Jordan & Callaghan & Ors

[2011] FamCA 1070

FAMILY COURT OF AUSTRALIA

JORDAN & CALLAGHAN AND ORS [2011] FamCA 1070

FAMILY LAW – CHILD ABUSE - Allegation

Family Law Act 1975 (Cth) Div 12, ss 69ZW, 69ZK

Department of Human Services & Brigham and Anor [2010] FamCA 937
Dunstan & Jarrod and Anor [2009] FamCA 480
Northern Territory of Australia & GPAO and Ors (1999) 196 CRL 553

APPLICANT: Ms Jordan

FIRST RESPONDENT: Mr Callaghan

SECOND RESPONDENT: Ms P

FIRST INTERVENER: Mr A

SECOND INTERVENER: Director-General, Department of Family and Community Services

FILE NUMBER: NCC 102 of 2010

DATE DELIVERED: 7 November 2011
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 7 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMahon

SOLICITOR FOR THE APPLICANT: Little & Associates

FIRST RESPONDENT: In person

SECOND RESPONDENT: In person

FIRST INTERVENER: In person

COUNSEL FOR SECOND INTERVENER: Mr Davies

SOLICITOR FOR SECOND INTERVENER: Crown Solicitor’s Office

THIRD INTERVENER: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sharon Moore

Orders

1. Pursuant to s 69ZW of the Family Law Act 1975 (Cth) the Director General of the Department of Family and Community Services (the Department) shall forthwith provide to the Court:

   (a)the notification made on or about 20 April 2011 to the Department of suspected abuse of either or both of the children C and T, or of suspected family violence effecting the children or either of them, including but not limited to the identity of the notifier on that occasion;

   (b)any assessments by the Department of investigations into the notification or the findings or outcomes of those investigations;

   (c)any reports commissioned by the Department in the course of investigating the notification.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC102 of 2010

Ms Jordan

Applicant

And

Mr Callaghan

First Respondent
And

Ms P

Second Respondent
And

Mr A

First Intervener
And

Director-General, Department of Family and Community Services

Second Intervener
And

Ms S

Third Intervener
And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is the tenth day of hearing in this matter before me.  All the evidence, other than that of one Departmental officer, has been given and tested.  There are seven parties, six of whom seek parental responsibility for the two children, boys aged eight and three.  The parties are: 

   a)Ms Jordan (the mother);

   b)Mr Callaghan (father of T);

   c)Mr and Ms P (paternal grandparents of the child T);

   d)Mr A (father of the child C);

   e)Department of Family and Community Services (Second Intervener);

   f)Ms S (paternal grandmother of C);  and

   g)Independent Children’s Lawyer

2. The Independent Children’s Lawyer says that, at this stage, either care in the community or a return to the care of Mr and Ms P is her present position before the Court. 

3. An issue arose during the course of the hearing on, I think, the eighth day, about information relating to a notification to the Department and its potential disclosure.  The information arose during the course of evidence and cross-examination of a Departmental officer.

4. I should say at this point that there are serious allegations and established facts about all parties.  On his own admission, Mr Callaghan, father of T, lied to the Department about his parents, to their detriment, and his ultimately, in 2005.  The mother, during the course of this hearing, took it upon herself to visit the family, who she had not previously known, of the two granddaughters of Mr and Ms P to tell them some part, but not the whole part, of the evidence, which led to certain orders being made about her future conduct. 

5. Ms S has been criticised in the proceedings in relation to supervision and her attitude to the level of risk which her son represents to her grandson.  Mr A has had supervised time provided by the Department since May 2011, but was supervised by way of an informal relationship between himself and Mr and Ms P since August 2011, when the children were taken into care.  When I say “informal” there was nothing in writing, but it was a Departmental request of Mr and Ms P. 

6. Mr and Ms P themselves, who were the carers of both boys between August 2010 and August 2011, have been accused of failing to adequately supervise both fathers and for failing to understand the implications of allowing their son, Mr Callaghan, to live in their home, he having been a past perpetrator of domestic violence. 

7. Ms Jordan has been accused of neglectful care through dependence on alcohol and failing to protect her children from domestic violence, which includes both fathers in these proceedings.

8. The Court has jurisdiction to deal with the matter, the Department having been given leave to intervene in the proceedings in 2010 in the Federal Magistrates Court. In Div 12 of the Family Law Act 1975 (Cth) is s 69ZK(2), a section which is operative by proclamation in New South Wales. This section states as follows:

   (2)      Nothing in this Act, and no decree under this Act, affects:

   (a)….

   (b)….

   (c)The operation of a child welfare law in relation to a child.

