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:

The proceedings in which I am…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nevins & Urwin

Details

AGLC: Nevins & Urwin [2021] FedCFamC1F 342
Case: [2021] FedCFamC1F 342
Decision Date

CaseChat Overview and Summary

In the case of Nevins and Urwin, the Office of the Director of Public Prosecutions (New South Wales) sought leave to inspect and copy certain documents from the Court record in family law proceedings involving the parents, Ms Nevins and Mr Urwin. The application was made in the context of Mr Urwin's ongoing criminal trial in the District Court of New South Wales, where he was charged with a number of offences. The Office of the Director of Public Prosecutions argued that access to the Court record was necessary for compliance with their duty of disclosure to the accused and to ascertain the content of the statements and evidence given by the parties and witnesses in the family law proceedings, insofar as the same may be relevant to the criminal proceedings. The Court considered the application under Rule 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which governs applications for access to Court records by persons with a proper interest. The Court noted that the Office of the Director of Public Prosecutions had a proper interest in the information obtainable from the Court record, and the purpose for which access was sought was reasonable. The Court also considered the security of Court personnel, parties, children, and witnesses, as well as any limitations or conditions that should be imposed on access to, or use, of the Court record. The Court was satisfied that there was no objection by or on behalf of Ms Nevins 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. The Court further considered the binding principles established in previous cases and found that the Director's purpose for seeking access was reasonable, and there was no need for security concerns that could not be addressed by the proposed conditions. The Court granted the application, subject to the condition that the Office of the Director of Public Prosecutions shall not use any document obtained as a consequence of this order other than for or in relation to the prosecution of Mr Urwin in the current criminal proceedings.

The Court's decision in Nevins and Urwin highlights the importance of balancing the interests of the parties involved in family law proceedings with the need for access to information in related criminal proceedings. The Court carefully considered the relevant legislation, binding principles, and the specific circumstances of the case to ensure that the Office of the Director of Public Prosecutions' access to the Court record was granted in a manner that protected the security of Court personnel, parties, children, and witnesses, while also enabling the Director to fulfil their duty of disclosure to the accused.

Orders