M and O
[2001] FMCAfam 107
•7 August 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
M & O [2001] FMCA fam 107
CHILDREN – Contact – application of paramountcy principle.
SUBPOENAS – Public interest immunity claimed in relation to production of documents relating to one party in a Witness Protection Program – public interest considerations in preserving confidential and determining matters relating to the welfare of children.
| Applicant: | M |
| Respondent: | O |
| Delivered on: | 7 August 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 16 July 2001 |
| Orders: | 16 July 2001 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Glaister |
| Solicitors for the Applicant: | Tyler Tipping & Woods |
| Counsel for the Respondent: | Mr McNab |
| Solicitors for the Respondent: | Hogg and Reid |
| Child Representative: | Ms Dwyer |
| Also appearing: Counsel on behalf of the Chief Commissioner of Victoria Police: | Mr Silbert |
ORDERS
BY CONSENT:
THAT the mother and father attend upon and make the children available to attend upon an expert nominated by the Children’s Representative for the preparation of a Family Report.
THAT the mother and the father each make application to Victoria Legal Aid for an extension of their current grants of legal assistance to each fund, one half of the costs of the preparation of the Family Report.
NOT BY CONSENT:
THAT until further order the children reside with the mother and that she be responsible for the day-to-day care, welfare and development of the children whilst they are in her care.
BY CONSENT:
THAT the mother make, file and serve any answering affidavit material on or before 4.00 pm on the 31st day of July 2001.
THAT the matter be listed for a final hearing for two days’ duration commencing the 11th day of October 2001.
THAT otherwise the question of the interim residence of the children be adjourned until the 20th day of August 2001 for hearing.
THAT until further order the father have contact with the children as follows:
b)each alternate weekend from Friday until Sunday commencing the 20th day of July 2001, the father to be responsible for the day-to-day care, welfare and development of the children whilst they are in his care; and
c)by telephone as agreed between the parties.
BY THE COURT:
It is further ordered that the subpoena to the Chief Commissioner of Police, Victoria Police, filed on the 12th day of July 2001 be set aside and the respondent father pay costs in relation thereto in default of agreement to be taxed.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
ZM …. of 2001
M
Applicant Mother
And
O
Respondent Father
REASONS FOR JUDGMENT
On the 12th day of July 2001 the respondent father caused to be filed in the Registry a subpoena to the Chief Commissioner of Police, Victoria Police.
That subpoena sought the production of documents only, to the Federal Magistrates Court, Melbourne on the 16th day of July 2001 at 9.45 am.
The matters required to be produced from the possession, custody or control of the Chief Commissioner of Police, Victoria Police were as follows:
i)All documents, books, photos, evidence and other items in the possession of the Chief Commissioner that relate to the person now known as the applicant mother; and
ii)All documents, books, photos, evidence and other items in the possession of the Chief Commissioner that relate to the person now known as the applicant mother and relate to her involvement in the Witness Protection Program.
On the return date of the subpoena, the father sought production of the documents as set out in paragraph 3 herein. Mr Silbert of counsel was granted leave to appear on behalf of the Chief Commissioner of Police, Victoria Police. Mr Silbert sought that the subpoena be set aside.
Mr Silbert indicated to the Court that all documents in the possession of his client as to any prior criminal history of the mother under the name of M and/or in relation to any former identity that may have been held by her have been produced to the father’s solicitors.
On behalf of his client, Mr Silbert claimed public interest immunity in relation to the production of documents. He referred the Court to the Witness Protection Act 1991 (Vic) and in particular s.10, ss.3 and 5. Production of the documents as sought by the father it was submitted could possibly compromise the safety of the mother and adversely affect the integrity of the Witness Protection Program.
The father sought production of documents saying same were crucial to the Court’s determination as to the interim placement of the children who may well be at risk whilst remaining in the mother’s care. On behalf of the father, argument was put that:
i)the degree of risk presented to the mother should be known;
ii)that the father did not know where the children would in future be located, nor if the Witness Protection Program would be able to facilitate contact; and
iii)that the Court had a duty to regard the best interests of the children as paramount, and that production of the documents was essential for the Court’s determination under s.65E of the Family Law Act 1975.
It was put by counsel on behalf of the Commissioner of Police, Victoria Police that an affidavit could be prepared detailing relevant matters sought, being an affidavit which remained confidential to the presiding judicial officer.