9. That section preserves the power of the State’s courts to make orders in relation to the same children.  It does not mean that s 29 of the Children and Young Person (Care and Protection) Act 1998 (NSW) operates to the exclusion of Federal legislation. 

10. In a decision in Dunstan & Jarrod and Anor [2009] FamCA 480, Murphy J, in a slightly different context of there having been an existing State order for a child when a future Federal order was sought, said this at par 55:

    The effect of section 69ZK(2) is, in my view, to preserve the capacity of the relevant state child welfare authorities to bring applications and/or take action under the relevant state legislation notwithstanding the making of an order by this Court. That is, orders of this Court, which the consent of the Department allows to be made, cannot be seen as excluding the capacity of the state welfare authorities to take action and/or the state courts to make orders under that state legislation.

11. With great respect, I agree with his Honour’s interpretation and summary of this section relating to jurisdiction. I do not consider that s 69ZK(2) means that the existence of State law restrains the operation of Federal law, in this case the production of documents disclosing the identity of a notifier. I am supported in this interpretation by s 69ZW(4) which says:

    A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.

12. That aspect is not controversial in this case.  That is to say, an order of this Court having been made, the existence of State law which would hinder or prevent compliance, has no effect on that order being complied with.  In this case arguably, the relevant State law allows for reports of harm to be produced in Family Court proceedings.  Further, the identity of the reporter may be disclosed in the absence of consent of the reporter with leave of the relevant Court.  It is almost word-for-word.

13. The proceedings before me are being dealt with pursuant to Div 12A of Pt VII of the Family Law Act. Div 12A of Part VII sets out the principles for conducting child related proceedings. These proceedings are wholly under this part, being applications for parenting orders.

14. In interpreting this division s 69ZN(4) states a principle that the Court is to actively direct, control and manage the conduct of the proceedings.  Section 69ZP says:

    The Court may exercise a power under this division on the Court’s own initiative or at the request of one or more of the parties.

    In this instance the Court has foreshadowed an order under this division on the Court’s own initiative, that is, an order under s 69ZW. I turn now to that section. Section 69ZW(1) says this:

    The Court may make an order in child-related proceedings requiring a prescribed State or Territory agency to provide the Court with the documents or information specified in the order.  The documents or information specified in the order must be documents recording, or information about one or more of these: 

    (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate, or of suspected family violence affecting the child; 

    (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations; 

    (c)any reports commissioned by the agency in the course of investigating a notification. 

15. The report in this case apparently relates to an allegation of a failure to supervise, probably by Mr and Ms P, perhaps involving Ms S, perhaps involving Mr A, but the full extent of it cannot be known by the Court at this time.  However, it is not simply the failure to supervise, or the lack of supervision which is the issue. 

16. Counsel for the mother raises the submission that this particular report does not fall within the definition, either of suspected abuse or suspected family violence.  In this matter all three parents have been supervised since at least August 2010, for reasons relating to a failure to protect the children from domestic violence or for reasons of being perpetrators of domestic violence to which the children have been exposed.  It seems to me that this situation falls squarely within the definition contained in the section.

17. Section 69ZW(3) has been the subject of submissions by the Department. It says this:

    Nothing in the order is to be taken to require the agency to provide the Court with:  

    (a)documents or information not in the possession or control of the agency, or

    (b)documents or information that include the identity of a person who made a notification. 

    The reference to “the order” is surely a reference to s 69ZW(1) and “the Agency” of course is the Department.

18. The submission is put that this subsection gives the agency, that is the Department of Family and Community Services, a discretion as to whether to produce documents at all which include details of notifiers.  I reject that submission.  The subsection carefully protects notifier’s details being given merely by an order for production of Departmental records being made.  Such an order is very regularly made in this Court, usually in response to a subpoena having issued for the records of the Department.

19. It is usual for Departmental records to be produced with the details, names and contact details, if there are any, blocked out or, as the Department refers to it, redacted, and in my view, ss 69ZW(3) provides the statutory authorisation to do that. However, subsection (3) does not simply obstruct the operation of ss69ZW(6). Rather subsection (3) is the preliminary protection, such that simply producing the documents does not mean that the Department has an obligation to disclose the details of the notifier.

20. There is a decision of Department of Human Services & Brigham and Anor [2010] FamCA 937, Cohen J, as he then was, delivered on 28 September 2009  This decision was in the context of a subpoena having been served on the Director-General of what was then the Department of Human Services.  For reasons which related to procedural fairness, the Director-General was not required to produce certain documents and objection had been taken to production.  The objection was that the documents would tend to identify the persons who had made a notification.  His Honour says this at par 8:

    Section 69ZW of the Act permits the Court to make an order in children’s proceedings requiring a prescribed state or territory agency to provide it with documents or information, but, because of section 69ZW(3)(b), an agency is not required to provide documents or information which identifies the person who made a notification.

