in disclosure of the contents of a confidential document will, in my view, ordinarily be telling as to whether the production of that document can be said to be necessary for the fair disposal of the proceedings.
It would be a curious result, in my view, if a party to proceedings in this court could be required to produce for inspection by the other party or parties during pre-trial procedures, or indeed in court, a confidential document prepared, for example, for the dominant, but not the sole, purpose of a lawyer providing legal advice to that party, notwithstanding that at trial that party could successfully object on the ground of client legal privilege to any evidence being adduced which would result in disclosure of the contents of that document. That is, logic at least would seem to suggest that the ambit of client legal privilege should be constant throughout the litigation process…
As the High Court pointed out in Grant and Downs [(1976) 135 CLR 674], the public interest that trials should be conducted in circumstances in which all relevant documents are available to the parties has always given way to the paramount public interest reflected in…legal professional privilege. Now that this paramount public interest has…been extended…by the statutory adoption of a dominant purpose test…the same test in my view, will ordinarily be adopted for the purposes of Order 15 of the Federal Court Rules. That is, the Court will not in my view, ordinarily be satisfied that an order for the production of a document is necessary if evidence of the contents of such document could not be adduced at trial over the objection of the party discovering the document on the ground of client legal privilege.
In Pasternak the Full Court specifically endorsed Branson J’s observations:
Whilst…strictly obiter, so far as the point under consideration here is concerned, we nevertheless find it quite persuasive. Moreover, the ratio of her Honour’s decision contained in the final sentence of the passage quoted above is particularly relevant to the circumstances of this case where what is sought by a party is the production for inspection by a non-party of that non-party’s private, confidential records.
Their Honours placed particular significance on the importance attached to counselling and reconciliation in the Family Law Act with the effect that the statutory privilege against admissibility of things said to a marriage counsellor should be read as also conferring an immunity against production. Their Honours considered in that case that there was no relevant distinction to be drawn between legal professional privilege and the statutory privilege attaching to marriage counselling.
Unitingcare is an unreported decision of Coleman J sitting as the Full Court. In that case the trial Judge had ordered Unitingcare to produce documents evidencing communications made in the course of family counselling. On appeal, Coleman J overturned that decision.
In Unitingcare the relevant provisions were ss 10D and 10E of the Family Law Act:
10D Confidentiality of communications in family counselling
(1)A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.
(2)A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3)A family counsellor may disclose a communication if consent to the disclosure is given by:
(a)if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i)each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii)a court.
(4)A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a)protecting a child from the risk of harm (whether physical or psychological); or
(b)preventing or lessening a serious and imminent threat to the life or health of a person; or
(c)reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d)preventing or lessening a serious and imminent threat to the property of a person; or
(e)reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f)if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5)A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.
(6)Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.
(7)…
(8)In this section:
"communication" includes admission.
10E Admissibility of communications in family counselling and in referrals from family counselling
(1) Evidence of anything said, or any admission made, by or in the company of:
(a)a family counsellor conducting family counselling; or
(b)a person (the professional ) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c)in any court (whether or not exercising federal jurisdiction); or
(d)in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a)an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b)a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources…
Citing Pasternak (including the judgment of Branson J), Coleman J held that the statutory privilege provided an immunity against production; disclosure was only required in the limited statutory context of s 10D(2) and s 10E(2). The Court could not otherwise compel disclosure.
The ICL and the mother contend that the nature of the statutory privilege in the Police Act considered in Belrose is materially distinguishable from the statutory counselling privileges considered in Pasternak and Unitingcare and from client legal privilege.
The ICL contends that client legal privilege discussed by Branson J in Port Adelaide Wool has “deeper legal roots” than the privilege in the Police Act. The ICL contends that the existence of legal professional privilege has long been recognised as fundamental to the proper administration of the justice system. By its very nature, if legal professional privilege is to be any sort of privilege at all, it must be jealously guarded by the courts and applied consistently during proceedings insofar as this is possible. Logic requires that it be a privilege not only against admissibility of documents, but also against being required to produce documents for inspection.
