McManus & Bracken
[2021] FedCFamC2F 206
•5 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McManus & Bracken [2021] FedCFamC2F 206
File number: MLC 11271 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 October 2021 Catchwords: FAMILY LAW – interim – whether family report should be provided to the magistrates court for the family violence proceedings – where father seeks family report to be provided to the magistrates court – where mother opposes but then seeks the family report being provided – orders made. Legislation: Family Law Act 1975 (Cth), ss 60CC, 68R, 121 Cases cited: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Division: Division 2 Family Law Number of paragraphs: 22 Date of hearing: 5 October 2021 Place: Melbourne The Applicant: Appeared In Person Counsel for the Respondent: Ms E Johnson Solicitor for the Respondent: Fitzroy Legal Service Incorporated ORDERS
MLC 11271 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MCMANUS
Applicant
AND: MS BRACKEN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Father and the Mother are permitted, subject to any order, ruling or direction of the Magistrates' Court, to make such use of the Family Report prepared by Mr B on 12 May 2021 for the purpose of these proceedings ("the Family Report") in the family violence and/or intervention order proceedings between the parties, as is just.
2.The ex tempore reasons and the order this day, if relevant, may be provided to the Magistrates' Court subject to any order, ruling or direction of that Court as to the admissibility or relevance of those document and the Family Report.
3.Each of the parties be and are restrained from sharing the contents of the Family Report with any observer to, or member of the public present at, the Magistrate Court proceedings and do all acts and things necessary to maintain the confidentiality of the Family Report.
AND THE COURT NOTES THAT:
A.The matter is otherwise listed for Final Hearing on 3 February 2022 (for an estimated 2 days).
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym McManus & Bracken has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
In this matter, I am required to determine whether the applicant father, Mr McManus (‘the Father’) can use the family report prepared in these proceedings concerning the welfare of the children in Magistrates Court family violence proceedings. The family report prepared pursuant to an order of this court is regarded as a confidential document and not only confidential, highly confidential. The respondent mother is Ms Bracken (‘the Mother’).
The usual practice is that the parties are not at liberty to share that document with anyone outside the proceedings. That is, not with friends, neighbours, well-wishers, blokes down at the footy club, ladies at the tennis club or anywhere else. I am told and accept that there are crimes family violence proceedings where the Mother seeks that the Father be dealt with for breach of an undertaking that had resolved family violence proceedings.
The Father had asked the Mother via her solicitors for consent to use the report and that was refused, hence, the filing of the current application. The Father filed an application in a case, and has filed three affidavits in support. One of those affidavits was unfortunately only filed this day. That affidavit merely annexed what are the “further and better” particulars filed by the Mother in the crimes family violence proceedings.
Counsel for the Mother had not been briefed with that document and objected to reliance upon the late filed document. Upon my reading it to ascertain whether it may be relevant, and inquiring of her, it became apparent that she was not aware of the contents. I stood the matter down to permit her to peruse the contents of that document.
The Mother had filed a response opposing the Father's relief of seeking to use the report in the family violence proceedings, and an affidavit in support.
The most significant document is in fact the further and better particulars that the Mother has filed in the Magistrates Court. The Mother's opposition to the Father relying on the family report in proceedings other than which the family report was prepared is entirely in accordance with the traditional practices of the family law courts and entirely consistent with the practice of strict confidentiality.
I had raised with the Mother's counsel the issue of section 68R of the Family Law Act 1975 (Cth) (‘the Act’):
Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act
Power
(1)In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:
(a)a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or
(b)a recovery order (as defined in section 67Q) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or
(c)an injunction granted under section 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or
(d)to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child:
(i)an undertaking given to, and accepted by, a court exercising jurisdiction under this Act; or
(ii)a registered parenting plan within the meaning of subsection 63C(6); or
(iii) a recognisance entered into under an order under this Act.
(2) The court may do so:
(a) on its own initiative; or
(b) on application by any person.
Limits on power
(3) The court must not do so unless:
(a)it also makes or varies a family violence order in the proceedings (whether or not by interim order); and
(b)if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or (c)--the court has before it material that was not before the court that made that order or injunction.
(4)The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.
Relevant considerations
(5) In exercising its power under subsection (1), the court must:
(a)have regard to the purposes of this Division (stated in section 68N); and
(b)have regard to whether spending time with both parents is in the best interests of the child concerned; and
(c)if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order--be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.
Note:Sections 60CB to 60CG deal with how a court determines a child's best interests.
Registration of revival, variation, discharge or suspension of orders and other arrangements
(6)The regulations may require a copy of the court's decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court's decision.
