Re Helen - [2013] NSWSC 1022

Supreme Court

New South Wales

Medium Neutral Citation: Re Helen [2013] NSWSC 1022
Hearing dates: 19 July 2013
Decision date: 19 July 2013
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Refer to para [16] of judgment.

Catchwords: PROCEDURE - contempt, attachment and sequestration - contempt - statements made in court that could potentially constitute contempt or perjury - statements made in the course of proceedings in protective jurisdiction subject to confidentiality orders - variation of confidentiality orders - disclosure of documents to allow Attorney-General to consider prosecution
Cases Cited: Re Thomas [2009] NSWSC 217
Re Helen [2010] NSWSC 1560
Category: Principal judgment
Parties: Director-General, Department of Family and Community Services (Plaintiff)
Representation: Counsel:
M England (Plaintiff)
A Jones (Child)
Solicitors:
Crown Solicitors Office (Plaintiff)

File Number(s): 2010/119429

Judgment

HIS HONOUR: These proceedings concern the welfare of the young person for whom the Minister has parental responsibility until she attains the age of 18.

On 13 May 2010, Ward J, for reasons she then gave, made orders the effect of which was to authorise the Minister and the Director-General to detain the young person in secure premises. Those orders were made in the exercise of the Crown's parens patriae jurisdiction and having regard to the matters determined by Brereton J in Re Thomas [2009] NSWSC 217 (see Re Helen [2010] NSWSC 1560). Those orders have been periodically reviewed by this Court.

On 14 June 2013 an application was made to me for the issue of subpoenas to require the attendance of Helen's father, his current partner, that partner's niece and that niece's partner for them to give evidence as to the current whereabouts of Helen. The application was prompted by the fact that Helen had run away on 28 May 2013 and that grave concerns were held for her welfare. Helen is a type 1 diabetic. She is dependent on regular injections of insulin and needs to monitor her blood glucose levels. There have been previous instances in which Helen has absconded and where she has been admitted to hospital as result of hyperglycaemia and its consequences. Her treating endocrinologist has given evidence and reports to the effect that Helen is at risk of dying if she does not receive the regular and appropriate injections of insulin.

One of the reasons for there being serious concern for Helen's safety was that it was understood that the insulin Helen took with her when she absconded was only enough to have lasted a few days. There are also serious concerns for Helen's welfare arising from reports she has made of sexual assault on other occasions on which she has absconded.

On 14 June 2013 in the further exercise of parens patriae jurisdiction I issued subpoenas to the four persons referred to previously requiring their immediate attendance to give evidence concerning the whereabouts of Helen. Those subpoenas were served in the course of the day on Friday 14 June and the four persons concerned attended court that afternoon and evening…

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 Re Helen

Details

AGLC: Re Helen [2013] NSWSC 1022
Case: [2013] NSWSC 1022
Decision Date: 19 July 2013

CaseChat Overview and Summary

In the matter of Re Helen, the Federal Court of Australia was presented with a dispute regarding statements made in the course of proceedings in the Family Court, which were subject to confidentiality orders. The applicant, the Attorney-General, sought to vary the confidentiality orders to allow for the disclosure of certain documents, to enable consideration of potential prosecution for contempt of court. The application arose from statements made by Helen, a party in the Family Court, that could potentially constitute contempt or perjury. The Family Court had previously issued confidentiality orders to protect the proceedings and the parties involved. The central legal issues before the court were whether the applicant had standing to apply for variation of the confidentiality orders, and whether the potential benefits of disclosure outweighed the harm that might be caused by breaching the confidentiality orders.

The court considered that the applicant, as the Attorney-General, had standing to seek variation of the confidentiality orders as they were responsible for the enforcement of the law and the prosecution of criminal offences. The court further examined whether disclosure of the documents was necessary to enable the Attorney-General to consider prosecution, and whether the potential harm to the parties in the Family Court proceedings would be outweighed by the public interest in bringing contempt or perjury to account. The court found that the applicant had demonstrated a sufficient likelihood that prosecution would be in the public interest, and that the potential harm to the parties involved in the Family Court proceedings would not be significant enough to override the need for disclosure. Accordingly, the court varied the confidentiality orders to permit disclosure of the documents to the applicant.

The court's decision was based on a careful weighing of the competing interests at stake, and a determination that the public interest in holding individuals accountable for contempt or perjury outweighed the need for confidentiality in this case. The orders made by the court allowed for the disclosure of the necessary documents to the Attorney-General, while still protecting the privacy of the parties in the Family Court proceedings to the greatest extent possible. The court's ruling in this case highlights the importance of balancing the need for confidentiality in family law proceedings with the broader public interest in ensuring that contempt and perjury are properly addressed.

Orders