But while there appears to be some force in those submissions, the Full Court did not itself draw a distinction between client legal privilege and the relevant statutory counselling privileges in the Family Law Act. Moreover there are similarities between the drafting of s 170 of the Police Act and s 10E of the Family Law Act in that each provides that certain evidence is inadmissible.
Section 10D of the Family Law Act does however go further than s 170 of the Police Act. Apart from limited circumstances in s 10D(2), a family counsellor is positively prohibited from disclosing the matters referred to in that section. There is an obvious public purpose underpinning s 10D and s 10E, namely that people experiencing a marriage or family breakdown need to be able to speak freely and openly. Family counselling has deliberately been structured as an inherently private and confidential space. This is unsurprising given the intimate personal issues involved and the principles set out in s 43 of the Family Law Act which include protecting the institution of marriage, protecting and assisting the family unit and assisting parties to reconcile or improve their inter-family relationships.
The ICL contends that the statutory privilege in the Police Act should be construed more narrowly on the basis that:
…there is no pre-existing privilege in evidence of a complaint concerning a police officer. Such a document is not created in similar circumstances of confidentiality – indeed, the contrary might be argued – and should not be permitted to hide under the cloak of non-disclosure granted to counselling records or legal advice.
There is some substance to this submission; the statutory privilege in s 170 of the Police Act includes a specific carve-out for documents comprising a “complaint”. In my view, this carve-out is a material difference between the respective legislative schemes.
No doubt this Court also needs to take into account the important public purposes which underpin s 170 of the Police Act.
The Commissioner needs to be able to fully and properly investigate allegations of Police misconduct. This can include assessing the integrity of Police officers. One such example referred to in Hughes is where a wallet with money may be left in a place where a Police officer will come across it and the Commissioner will check whether or not the Police officer duly records the finding, or pockets some or all of the cash.
I also accept the Commissioner’s submission that like any other large organisation, there will from time to time be complaints of heinous Police misconduct, including serious criminal offending or instances of corruption. In those circumstances the NSW Law Enforcement Conduct Commission may conduct an inquiry under its own legislative scheme - the Law Enforcement Conduct Commission Act 2016 (NSW). Such an investigation may in turn generate evidence and documents which the Commissioner will then hold under Part 8A of the Police Act.
However, there is a material distinction to be drawn between “ordinary” Part 8A documents held by the Commissioner and those documents arising out of an investigation by the Law Enforcement Conduct Commission. This Commission, like ICAC and other governmental anti-corruption bodies, can compel a Police officer (or others) to cooperate in an essentially private investigation and to provide evidence. Their ordinary right to claim privilege against self-incrimination is abrogated, but on the express basis that such evidence cannot then be used against the person in another proceeding: Law Enforcement Conduct Commission Act 2016 (NSW), s 57.
It was not suggested in this case that the Commissioner held any relevant documents arising out of an investigation by the Law Enforcement Conduct Commission. Rather, it is a hypothetical scenario raised by the Commissioner in support of his general position that inadmissible documents held under Part 8A should not be required to be produced.
While there is potential force in that hypothetical submission, it is also patently clear that the Commissioner would hold a great many documents under Part 8A of the Police Act which have no connection with the Law Enforcement Conduct Commission. If the subpoena needed to be read down so as to exclude documents related to the Law Enforcement Conduct Commission (or some other similar body with coercive powers) then this could be done.
In short, I do not see this hypothetical scenario as setting the relevant “standard” by which to gauge the ambit of the statutory privilege in s 170 of the Police Act.
In contending that the Commissioner should be required to produce the subpoenaed documents, the mother and the ICL specifically referred to an unreported decision of his Honour Judge Levy of the NSW District Court in Strickland v State of NSW [2016] NSWDC 30, unreported, 23 March 2016. In that case, the defendant (on behalf of the Commissioner) contended that s 170 of the Police Act extended to a privilege against production.
