McConaghy and Brace

[2012] FamCA 1008

FAMILY COURT OF AUSTRALIA

MCCONAGHY & BRACE [2012] FamCA 1008

FAMILY LAW – PRACTICE AND PROCEDURE – subpoena – where the father has issued subpoena to the police seeking records in relation to the mother – where objection made on various grounds – where a subpoena was previously issued for the production of documents relating to the mother – where the previous subpoena has been complied with – where the Court was of the view that there was no basis upon which a fresh subpoena was required at this stage of the proceedings – objection upheld.

FAMILY LAW – PRACTICE AND PROCEDURE – subpoena – where the father has issued subpoena to the police seeking records in relation to a person – where there are allegations that the person sexually abused the children the subject of the proceedings – where there is objection on the grounds of public interest immunity – where the person is subject to serious criminal charges and criminal proceedings are pending – where it was held that the disclosure of documents may jeopardise the ongoing criminal proceedings – objection upheld.

Family Law Act 1975 (Cth)

APPLICANT: Mr McConaghy

RESPONDENT: Ms Brace

OTHER PARTY: Ms B

INDEPENDENT CHILDREN’S LAWYER: Nicola Atchison

INTERVENER Commissioner of Police of South Australia

FILE NUMBER: ADC 4196 of 2009

DATE DELIVERED: 27 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF:	Dawe J
HEARING DATE:	27 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kovacs

SOLICITOR FOR THE APPLICANT: Sarah Cleeland Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Eid

SOLICITOR FOR THE RESPONDENT: Wendy Botting

COUNSEL FOR THE OTHER PARTY: Mr Tredrea

SOLICITOR FOR THE OTHER PARTY: Condon Charles Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicola Atchison

COUNSEL FOR THE INTERVENER: Mr Walsh

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office

Orders

1. The Court upholds the objection to the subpoena both in relation to the evidence concerning Mr C and the mother in so far as the mother is concerned on the basis that a previous subpoena has issued and there is no basis upon which a fresh subpoena is required at this stage for any material that might assist this Court which would not be qualified by the concern about the prosecution of Mr C.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4196 of 2009

Mr McConaghy

Applicant

And

Ms Brace

Respondent

And

Ms B

Other Party

And

COMMISSIONER OF POLICE OF SOUTH AUSTRALIA

Intervener

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. Before me today is the objection to the subpoena which was issued on 13 November 2012 directed to the Commissioner for Police, Information Services Branch, South Australian Police, to produce documents. 

2. The documents referred to in the subpoena are set out on page 4, including a large amount of information given quite specifically in paragraphs 2(a) to (i), being documents relating to the persons thereafter named, being Mr C, Ms Brace, D, E, and F.  Mr C is not a party to these proceedings.  He is the person who is alleged to have committed sexual offences against two of the children who are the subject of these proceedings. 

3. Ms Brace is the mother in these proceedings.  The other people named are the children of the mother in these proceedings. 

4. The objection to subpoena is set out in the Notice of Objection filed on 26 November 2012, which sets out five grounds. In particular it is claimed that the material is so wide as to be oppressive and amounts to an abuse of process that it is too broad to serve any legitimate forensic purpose, and, further, that the relevance is not identified with sufficient particularity. Some of the documents are claimed to attract public interest immunity relating to the criminal proceedings involving Mr C which is the subject of an ongoing investigation, and some of the material may also attract the protection of sections 67D to F of the Evidence Act 1929 (SA).

5. The matters that have been argued before me today primarily relate to the width of the material, the relevance of the material and public interest immunity.  The matter of service of the subpoena upon Mr C was raised by other counsel and I stood the matter down to enable instructions to be taken.  Counsel now informs the Court that Mr  C, the person named in the subpoena and about whom the information is sought, has not been served with the subpoena.  Setting aside that matter (which would usually be a basis upon which an adjournment of the subpoena would be sought) I deal primarily with the significant issues, namely, the allegation that the subpoena itself is too wide and, therefore, oppressive. 