I am not inclined to adopt a course wherein an affidavit, confidential as to its contents, be relied upon by the Court. As an essential element of our judicial system, the parties affected by any determination which I may make, are entitled to know what it is by way of evidence that the Court is relying upon and furthermore and importantly, they are entitled to test that evidence.
Although the terms of the subpoena were criticised as being too wide, I am satisfied that the essential requirement that a document should be sufficiently described to enable the person subpoenaed to understand what to produce, has been met. It is clear that the documents the father requires production of relate to the mother’s participation in the Witness Protection Program and production of the criminal history sheet in the possession of the Chief Commissioner that relates to the person now known as the applicant mother.
This is not a case wherein the Commissioner is seeking to have any input as to the parenting orders made as between the parties to the proceedings. Indeed, it is not for the Commissioner to determine whether an order for parental responsibility or the welfare of a child should be made and if so, the nature of the order [see T v F & ors. (1999) Family Law Cases 92 855.] The parties have themselves agreed that the father shall currently have contact with the children and the father is aware of the current geographical location of the children and the school at which they attend. The father seeks production of information to ascertain whom it is that presents as a risk to the wife and thereby perhaps the children. The difficulty is the production of any such documentation may well place the wife and/or children at risk.
The Court has considerable information available to it presently. Details as to the children’s accommodation and schooling is before the Court and a regime of contact is operating. The mother’s criminal history in any name has been made available to the father. It is claimed on behalf of the Commissioner that to provide the father with the further information he seeks will place the mother and children at risk of physical harm and also potentially place at risk those administering the Witness Protection Program. The evaluation of those security issues is a matter for the Commissioner. How those security issues impact upon the children in these proceedings is a matter for this Court.
In Victoria the relevant legislation is the Witness Protection Act 1991. The purpose of that Act is to facilitate the security of persons who are, or have been, witnesses in criminal proceedings in Victoria or elsewhere in Australia. Legislation in the Commonwealth is as contained in the Witness Protection Act 1994.
The Victorian Witness Protection Program is maintained by the Chief Commissioner of Police pursuant to s.3A of the Victorian Act. The Chief Commissioner of Police may take such action as she thinks necessary and reasonable to protect the safety and welfare of a witness or a member of the family of a witness. For those participants in the program, the Chief Commissioner has entered into a Memorandum of Understanding with each such witness in accordance with s.5 of the Act. That Memorandum of Understanding, amongst other things, sets out the basis on which the witness is included in the program and details the protection and assistance to be provided. Preservation of the secrecy of this Memorandum is significant if a witness or family member is able under the program to establish a new identity by the making of a new entry in the Register of Births or Register of Marriages in respect of a participant or specified members of the family of the participant. One of the prerequisites is that the life or safety of the person, or of a member of his or her family, may be endangered as a result of the person being a witness.
Section 10 of the Act provides that a person must not without lawful authority disclose information in Victoria or elsewhere about the identity or location of a person who is or has been a participant, or that compromises the security of such a person – s.10(5). The Commissioner argues that this precludes her from release of the documents subpoenaed by the father. I accept this submission. [See Northern Territory of Australia v GPAO (1999) FLC 92 838 where the majority of the High Court held that Northern Territory legislation which protected the divulgence of information contained in welfare department files was not to be overridden by the paramountcy principles contained in s.65E of the Family Law Act 1975.]
In addition, there is the question of the public interest and the exclusion of evidence as contained in s.130 of the Evidence Act 1995.
What is required is a balancing of:
“The nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.”
Alister v The Queen (1983) 50 ALR 41, Gibbs CJ at 44/45.
It is a matter for the Court to balance the public interests referred to in s.130(1) of the Evidence Act. Nevertheless, substantial weight needs to be given to protect informers and keep Police sources of information confidential and it would usually be the case that the public interest in preserving such confidentiality will outweigh any countervailing public interest [R v Abdullah (1999) NSW CCA 188.]
In this case, the public interest in preserving the confidentiality of matters pertaining to the wife’s participation in the Witness Protection Program significantly outweighs the public interest in admitting into evidence any such matters. Although the Court’s task when determining matters relating to the welfare of the children, the subject of these proceedings, is made more difficult by not being in full possession of all relevant material, this nevertheless will not preclude the Court from determining the outcome of the proceedings.
As a result of the existence of the State legislation and public interest privilege, I find that production of the documents as subpoenaed by the father should not be made and that accordingly the subpoena should be set aside.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date:
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