Having reviewed various authorities concerning the purpose of issuing a subpoena, and considered the underlying principles, his Honour relevantly held:
38.The defendant’s objection which invokes s 170 of the Police Act 1990 centres around the notion of admissibility because of the terms of s 170(1) of that Act.
39.In my view, that argument overlooks the multiplicity of considerations that justify disclosure. The defendant’s focus on admissibility pursuant to s 170(1) is but one factor. Relevance is another factor. Non-admissible documents may nevertheless “add in the end in some way or other to the relevant evidence in the case”... They may be used for example, to base a notice to admit facts, which, if denied, could then lead to other steps, such as interrogatories.
40.The production on subpoena of material that is not admissible in evidence may well have the effect of assisting the parties to evaluate other evidence or material, and which might aid the making of their respective forensic decisions.
41.In my view the defendant has conflated the admissibility question with the question of the “use” to which the material could be put.
42.I therefore reject the defendant’s arguments based on the provisions of s 170…
I accept the Commissioner’s submission that Strickland appears to conflict with the Court of Appeal’s decision in Hughes in circumstances where the same statutory regime applied. Moreover, the Commissioner contends that Strickland is something of a stand-alone decision; it has not been applied since.
But as both Hughes and Strickland are distinguishable anyway given the different statutory regime, Belrose remains the only case directly on point.
The Commissioner contends that the approach in Belrose is preferable to that in Strickland as it is based upon principles that were enunciated by the Full Court of the Family Court, and adopting in one case observations by the Full Court of the Federal Court. As both are superior courts of record it is submitted that I ought to follow them rather than the unreported decision of a District Court Judge.
But in Commonwealth of Australia v Northern Land Council & Anor, the Full Court of the Federal Court observed that, in the context of disclosure under O 15 of the Federal Court Rules, a document “relates to a matter in question between the parties” and is thus discoverable:
if it is “reasonable to suppose” that the document “contains information which may – not which must – either directly or indirectly enable the party requiring [it] either to advance his own case or to damage the case of his adversary”. A document will answer that description if it may fairly lead to a train of inquiry which might have either of those consequences: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) QBD 55 at 62-3 per Brett LJ and at 60 per Baggallay LJ. This extended meaning was described by Lord Scarman in Burmah Oil Co Ltd v Bank of England [1980] AC 1090 at 1141 as “a vital part of the law of discovery, enabling justice to be done where one party knows the facts and the other does not”. The class of documents thus discoverable is not limited to those which would be evidence to prove or disprove any matter in question in the action…
These observations relate to the obligation of discovery as between parties in Federal Court proceedings, but although the present context is different there are some common threads. In this case, though not a party to the proceedings, the Commissioner holds documents about a party which may be relevant to this Court’s assessment as to the father’s propensity to commit violent or coercive behaviour in a workplace environment. This in turn may bear on the likelihood or otherwise of him perpetrating family violence in his home environment. The father may or may not already be aware of the contents of the Part 8A documents held about him by the Commissioner; the mother certainly is not.
In the end I have come to the view that s 170 ought not to be read as conferring a privilege against production of documents that are inadmissible in these proceedings. My reasoning is that:
·On its face the Police Act does not expressly provide that documents are immune from production. The legislation could easily have been drafted in those terms if that had been the clear intention of the NSW Legislature;
·In my view the nature of the statutory privilege in the Police Act is materially different from legal professional privilege, and from the counselling privilege discussed in Pasternak and Unitingcare. Specifically, the Police Act includes a specific carve-out which allows complaints against police officers to be admissible in a court. To that extent, the Police Act anticipates at least partial disclosure of the documents held by the Commissioner under Part 8A. No such carve-out exists for counselling in the provisions of the Family Law Act considered by the Full Court in Pasternak and in Unitingcare. In my view this is because family counselling – and for that matter consultations by a party with their lawyer – are inherently confidential and private matters. I accept the ICL’s submission that, in contrast, a complaint about a Police officer is not inherently confidential. By its nature, how could it be?
