Prout and Daniell

[2019] FamCA 836

FAMILY COURT OF AUSTRALIA

PROUT & DANIELL [2019] FamCA 836

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to produce information that identifies notifer

Child Protection Act 1999 (Qld)
Family Law Act 1975 (Cth)

APPLICANT: Mr Prout

RESPONDENT: Ms Daniell

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 1344 of 2017

DATE DELIVERED: 29 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 28, 29, 30 and 31 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITOR FOR THE APPLICANT: Briese Lawyers

COUNSEL FOR THE RESPONDENT: Ms Cahill

SOLICITOR FOR THE RESPONDENT: Pearl Beaumont

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The Department of Child Safety, Youth and Women is granted leave pursuant to s.186 of the Child Protection Act 1999 (Qld) to produce information that identifies the notifiers or from which the identity of the notifiers could be deduced in those documents particularised as follows:

   (a)a 5 page document entitled “Record of Concerns” in relation to those concerns received on 15 October 2015;  and

   (b)a 7 page document entitled “Record of Concerns” in relation to those concerns received on 21 October 2015;  and

   (c)a 6 page document entitled “Child Concern Report” identified by the number 21400463;  and

   (d)a 3 page document entitled “Record of Concerns” in relation to concerns received on 31 May 2018;  and

   (e)a 7 page document entitled “Notification” in relation to those concerns received on 31 May 2018;  and

   (f)a 7 page document entitled “Additional Notification” in relation to those concerns received on 4 July 2018.

2. Pursuant to s.69ZW of the Family Law Act 1975 (Cth) (as amended), the Director-General of the Department of Child Safety, Youth and Women in Queensland provide the Court with un-redacted copies of the documents referred to in Orders 1(a), (b), (c), (d), (e), and (f) above.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1344 of 2017

Mr Prout

Applicant

And

Ms Daniell

Respondent

And

Independent Children’s Lawyer

These Reasons which were delivered orally on 29 January 2020 have been amended pursuant to Rule 17.02A of the Family Law Rules 2004 to amend the cover sheet to accurately record the correct hearing date

EX TEMPORE REASONS FOR JUDGMENT

1. Counsel for the Independent Children’s Lawyer has helpfully identified a number of documents by reference to page numbers of Exhibit 7.  Those page numbers can be summarised as follows: 

   a)pages 265 to 274 and pages 275 to 281: which relate to documents brought into existence in 2018;  and

   b)pages 225 to 228, 229 to 236 and 237 to 242: being documents which were brought into existence in 2015,

   as a consequence of information provided to the Department.

2. Section 186 of the Child Protection Act 1999 (Qld) relevantly prohibits the disclosure by the Department (being the recipient of a notification) of information including the identity of a notifier to another person, unless such disclosure is made, relevantly, by way of evidence given in a legal proceeding under ss 186(3) and (4): see 186(2)(f) of the Child Protection Act 1999 (Qld).

3. Section 186(3) provides that, subject to ss (4) of that section, evidence of the identity of a notifier, or from which the identity of a notifier could be deduced, must not be given in a proceeding before a court without leave of the court; and, unless such leave is granted, a party or witness in the proceeding: must not be asked, and cannot be required to answer, any question that cannot be answered without disclosing the identity of or leading to the identification of, the notifier; and must not be asked and, if asked, cannot be required to produce any documents that identify or may lead to the identification of the notifier.

4. Section 186(4) of the Child Protection Act 1999 (Qld) provides that the court must not grant leave for the giving of evidence of the identity of a notifier, or from which the identity of a notifier can be deduced, unless it is satisfied the evidence is of critical importance in the proceeding and there is a compelling reason in the public interest for disclosure. Further, pursuant to s 186(5) of the Child Protection Act 1999 (Qld), in deciding whether to grant leave, the court must take into account the possible effects of disclosure on the safety or wellbeing of the notifier and the notifier’s family; and the public interest in maintaining confidentiality of notifiers.

5. In determining to make an order that the Department provide unredacted copies of those document already identified, I have taken into account the possible effects of disclosure on the safety or wellbeing of the yet to be identified notifier and that person’s family, and the public interest in maintaining confidentiality of notifiers. 

6. I am persuaded, and am satisfied, that the identity of the notifier in relation to the complaints made to the Department in 2015 and 2018 (as captured within those documents to which reference has been made) is of critical importance in the proceeding.  I am also satisfied that there is a compelling reason in the public interest for disclosure of that information in these proceedings, being parenting proceedings, as between the parents, for parenting orders in relation to their children. 

7. Some of the information sought relates to allegations of alleged behaviour by the father toward another child who lives in his home and, therefore, it seems to me to be of critical importance to know the source from which the complaint and allegation arose. 

8. I also note that previous orders made when the matter was in the Federal Circuit Court attempted to deal with this issue. 

9. An order made by Judge Cassidy on 3 April 2017 included an order that, pursuant to s 69ZW of the Family Law Act 1975 (Cth), the Director-General of the Department of Communities, Child Safety and Disability Services (as the Department was then known) provide Chambers with the following information, marked up but unredacted, and to corroborate it by source documents where possible: documents which included any notifications to the Department relating to the father; the mother; the children, U and V, who were the children the subject of this current parenting proceedings; the mother’s child with Mr B, (W); the father’s then partner and now wife, Ms A (as she was formerly known); her children, X and Y; and, also, the mother’s other son with Mr B, Z. 

10. So it appears, at first blush, that those documents which were brought into existence in 2015 should, properly, have been considered and fell within the scope of that order. 

11. It is also relevant to record that, on 9 June 2017, Judge Cassidy made an order in relation to the documents then produced by the Department (pursuant to the earlier order her Honour made) that she was satisfied that the evidence of the notifiers was of critical importance to the proceedings before the court and that there was a compelling reason in the public interest for disclosure. 

12. Her Honour also made an order, subsequent to that order, that the Department was given leave pursuant s 186 of the Child Protection Act 1999 (Qld) to produce information that identifies the notifiers, or from which the identity of the notifiers could be deduced.

13. It is obvious that, chronologically speaking, such order pre-dated those documents brought into existence in 2018, the documents being the subject of earlier reference in these Reasons: those documents, of course, could not be captured by her Honour’s order made on 9 June 2017. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 October 2019.

Associate:     

Date:              29 October 2019