Nevins & Urwin

[2021] FedCFamC1F 342

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nevins & Urwin [2021] FedCFamC1F 342

File number(s):	BRC 5254 of 2018
Judgment of:	HOGAN J
Date of judgment:	9 December 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter is currently part-heard – Where the father was charged with a number of offences – Request by the Office of the Director of Public Prosecutions (New South Wales) to inspect the Court record.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 15.13
Cases cited:	Carter & Carter (2018) FLC 93828; [2018] FamCAFC 45 Oates & Qand Anor (2010) FLC 93-451; [2010] FamCAFC 202 Tudway & Tudway and Anor [2015] FamCA 933
Division:	Division 1 First Instance
Number of paragraphs:	22
Date of hearing:	9 December 2021
Place:	Brisbane (by video link)
Solicitor for the Applicant:	Office of the Director of Public Prosecutions NSW
Solicitor for the First Respondent:	Hofstee Lawyers
Solicitor for the Second Respondent:	Amanda Fawaz Solicitor
Solicitor for the Independent Children's Lawyer:	Legal Aid Queensland

ORDERS

BRC 5254 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS NSW

Applicant

AND:

MS NEVINS

First Respondent

MR URWIN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	9 DECEMBER 2021

IT IS ORDERED THAT:

1.The applicant shall have leave to inspect and copy the affidavits filed by each of the parents in these proceedings and the Notices of Risk filed by each of them.

2.Prior to the affidavits and Notices of Risk being made available for inspection and copying by the applicant, the residential address of the first respondent mother shall be redacted from the affidavits and the Notices of Risk.

3.The applicant, by his servants, agents, employees or counsel engaged to appear on his behalf, shall not use any document obtained as a consequence of this order other than for or in relation to the prosecution of the second respondent father in the proceedings currently being heard by the District Court of New South Wales.

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 the pseudonym Nevins & Urwin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

HOGAN J:

1. The proceedings in which I am currently part heard proceeded to trial in August 2019. After the evidence closed and before submissions were taken, the father was arrested and subsequently charged with a number of offences. He is currently engaged in a criminal trial in relation to those charges, with that trial taking place in the District Court of New South Wales at G Town, (having commenced in November 2021): it is, on the evidence before me, ongoing and likely to continue into the week commencing 13 December 2021.

2. By Application filed yesterday, 8 December 2021, the Office of the Director of Public Prosecutions (New South Wales) seeks permission of the Court to search this Court’s record relating to the proceedings between the parents and to inspect (at least by inference) and also to copy certain documents forming part of the Court record. The Application has been narrowed, in a sense, to specify that permission to inspect and copy is restricted to the affidavits filed by the parties, or in their cases, in these proceedings and also the two Notices of Risk:  one filed by each of the parents in the proceedings.

3. So it is to only those documents forming an aspect of the Court record that the current Application relates.

4. Rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) governs applications such as this.

5. Before addressing those issues it is, I think, relevant to record that the current Application was made following attempts which began in mid-November 2021 to obtain access to the Court documents in anticipation of a trial set to commence in November 2021, which attempts culminated in the Office of the Director of Public Prosecutions being told:

   (a)at 9.10 am on 17 November 2021: that a formal Application in a Proceeding was required to be filed and served on parties to these proceedings; and

   (b)at 10.40 am on 17 November 2021: that, if an Application in a Proceeding with supporting affidavit was filed that day, I would hear it urgently in order to facilitate the anticipated commencement of the criminal proceedings in the District Court of New South Wales.

6. In addition, information was conveyed by the Legal Case Manager to the Judicial Registrar who had previously addressed an administrative request for the provision of documents advising that, in order to facilitate an anticipated filing of an Application in a Proceeding, an email address to which that document and any supporting affidavit could be sent to ensure that they would be filed with this Court as expeditiously as possible and heard, was provided.

7. Following an appearance earlier this week, the current Application was filed.

8. The Rule to which I have referred, namely, r 15.13 provides relevantly that:

   (a)with the permission of the Court, a person with a proper interest in information obtainable from the Court record in the proceeding may search the Court record and inspect and copy a document forming part of it: see r 15.13(1)(d)(ii); and

   (b)the parts of the Court record that may be searched, inspected and copied, are Court documents and, with permission of the Court, any other part of the Court record: see r 15.13(3)(a) and (b); and

   (c)the term “court document” is defined in r 15.13(6) to include a document filed in the proceeding, but does not include correspondence or a transcript forming part of the Court record; and

   (d)in considering whether to give an applicant, such as the Office of the Director of Public Prosecutions, permission under the Rules, the Court must: consider the purpose for which access is sought and whether the access sought is reasonable for that purpose; have regard to the security of Court personnel, parties, children and witnesses; have regard to any limitations or conditions that should be imposed on access to, or use, of the Court record.

9. The Office of the Director of Public Prosecutions relies on an affidavit filed by Ms J, such affidavit having been filed on 8 December 2021. By way of very broad overview, the father in the proceedings in which I am part heard is the accused in the criminal proceedings currently on foot in the District Court of New South Wales. The mother to the proceedings before me is, I think, is a witness in the proceedings prosecuted by the Director.  It is said, in Ms J’s affidavit, that the evidence given by the parents in the proceedings in this Court would constitute prior statements and, I infer, may be relevant depending, of course, on the evidence given in the criminal proceedings. I accept the evidence of Ms J and also the submissions of Mr Campbell to the effect that the Director has an ongoing duty of disclosure to the accused (in this case, the father in these proceedings) and that it is, in essence, for that purpose that the Application is brought. I also accept Ms J’s evidence as to the extent and ongoing nature of the duty of disclosure.