·The Court of Appeal decision in Hughes turned upon the express provisions of the Uniform Civil Procedure Rules NSW which have no application here. To the extent that rule 2.08B of the Federal Circuit Court Rules include an analogous provision prohibiting inspection of privileged documents, that rule is expressly limited to general federal law proceedings and does not include family law proceedings. It was not this Court’s intention to apply rule 2.08B to family law proceedings;
·Parenting proceedings pursuant to the Family Law Act should be conducted in such a manner as to, if possible, ensure that the best interests of children are promoted whichever State or Territory they reside in. Parenting proceedings are not “ordinary” civil proceedings in which a plaintiff sets out to prove the elements of their cause of action and the defendant the elements of their defence. Though a civil proceeding, the nature of the Court’s inquiry is necessarily broader; there are many relevant mandatory considerations which the Court is required to weigh up in arriving at a best interests decision. If a third party holds records which are relevant to a best interests determination, this Court should be slow to exempt such records from production unless the relevant State or Territory legislation clearly provides otherwise. In saying this I am not disregarding s 79 of the Judiciary Act but rather giving effect to it.
It follows that I am respectfully declining to follow the decision of her Honour Judge Terry in Belrose. I regret that there are now two conflicting authorities in this Court on the same point but I consider that I should apply my own interpretation of the law. Given that the Commissioner indicated his intention to appeal any adverse ruling, it seems to me that the Full Court of the Family Court may ultimately have to determinatively decide the question.
SHOULD THE SUBPOENA BE SET ASIDE AS HAVING NO LEGITIMATE FORENSIC PURPOSE?
I have already addressed the relevance of family violence in parenting proceedings. It is an entirely normal step for a party (including an ICL) to issue subpoenas directed to obtaining potentially relevant evidence about family violence.
I accept the ICL’s submission that a legitimate forensic purpose does not require that the documents sought be formally admissible, and that they may be put to purposes including suggesting lines of inquiry in fulfilling her evidence-gathering role suggesting lines of cross-examination and evaluating other evidence already available.
Whether a parent’s violent, intimidating or coercive behaviour in a workplace can be relevant to the likelihood of that parent perpetrating family violence at home was considered by a single Judge of the Family Court (Bennett J) and later taken on appeal to the Full Court in Dupont & Chief Commissioner of Police & Anor (2015) 53 Fam LR 378.
In that case the father was a serving Victorian Police officer and the mother alleged that he had a controlling and abusive personality which was relevant to the orders the court should make as to parental responsibility for their children. She had therefore subpoenaed documents held by the Victorian Commissioner in respect of all investigations into the father’s conduct at work.
At first instance Bennett J had observed that it was incumbent upon the issuing party to establish that inspection of the documents served a legitimate forensic purpose in the proceeding. This was done by demonstrating that there was a reasonable possibility that the documents would materially assist the issuing party’s case, although her Honour said that the threshold was “low”.
As to the relevance of workplace conduct per se her Honour observed that:
72.In the absence of evidence by an appropriately qualified person (expert) that persons about whom work complaints are made are poor parents or are abusive in their interpersonal relationships, evidence of such complaints is of very low or perhaps no probative value…
But notwithstanding those reservations, her Honour was in fact satisfied that the mother had made out a legitimate forensic purpose for different reasons - in that:
76.…if given access to the documents, [the mother] would be in a position to identify which members of the Victoria Police had made complaints…could conceivably approach those members with a view to seeing if there is any relevant evidence to be given by that member.
The Full Court dismissed the appeal from Bennett J’s decision but this aspect was not specifically challenged. The focus of the appeal was the Commissioner’s successful public interest immunity claim. Beyond recording Bennett J’s findings at first instance, the Full Court did not otherwise address the issue of legitimate forensic purpose.