21. So much is agreed.  However, the submission that production itself is simply a discretionary matter for the Department is not explicitly or implicitly stated in the Act.  Indeed, the very reason of this decision being delivered was that the Department had objected to production of the documents and had come to make its case.  His Honour ultimately found that the Department was not obliged to produce or disclose in the way that had been sought.

22. In par 13 of that judgment his Honour says this:

    Section 69ZW(3) exempts from such an order documents or information which include the identity of the person who made the notification. Section 69ZW(6) goes further. It prohibits the Court from disclosing the identity of the notifier unless that person consents to the disclosure or the Court is satisfied that both the identity is critically important to the proceedings and that the proper administration of justice will be prejudiced if there is no disclosure. These proceedings have not reached the stage where the Court could make a finding of this nature, and there is no suggestion that the reporter or reporters have consented to being identified.

23. There are two more passages in this judgment which have direct bearing on the proceedings to hand.  Paragraph 21 says this:

    A reading of section 69ZW(1), (2), (3) and (4), section 69ZK(2)(c) of the Act and section 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 interest 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 that can be tested.

24. With respect, I not only agree with his Honour’s analysis of the Federal and State legislation, but suggest that this captures the tension which was highlighted in submissions between competing objects, that is the very important necessity to offer such protection to notifiers that they feel confident to come forward without fear of retribution, balanced against the competing interests of a particular child or children in a particular proceeding where sufficient evidence is already known to provide a context for the information that is sought.  In my view, that is this case. 

25. His Honour goes on to speculate a little about the intention of the legislation which of course, is only five years old.  His Honour says this in par 27 in reflecting on the revised explanatory memorandum:

    …………

    It is likely that it is intended to permit the Court, with or without the request of a party to the proceedings for parenting orders, to demand, obtain and see specific documents from government departments such as those which are involved here as early in the conduct of proceedings as reasonably possible to be produced at a time which allows the Court to institute the steps which will best enable it to appreciate the likely validity of the allegations and best protect a child who might be affected if the allegations appear to be substantial.

26. His Honour then went on to reflect on the lack of procedural fairness which would be involved in making orders for disclosures and revelations without proper notice.  I do not consider that there is any inconsistency between the orders that are contemplated in this matter and the reasons given in that judgment for refusing them. 

27. Section 69ZW(5) of the Act says: “A court must admit documents or information on which it will rely.” That is, the Court must admit into evidence any documents or information provided in response to the order on which the Court intends to rely.

28. In these proceedings each party consented to the disclosure of his or her identity in the event that the reporter was that person.  On that basis, counsel for the Department was asked, over the objection of his client, whether the reporter was a party to the proceedings.  The answer to that question was “no.”  Subsequently, today, as invited, I have been advised that the known notifier does not consent to his or her identity being disclosed.  There has been notice, at least since last Thursday, that this issue was a live one and that in the event that the notifier did not consent to his or her identity being disclosed, it was likely that an order would be made. 

29. Section 69ZW(6) is the critical section. It says this:

    Despite subsection (5), the Court must not disclose the identity of the person who made a notification or information that could identify that person unless: 

    (a)the person consents to the disclosure, or

    (b)the Court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.

30. As I have said, there are allegations of serious misconduct in relation to all parties.  Doubts have been raised as to their motivations for being involved in these proceedings, motivations such as obtaining Centrelink benefits, revenge in relation to another party, or merely to assist another party rather than having a genuine first instance application.  All parents are alleged to have exposed the two children to domestic violence, either by their own violent conduct or by their oblivion when violent conduct was occurring in the home when the children were present.

31. There is a decision by Barry J, as he then was, delivered 18 January 2011.  In that matter his Honour was concerned in a setting of allegations being made of abuse of a child about the identity of the notifier.  His Honour says this at par 19:

    It is obvious from the reasons for judgment as appended that I have made scathing findings as to the credibility of the mother.  It was important for a trial judge to ascertain whether the allegations had come about from a source that was at arm’s length or, in other words, quite objective from the mother’s case.

32. In my view, that is the situation here, but duplicated, where the conduct, honesty, motivation and likely future behaviour of all parties is under consideration.

33. In submissions there was reference to the explanatory memorandum. The explanatory memorandum does offer some assistance. In par 15 it says this in relation to s 69ZW throughout this section:

    The intention is to ensure that, where allegations of violence or abuse are made, the Court has as much information as possible relevant to those allegations when making a determination about what is in the best interests of the child.

