Mullan and Mullan
[2006] FMCAfam 544
•10 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MULLAN & MULLAN | [2006] FMCAfam 544 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – public interest immunity – best interests of child - relevant forensic purpose. |
| Evidence Act 1995 (Cth), s.130 Children, Young Persons and Their Families Act 1997 (Tas) ss.14, 15, 16 Family Law Act 1975 (Cth) s.60CA |
| Sankey v Whitlam (1978) 142 CLR 1 Reynolds v Kilpatrick (1993) FLC 92-351 Re Z (1996) FLC 92-694 Benson v Hughes (1994) FLC 92-483 M and O [2001] FMCAfam 107 A & A and Ors [2005] FamCA 561 |
| Applicant: | MR MULLAN |
| Respondent: | MS MULLAN |
| File Number: | LNM 1094 of 2006 |
| Judgment of: | Roberts FM |
| Hearing date: | 6 & 18 October 2006 |
| Date of Last Submission: | 18 October 2006 |
| Delivered at: | Devonport |
| Delivered on: | 10 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Walker |
| Solicitors for the Applicant: | Verney Walker & Co |
| Counsel for the Respondent: | Mr P Sullivan |
| Solicitors for the Respondent: | Paul Sullivan Lawyer |
| Counsel for the Independent Child’s Lawyer: | Mr P Fitzgerald |
| Solicitors for the Independent Child’s Lawyer: | Legal Aid Commission of Tasmania |
| Counsel for the State of Tasmania: | Mr P Turner |
| Solicitors for the State of Tasmania: | Crown Law |
ORDERS
That the Subpoena issued 23 May 2006 requiring Ms J to produce documents is set aside.
That the documents forwarded to this Court under cover of a letter from Crown Law dated 4 October 2006 be returned to Crown Law.
IT IS NOTED that publication of this judgment under the pseudonym Mullan & Mullan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNM 1094 of 2006
| MR MULLAN |
Applicant
And
| MS MULLAN |
Respondent
REASONS FOR JUDGMENT
The issue that the Court has to decide is whether or not a subpoena to produce documents should be answered by an officer of the Tasmanian Education Department.
Background
MR MULLAN (“the Husband”) filed an Application on 6 February 2006 in which he seeks orders for the shared care of the four year old daughter of his marriage to MS MULLAN (“the Wife”). The Wife filed a Response on 27 February 2006 seeking an order that the Application be dismissed. In her supporting affidavit, she alleges that the Husband has physically abused her two sons. Those two boys (“the step-children”) are not the subject of these proceedings. They are the Wife’s children of a previous relationship and are not the Husband’s children.
On 16 May 2006 I made Orders for the Husband to have supervised contact with his daughter at a Contact Centre.
Late in May 2006 the Husband’s lawyer sought the issue of a subpoena directed to a particular employee of the Education Department (“the Education Department Officer”). That subpoena sought the production of “all records, files, attendance records and notes, guidance and social work records and notes and all other papers in relation to (the step-children) students of [S] Primary School and [S] High School”. In early June 2006 a legal officer within the Department of Education wrote to the Court stating, among other things, that the Department had “discovered some issues” and was obtaining legal advice as to whether the documents could be released.
I was subsequently informed that there would be an objection to the production of the documents and allocated time to hear the arguments in relation to that issue.
At the start of the hearing, counsel for the Wife sought leave to withdraw because he did not have any submissions to make. That leave was granted.
The Arguments
Mr Turner for the State of Tasmania (the employer of the Education Department Officer) argued that the documents sought by the subpoena should not be produced because they attract public interest immunity. It was his argument that the public interest in maintaining the confidentiality of the documents outweighs the public interest in producing the documents to this Court.
Mr. Turner also drew my attention to sections 14, 15 and 16 of the Children, Young Persons and Their Families Act 1997 (Tas). In essence, those sections provide that:
·certain people (including most employees of the Education Department) must report to the Tasmanian child protection authorities any knowledge, reasonable belief or suspicion of child abuse;
·a notifier will not incur civil or criminal liability if he or she has acted in good faith;
·evidence of a notifier’s identity “must not be adduced in proceedings before any court without leave of that court”; and
·such leave cannot be granted unless the court is satisfied that the evidence is of critical importance in the proceedings or the notifier consents.
Mr Turner submitted that, because teachers and school guidance officers are mandated by the Children, Young Persons and Their Families Act to report abuse or suspected abuse, they “should not be exposed to having their notes trawled over”.
The position adopted by Mr. Turner was opposed by counsel appearing for the Husband and the Independent Child’s Lawyer. Suffice it to say that they sought to persuade me that neither public interest immunity nor the provisions of the Children, Young Persons and Their Families Act have any application in this matter.
Discussion
In Sankey v Whitlam (1978) 142 CLR 1, Gibbs ACJ said the following at pages 38 and 39:
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer (1968) AC, at p 940 , as follows:
“There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v. Rimmer (1968) AC, at p 940 , “the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it”. In such cases once the court has decided that “to order production of the document in evidence would put the interest of the state in jeopardy”, it must decline to order production. (at p39)
That common law position is now to be found in section 130 of the Evidence Act 1995 (Cth). Subsection (1) states:
If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
Subsection (4) reads:
Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:
(a) prejudice the security, defence or international relations of Australia; or
(b) damage relations between the Commonwealth and a State or between 2 or more States; or
(c) prejudice the prevention, investigation or prosecution of an offence; or
(d) prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or a State.
It is clear that the court must weigh the competing public interests of:
·maintaining confidentiality of certain records; and
·the need to have all relevant material before the court.