6. The current wording of the document was suggested to be reduced by restricting it to the material referred to in a letter limiting the scope of the subpoena to:

   (1)      criminal histories of Mr C and Ms Brace;

   (2)      domestic violence records involving the named persons;

   (3)      reports and records involving the named persons;  and

   (4)      statements and records of interview involving the named persons. 

7. During discussions in open Court this morning, there were further limitations suggested which related to the criminal history of Mr  C alone as the Court had previously issued a subpoena in relation to the mother with which the police had complied, which would cover most of the criminal histories of the mother. 

8. In relation to the criminal histories of Mr C, that would limit the information, but raises the question of public interest immunity. 

9. In relation to the domestic violence records involving the named persons, again, the mother’s domestic violence records were, presumably, covered by the previous subpoena.  This would relate only, then, to the domestic violence records of Mr C.  Reports and records involving the named persons and statements and records of interviews involving the named persons would similarly be covered.  My response, therefore, to the argument in relation to the width of the subpoena is that so far as the relevant records of the mother are concerned, those have been dealt with by the previous subpoena which was issued in 2011, and with which I understand the South Australian Police Department has complied. 

10. In relation to the records of Mr  C, whether they are criminal history records, domestic violence records, or reports, records and interviews, this raises the issue of the public interest immunity. 

11. I have no difficulty in determining that the material concerning Mr C, and, certainly, more recent material covering a period in which the mother was residing near Mr C and the children were coming into contact Mr C, would be relevant to the issues which the Family Court has to determine.  However, that raises the question of the public interest immunity and whether that outweighs the issues of disclosure of relevant evidence.

12. The question of a public interest immunity relates to a privilege which prevents the disclosure of relevant evidence on the grounds that such disclosure would be contrary to public interest.  The material currently before the Court, which is confirmed by counsel appearing for the Commissioner this morning, indicates that Mr C has been the subject of serious criminal charges which are yet to be dealt with.  I understand his committal is proceeding through the lower Courts in G Town. 

13. The matter, therefore, brings squarely into account the question of public interest which might arise if the disclosure of the documents would place at risk the ongoing prosecution of Mr C.

14. It is clear from the evidence that is before me that the children are alleged to have made statements, initially to the father in these proceedings.  He is, therefore, likely to be a witness in the criminal prosecution of Mr C.  The risk, therefore, is that Mr C’s trial may be prejudiced if the father in these proceedings, Mr McConaghy, comes to learn of material, albeit relevant to the proceedings in this Family Court, but likely to call into question the background to the evidence he will give in any criminal trial.  The balance, therefore, needs to be to determine whether in these proceedings the relevant evidence sought, or the relevant documents, sought by the father in these proceedings brings about a situation where the public interest immunity is weighed to the extent that the Court should override the risk that might be faced in the criminal proceedings.

15. The decisions of this Court and in other Courts make it clear that, notwithstanding the provisions of the Freedom of Information Act1982 (Cth) and the Evidence Act 1995 (Cth) requiring the disclosure of the material, it is important for this Court, as well as other Courts, to recognise the public interest immunity. I am satisfied on the material before me that the risk that might be faced if these documents were made available to all of the parties in these proceedings is such that the criminal proceedings against Mr C could be jeopardised. The Court should, therefore, reject the subpoena so far as it relates to information concerning Mr C’s past history and current prosecution matters.

16. The result of that may well be the Court might need to consider further adjourning a final decision in relation to these children until after Mr C’s proceedings have been concluded, or proceeding with the matter today on the evidence that is available and is admissible in this Court. 

17. I, therefore, uphold the objection to the subpoena, both in relation to the evidence concerning Mr C and the mother.  As far as the mother is concerned I do so on the basis that a previous subpoena has issued, and there is no basis upon which a fresh subpoena is required at this stage for any material that might assist the Court which would not be qualified by the concern about the prosecution of Mr C.  Therefore, the objection to the subpoena is upheld. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 27 November 2012.

Associate: 

Date:  4 December 2012