    In par 16, final sentence:

    If the agency does provide documents or information that include the identity of the person who made the notification, disclosure of those documents or information can only be made in the circumstances set out in subsection 69ZW(6).  Again, this is a protective mechanism, so that in the event that documents are produced in response to a subpoena, it does not necessarily follow at all that notifiers’ identities shall be disclosed. 

    Further in par 18, with reference to the decision in Northern Territory of Australia & GPAO and Ors (1999) 196 CRL 553, a decision of the High Court:

    In this case, the High Court found that the existing provisions of the Act did not override provisions in the Northern Territory child welfare legislation such that the Family Court of Australia could not compel the Northern Territory welfare authority to produce any documents it held concerning the protection of a child who was the subject of a parenting case. This decision has limited the evidence available to the Court to determine what is a child’s best interests in some cases. Section 69ZW will address this and extend to information about family violence.

    And in par 19 in relation to s 69ZW(5), the question of the document or information coming into evidence, the paragraph says this:

    This, subsection (5), ensures that where the Court intends to rely on information it has received relating to an allegation of abuse or violence, the parties are aware of the information or allegation and have an opportunity to respond.  This is in accordance with principles of natural justice.

1. On that basis section 69ZW(7) has been complied with in that the Court has an obligation to ensure that the agency (in this case the Department), provided the identifier of information is notified about the intended disclosure and is given an opportunity to respond. As I have stated, both those matters have been attended to during the course of these proceedings, but further than that, the Department, by being a party in these proceedings, and by having been involved in the lives of the children since mid 2010, are aware of the evidence and the allegations that the parties make against each other and various witnesses.

2. In this matter the Department was given leave to intervene in the proceedings in the Federal Magistrates Court on 25 June 2010.  At that time the mother had care of both children.  Soon after, she was ordered by the Federal Magistrates Court to accept supervision by the Minister. 

3. On 4 August 2010, all previous parenting orders were discharged and interim parental responsibility was allocated solely to the Minister.  The children were to live as directed by the Minister. 

4. On that day the Court noted the intervention of the Minister and as to the supervised time the children would spend with each of their parents, that is, both children once per week with their mother, each child once per week with his own father. 

5. On 6 August 2010 both children were placed with the paternal grandparents of the younger boy, Mr and Ms P.  At that time Mr Callaghan, his father, was living in the home, and he continued to do so for the following 12 months.

6. On 16 September 2010 there was a positive assessment of Mr and Ms P as being suitable long term carers for both children. 

7. From August 2010, when the children were first placed, the mother’s time with the boys was supervised by an external agency ‘Life Without Barriers’.  For the two fathers, Mr and Ms P were asked to supervise time between C and his father and between T and Mr and Ms P’s son, Mr Callaghan.  They were clearly trusted to do so.  In evidence they have each said that they did.  It is agreed and conceded that there was no written instruction or guideline in relation to what should happen in relation to supervision. 

8. Subsequently, there was an interview on 31 January 2011 between a Departmental officer and Mr and Ms P. 

9. On 7 February 2011 there was an interview with a Departmental officer, or more, with the father, Mr Callaghan. 

10. On 3 May 2011 there was a further interview by Departmental officers with Mr and Ms P and after that interview, external supervision was arranged between Mr A and his son. 

11. On 1 August 2011 both children were removed without notice and placed into care in the community.  The evidence to date, after 10 days, suggests that the reason for removal was a combination of factors: 

    (1) a credible report to the Department in or around 20 April 2011 by a notifier in relation to at least the issue of the possible failure of supervision of C; 

    (2) the recommendations of Dr L in his report of June 2011;  and

    (3) the consistent view of the relevant Departmental officer that it was inappropriate for the children to continue in a household where a parent who had been abusive continued to live. 

    The removal came about 10 weeks before this final hearing. 

12. I have now heard the evidence of all three parents, T’s paternal grandparents and C’s paternal grandmother and aunt.  All but the aunt are applicants for residence and/or substantial time with one or both of the children. 

13. I consider that in these circumstances the details of the report is critically important to the proceedings.  The credit of several key parties is under consideration.  The issue of supervision trust and whether C in particular, was put at risk are all central issues in final determination.

14. The Department itself seeks an order for parental responsibility, with an expressed intention to maintain the children in their current foster placement.  On the evidence of at least one Departmental officer, the April report has influenced the Department’s decision, both as to removal and as to future arrangements.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 November 2011.

Associate: 

Date:  10 November 2011