In order to assist me to weigh those competing public interests,
Mr Turner arranged for me to be provided with the documents that are covered by the subpoena. Those documents were:
·a bundle of notes from school pastoral care meetings; and
·a school file for each of the step-children.
In my view, some of the documents provided by Mr Turner can be dealt with without any reference to the principle of public interest immunity.
I am of the opinion that the confidentiality of the notes from the pastoral care meetings should be maintained. That is because those notes refer not only to the two step-children, but also to numerous other children at the school who have absolutely nothing to do with these proceedings. While the interests of those other children could be protected by blotting out their name, I can see no reason for that to happen. That is because those pastoral care notes simply repeat or summarise other material in relation to the step-children that is to be found in the school file of each child.
Those school files each contain a copy of a document entitled “Personalised Safety Plan”. That document clearly relates to the Wife rather than to the step-children. In my view, it is therefore outside the scope of the subpoena, and should not be produced.
Section 60CA of the Family Law Act 1975 (Cth) provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In Reynolds v Kilpatrick (1993) FLC 92-351, at 79,705 her Honour Finn J said:
... a jurisdiction that has as its paramount consideration the welfare of children (as does the jurisdiction conferred by Part 7 of the Family Law Act) carries with it the jurisdiction to ensure that the rules of procedure and evidence applied within the jurisdiction serve the paramount purpose of the jurisdiction. Thus the law conferring the jurisdiction, being the Family Law Act of the Commonwealth, can be said to constitute a Commonwealth law which will override, pursuant to s 79 of the Judiciary Act, State or Territory rules of procedure on evidence, where this is necessary in the pursuit of the paramount purpose of the jurisdiction conferred by Part 7 of the Family Law Act.
Accordingly, if a court exercising jurisdiction under Part 7 was to conclude that there existed evidence which, apart from the operation of a State or Territory Statute, would be available to it and which would better assist it to reach a decision that would “best promote and protect the interests of a child” the court would be entitled to order that such evidence be made available to it.
That passage was quoted with approval and adopted by their Honours Nicholson CJ and Frederico J in Re Z (1996) FLC 92-694.
In Benson v Hughes (1994) FLC 92-483 Chisholm J summarised the facts of Reynolds v Kilpatrick succinctly as follows:
In Reynolds v. Kilpatrick ……, Finn J also engaged in a balancing exercise. On one side was the possible benefit to the child of arranging for files of the Director of Family Services for the ACT to be made available to the court. On the other side was the public policy interest in maintaining confidentiality of these materials. Her Honour's decision involved weighing up of these policies and resulted in admission of some material and the exclusion of other material. Those documents which were of great value to the court were admitted and other documents, of lesser value, were not admitted.
It is my general view that children’s records kept by schools would not normally attract public interest immunity in relation to proceedings under the Family Law Act. That is because:
·the court needs to consider the best interests of the child as its paramount consideration and that would normally override the usual privacy and confidentiality of school records;
·school records are not normally of such a sensitive nature that they would come within the categories of matters envisaged by subsection 130(4) of the Evidence Act 1995.
However, it is clear that each case must be decided upon its own facts and the competing public interests must be considered.
I was referred to the decision in M and O [2001] FMCAfam 107 as an example of the application of public interest immunity. In that case a father sought information about the location of the mother who was in a Witness Protection Program. However, I am of the view that records normally kept by a school in relation to its students do not fall into the same category.
As mentioned above, I am of the opinion that records kept by schools will not normally attract public interest immunity. In this particular case, I am of the view that the requirement for the court to consider a child’s best interests as paramount outweighs the need to keep the particular school records confidential.
However, in considering this matter generally, I formed a tentative view that there could be other reasons why the remaining documents should not be produced for inspection, in any event. Because that tentative view was formed without giving counsel the opportunity to address me, I arranged for a further mention of the matter on
18 October 2006. At that time, I expressed my tentative views and heard further submissions. I also gave counsel the opportunity to provide further written submissions on the basis that if no written submissions were received by close of business on 1 November 2006, I would proceed to publish my reasons in relation to this matter. No written submissions have been received.
It is clear that the issue of any subpoena must serve a relevant forensic purpose. As Guest J said in A & A and Ors [2005] FamCA 561
Any pious expectation or hope of landing a document that may be of relevance to the actual proceedings before the Court is nothing short of fishing.
In this matter the Husband’s lawyer and the Independent Child’s Lawyer have each requested the issue of a number of subpoenas. The request for the issue of a subpoena to the Education Department appears to have been considered necessary primarily because the Mother had made specific reference to documents maintained by the [S] school in relation to alleged abuse of the step-children. In this regard, I refer to paragraph 34 of her affidavit filed 27 February 2006.
Earlier in May the Independent Child’s Lawyer had requested the issue of a subpoena to the Department of Health and Human Services. As a consequence, the Tasmanian “Child Protection” files in relation to the step-children were produced and on 11 September 2006 I permitted inspection of those files by the legal representatives. Those files have been “sanitised” by the removal of any reference to notifiers in order to comply with the provisions of the Children, Young Persons and Their Families Act.
Having now looked at both the child protection and the school files, it is my view that the documents produced pursuant to the subpoena to the Department of Health and Human Services will serve the Husband’s purpose in relation to any alleged child abuse sufficiently to make production of the school documents unnecessary. If there was another forensic purpose to be served by the subpoena to the Education Department, then it is my view that the terms of that subpoena were too wide for that purpose to be easily understood. The wideness of the terms of that subpoena is somewhat suggestive of the “fishing” referred to by Guest J at paragraph 27 above.
In view of what I have set out in these Reasons, I propose to set aside the subpoena issued to Ms J on 23 May 2006 and require my Associate to return all the documents forwarded to the court by Mr. Turner.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
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