What is immediately apparent is that upon the hearing of a crimes family violence application, the Magistrates Court is empowered to vary or suspend any order of this court relating to the time with the children.
I raised with the counsel for the Mother that the question was whether it was ironic that that court was entrusted with a matter as serious as dealing with family violence, and with the power to revive, vary, discharge or suspend this court's order relating to the welfare of children, but would not be permitted to refer to independent evidence or evidence prepared by an independent expert in this court that would touch on and inform that very same question.
In the context of considering that issue, the matter was stood down for the Mother's counsel to consider the further and better particulars of her client which had been filed in this court by the Father as a shield to the Mother's position that he should not be permitted to use the report. A reading of the further and better particulars is striking in that those further and better particulars complain of behaviour that overlaps with the Father's conduct in these proceedings, including his conduct in regard to speaking to the children in the context of the family report interviews.
Further to that, the further and better particulars actually quotes from, word for word, parts of the family report. When the matter returned to court, counsel for the Mother told me that with the benefit of her counsel’s consideration of that document, the Mother's position had now changed, and it could be recorded as not opposed. And further, her counsel then sought that the Mother also should have permission to use and rely on the family report in the Magistrates Court.
These reasons and my order permitting both parties to rely on the document should not be taken or regarded as in any way limiting or dealing with how the relevant Magistrate can, if that court sees fit, deal with the contents of the family report. I note that it was entirely proper for the Father to seek this court's permission before himself using that family report. I note that the Mother had not done so before quoting the report in the further and better particulars. She should have. My order will cure that defect.
I have not been addressed today on whether the parties are bound by what is known as the Harman obligation. In Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, the High Court said at [96]:
[96]Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…
The Harman obligation stands for the unsurprisingly and common sense proposition that where a party has come into information as a result of compulsion on any person, including any other parties to a proceeding, or any party subject to a subpoena or an obligation of discovery, that information or document can only be used in the proceedings in which it was sought.
Hence it was proper for the Father to seek the court's permission, and it is proper for the Mother to also seek the court's permission. In the circumstances where the issues in these proceedings and the family report and the family violence proceedings overlap, it is proper, in my view, to permit that use. In my view, the fact that the family report has already been quoted in further and better particulars, further reinforces that circumstance.
Further, the circumstance that section 68R of the Act provides the court, that is, the Magistrates Court, in family violence proceedings, to revive, vary, discharge or suspend an order of this court dealing with the parties' time with the children also makes it proper that that court would not have access to or be prevented from referring to relevant information that would touch on that issue of whether such an order would be appropriate in the best interests of the relevant children.
Nothing in these reasons or orders that I make should be seen as in any way commenting on or affirming whether or not any of the further and better particulars are actually family violence or whether any of the behaviour alleged of the Father is family violence, or whether the family report is in fact admissible or relevant in the ultimate decision of the relevant Magistrates Court.
I will also make an order that these reasons and my order may be provided to the Magistrates Court but subject to any finding or ruling of that court as to admissibility, relevance or any other aspect as to the use of the family report, these reasons and the order permitting the family report to be relied on.
My orders will also include an order that each of the parties be and are restrained from sharing the contents of the family report with any observer in the Magistrates Court proceedings. That, of course, does not prevent them providing such documents to their legal advisers in those proceedings. Section 121 of the Act continues to apply.
Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2)A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3)Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii)the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi)the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii)any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b)in the case of a written or televised account or an account by other electronic means--it is accompanied by a picture of the person; or
(c)in the case of a broadcast or televised account or an account by other electronic means--it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4)A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983 .
(5) An offence against this section is an indictable offence.
(8)Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(9) The preceding provisions of this section do not apply to or in relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(aa)the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b)the communication of any pleading, transcript of evidence or other document to:
(i)a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii)persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c)the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da)the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e)the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia)to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii)to a person who is a student, in connection with the studies of that person; or
(g)publication of accounts of proceedings, where those accounts have been approved by the court.
(10)Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
Note:Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123.
(11) In this section:
"court" includes:
(a)an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b)a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
"electronic means" includes:
(a)in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b)in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
The long and the short of it is that save as directed by the relevant magistrate, the confidentiality of that report is to be maintained, as that is in the children's interests.
I further note that one of the matters that I must consider in considering the children's welfare pursuant to section 60CC(3) of the Act is:
(j) any family violence involving the child or a member of the child's family; and;
(k)if a family violence order applies, or has applied to the child or a member of the child's family - any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I note that the matter is otherwise listed for a final hearing on property and children's welfare matters before me on 3 February 2022.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 October 2021
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