10. Given those matters, I am satisfied that the Director is a person with a proper interest in the information obtainable from the Court record in the proceedings.

11. I also note that there is no objection by or on behalf of the mother to the Director being granted permission, subject to a condition that any information that would particularise her residential address be redacted from any documents made available. I note that the father did not wish to be heard in relation to the Application and that the Independent Children’s Lawyer did not oppose the same and provided helpful submissions with reference to various authorities.

12. There have been, in addition to those authorities to which the Independent Children’s Lawyer made reference, a number of decisions of the Full Court of this Court in relation to applications to search a Court record and obtain copies of documents made by non-parties to proceedings in this Court. Those authorities address r 24.13 of the Family Law Rules 2004 (Cth), which Rules are now repealed. However, the terms of r 24.13 are replicated by r 15.13 of the current Rules. Given this, those decisions of the Full Court of this Court are clearly apposite to my consideration of the current Application.

13. In Oates & Qand Anor[1] the Full Court considered a situation in which a non-party sought access to the file for the purpose of defending herself against a complaint made to the Office of the Legal Services Commission by the wife in those proceedings. At first instance, leave was granted. The wife appealed from that order. The Full Court relevantly noted in essence, at [83]:

    … If the court determines that a person has the requisite proper interest, it is within the discretion of the court to grant access to the entire court record/file.

    [1] (2010) FLC 93-451.

14. Further at [99], the Full Court said that:

    Rule 24.13 requires only that the person have a proper interest in the case or information obtainable from the court record. No other limitation is placed upon the circumstances in which the Court may grant a person access to the court record.

15. In Carter & Carter[2] the Full Court considered an appeal against an order by a judge at first instance, dismissing – other than in relation to the consent orders made between parties – an application by a child of those parents to search, or have access to, the Court record in relation to the issues of his parents’ divorce and the property and parenting orders made between them. In that case, the child’s parents, who were the parties to the proceedings, consented to him being granted permission to inspect the Court record.

    [2] (2018) FLC 93-828.

16. It is apparent from the reasons of the Full Court that the judge at first instance summarised the purpose of inspection and access to have been: to enable the applicant to know what happened; to assist an understanding of what happened in relation to his family and relationships after the parental separation; to enable the applicant to know which of his parents was, by virtue of order and proceedings, supposed to do what; to enable him to ascertain answers to questions such as why he had not been provided with independent legal representation; to enable him (having received treatment as an adult for mental illness) the benefit of being able to access the information thought to have been held on the Court file.

17. It appears from reasons of the Full Court that, despite having found that the applicant had a proper interest in the proceedings, the trial judge refused him access to the Court record because of concerns which included: reservations about the benefit he might have obtained from inspecting the file; concerns about the impact on him and his mental health of permitting access to the file; and, in essence, concerns that it was unlikely that having access to and inspecting the file would give him the answers that he sought.

18. The Full Court allowed the appeal. In doing so, the Reasons included that: the Rule provides the criteria by which an application is to be considered and does not entitle the decision to be based on matters not relevant to its terms; the applicant’s stated purpose was prima facie reasonable; the trial judge erred by having regard to irrelevant matters; the correct application of the Rule should have been that, once proper interest was established, the Court should have considered whether access to the record was reasonable – and not whether an applicant would benefit from such access.[3]

    [3] See the joint Reasons of Ainslie-Wallace and Aldridge JJ at [39].

19. The Court held further that a primary judge is required to identify the purpose or purposes for which access to the Court record is requested and, having done so, to determine whether access to the same is reasonable for that purpose or purposes,[4] and that a focus on an absence of benefit, flowing from access to the Court record, is an irrelevant consideration in the exercise of discretion.[5]

    [4] See the Reasons of Murphy J at [68].

    [5] See, again, the Reasons of Murphy J at [71].

20. Whilst I do not intend to refer further to it, I also note that, in Tudway & Tudway and Anor,[6] Stevenson J permitted access to the Court record in the circumstances of that case; albeit that they did not involve an applicant in the same position as the Applicant in the current proceedings before me.

    [6] (2015) FamCA 933.

21. Having regard to the binding principles, the Rule and the matters to which I must have regard, I am satisfied in the present case that the Director is a person with a proper interest in the information obtainable from the Court record and that the purpose for which access is sought (and which includes compliance with the duty of disclosure, to ascertain the content of the statements and evidence given by parties to these proceedings and witnesses called in their respective cases, insofar as the same may be relevant to the criminal proceedings, and to permit the Director to comply with the ongoing obligation of disclosure to the father, being the accused in the criminal proceedings) to aspects of the Court file comprising the affidavits filed in each party’s case and the Notices of Risk filed by each of the parents is reasonable for that purpose; there is nothing in the evidence before me to suggest any need for security of Court personnel, parties, children or witnesses that cannot otherwise be addressed by the making of an order that ensures that the affidavit material provided for inspection and copying does not contain the residential address of the mother and that the same is redacted from those documents prior to their provision for inspection and copying.

22. Further, having heard from Mr Campbell in relation to an order that I proposed, I consider it is also proper and appropriate in the circumstances of this case and having regard to the power prescribed by r 15.13(5)(d) that I impose a condition on the granting of permission to access and copy the affidavits and Notices of Risk and that the same be in terms that provide that the Director, by his servants, agents, employees and those engaged to conduct prosecutions on his behalf, shall not use any document obtained as a consequence of permission to search, inspect and copy the Court record for any purpose other than the current criminal proceedings against Mr Urwin, the father in these proceedings.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Hogan.

Associate: 

Dated:       23 December 2021