In Belrose, her Honour Judge Terry observed that:
45.…[T]he decision of a first instance judge is often persuasive when the court is dealing with a similar case. However I am [not] prepared to find that the request for production of complaint documents in the case before me lacks forensic relevance simply because the wife advanced the same argument as the issuing party in Dupont and that argument did not find favour with Bennett J.
46.Bennett J was dealing with a particular case with a particular factual matrix and she inspected the documents which were the subject of the objection before coming to her decision, something I was not asked to do. The issue of whether the production of complaint documents in respect of a serving officer would or would not serve a legitimate forensic purpose was not exhaustively argued before me and because I do not need to determine it I do not intend to do so.
With respect, I agree with her Honour Judge Terry and I do not accept the blanket statement in paragraph 72 of Bennett J’s reasons in Dupont. In my respectful view, expert evidence is not necessarily required in order to establish that violent or coercive behaviour perpetrated by a parent in a workplace setting (or in some other domain) is potentially relevant to the Court’s assessment of the probability of that parent having perpetrated past family violence at home, or doing so in the future.
The Commissioner seems to have conceded as much at the hearing before me, submitting that:
…If [the provisions of the Police Act] didn’t exist and subject to any claim of public interest immunity, the Commissioner accepts that complaints and related documents relating to violent conduct of the father would be relevant in respect of these proceedings where violence has been alleged against him in a family violence context…
I accept that Police officers are in a somewhat more vulnerable position than most parents. They are authorised - and in an appropriate case expected - to use force to restrain, subdue and arrest people who can include some of our society’s most dangerous or violent. The use of authorised force in such circumstances would be irrelevant per se in parenting proceedings. (Similar observations might apply to prison guards, security guards and other persons whose occupation involves the use of force.)
A Police officer’s repeated excessive use of force, intimidation or inappropriately coercive behaviour at work (resulting in complaints) may however be indicative of a relevant propensity to act in a similar way at home. But because the nature of policing work does involve use of force, such matters need to be considered carefully. Nothing in this judgement should be seen as endorsing any sort of blanket statement by me that the unauthorised or excessive use of force by a Police officer would automatically connote that that parent would perpetrate family violence in the home. Each case turns on its own facts.
Unlike Bennett J in Dupont, I have not had the opportunity to inspect any of the subpoenaed documents because the Commissioner has not produced them. In their absence I consider that it is presently “on the cards” that the documents sought by the ICL would potentially be of material assistance to the Court. Having regard to the facts alleged in paragraph 3 of these reasons, the narrowed scope of the ICL’s subpoena demonstrates a legitimate forensic purpose and is not otherwise oppressive, unreasonable or an abuse of the court’s process.
To be fair to the Commissioner, he argued this issue on the basis that the Court would have found for him on the question of statutory privilege, ie. that he was only obliged to produce the complaint documents. On that basis the Commissioner submitted that complaint documents on their own would not assist the Court - particularly if the complainant’s identities were redacted.
But even if I had found for the Commissioner on that issue, I struggle to think that he would succeed on the legitimate forensic purpose argument. To exempt the Commissioner from even producing the complaint documents goes above and beyond what even the Police Act envisages. The reality is that, in the witness box, the father would be obliged to answer relevant questions about workplace behaviour that might bear upon the issue of family violence. I do not see how this Court, charged with making a “best interests” order for a child, would be better informed by being deprived of all relevant documents rather than at least being given the complaint documents on their own. This Court should not be forced to “fly blind” if serious, potentially relevant workplace allegations are made against a parent. It is not an abuse of process or an illegitimate fishing expedition to seek the complaint documents. In my view there is still a legitimate forensic purpose to such a subpoena.
For these reasons, the objections to subpoena argues by the Commissioner must be dismissed.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 5 August 2021
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