RICHARDS & MORRIS (IDENTIFICATION OF NOTIFIER) - [2014] FamCA 1027

FAMILY COURT OF AUSTRALIA

RICHARDS & MORRIS (IDENTIFICATION OF NOTIFIER)

[2014] FamCA 1027

FAMILY LAW – PRACTICE AND PROCEDURE – Leave – Where Court gave parties leave to ask questions of the father which might disclose the identity of, or lead to the identification of, relevant notifiers to the Department of Communities, Child Safety and Disability Services – Where all parties support the grant of leave – Where identity of some of the notifiers to the Department were already known by the parties – Where the name of the notifier was not redacted from the material produced by the Department in answer to the subpoena, rather the full name of the notifier was disclosed – Where some notifiers have identified themselves in materials filed in proceedings – Where Court considered the relevant tests of ‘critical importance’ and ‘compelling reasons in the public interest’ contained in section 186 – Where Court noted that if prohibition contained in that section is overcome, it would enable the opportunity for the exercise of discretion but no more – Where Court noted the ultimate question was whether, taking those matters into account on the facts, it is in the interest of justice for the leave to be granted – Where alleged the father, his family or others at his behest have made numerous notifications with the express intention of undermining the mother – Where Court satisfied such is a matter of critical importance – Where Court satisfied that in the circumstances of the case collectively amount to a compelling reason in the public interest of whether or not the father is a notifier, or whether those associated with him are – Where Court gave consideration as to whether discretion should be exercised – Where Court satisfied the interests of justice weigh in favour of discretion being exercised so as to grant leave – Where Court considered whether the test in section 67ZW(6) is met, mindful that it may be a stand-alone test – Where Court satisfied that to the extent that disclosure might identify that the father or his associates made many of the notifications, a failure to permit such would prejudice the proper administration of justice in this case.

Family Law Act 1975 (Cth) s 67ZW
Child Protection Act 1999 (Qld) s 186

Department of Family & Community Services v Jordan (2012) 47 Fam LR 666
Rittman v Rittman (No. 2) [2011] FamCA 187
Susskind v Dean [2011] FAmCA 924

APPLICANT:

Mr Richards

RESPONDENT:

Ms Morris

INDEPENDENT CHILDREN’S LAWYER:

Ms Meehan

FILE NUMBER:

TVC

829

2013

DATE DELIVERED:

19 November 2014

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

6 November 2014

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Byrne

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Victiore

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

M M Meehan

IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Morris (identification of notifier) has been approved by the Chief Justice pursuant…

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.

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Details

Case: [2014] FamCA 1027
Decision Date: 19 November 2014

CaseChat Overview and Summary

In the matter of Richards & Morris, Tree J of the Family Court of Australia considered an application for leave to ask questions of the father that might reveal the identity of, or lead to the identification of, notifiers to the Department of Communities, Child Safety and Disability Services. All parties supported the grant of leave. The court noted that the identity of some notifiers was already known, and the Department had disclosed full names rather than redacting them from subpoenaed material. Some notifiers had also identified themselves in filed materials.

The central legal issue before the court was whether to grant leave for questions that could identify notifiers, applying the tests of "critical importance" and "compelling reasons in the public interest" as contained in section 186 of the relevant Queensland legislation, and considering section 69ZW(6) of the *Family Law Act 1975* (Cth). The court had to determine if these statutory prohibitions could be overcome, thereby enabling the exercise of discretion in the interests of justice. The court also considered allegations that the father, his family, or others at his behest had made numerous notifications with the intention of undermining the mother.

Tree J reasoned that the allegations of vexatious notifications were a matter of critical importance. The court was satisfied that, in the collective circumstances of the case, there were compelling reasons in the public interest to investigate whether the father or his associates were the notifiers. The court considered whether to exercise its discretion and concluded that the interests of justice weighed in favour of granting leave. Furthermore, the court was satisfied that to the extent disclosure might reveal that the father or his associates made many of the notifications, a failure to permit such inquiry would prejudice the proper administration of justice in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Also potentially relevant to this application is s69ZW of the Family Law Act 1975 (Cth) which provides as follows:69ZW Evidence relating to child abuse or family violence(1) The court may make an order in child‑related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.(2) The documents or information specified in the order must be documents recording, or information about, one or more of these:(a) any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;(b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;(c) any reports commissioned by the agency in the course of investigating a notification.(3) Nothing in the order is to be taken to require the agency to provide the court with:(a) documents or information not in the possession or control of the agency; or(b) documents or information that include the identity of the person who made a notification.(4) A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order.(5) The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.(6) Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:(a) the person consents to the disclosure; or(b) the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.(7) Before making a disclosure for the reasons in paragraph (6)(b), the court must ensure that the agency that provided the identity or information:(a) is notified about the intended disclosure; and(b) is given an opportunity to respond. It appears as though most, if not all, of the States and Territories have provisions akin to s186 of the Queensland Child Protection Act. The Full Court considered the New South Wales equivalent, together with s69ZW, in Department of Family & Community Services & Jordan (2012) 47 FamLR 666. That was an appeal against an order, seemingly under s69ZW for the production to the Court of a Notification of Suspected Abuse and associated documents. The order specifically required the Director General to disclose the relevant notifier’s identity. The trial Judge identified that the credit of several key parties was under consideration in the trial before her, and for that reason, concluded that “the details of the report is critically important to the proceedings.” Having discussed the relevant statutory provisions, the Full Court said as follows at [53]-[58]: 53. In this case it is clear that her Honour addressed the first limb, namely that the identity and information was critically important but did not go on to consider whether failure to order disclosure would prejudice the proper administration of justice. In our view and notwithstanding that her Honour said the notifier’s identity was of critical importance, she did so primarily on the basis that this would assist her to make credit findings. We are unable to agree that disclosure for this reason would satisfy the test. In this regard we agree with the Director-General that in most cases the identity of the notifier will not be relevant. What is relevant is the findings and investigation which resulted from the notification.54. We also agree with the submission made by counsel for the mother that her Honour was required to engage in an active intellectual process in which each limb of the test received genuine consideration: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105]. Had her Honour considered the decision of Johnston J in Halsen v Nasser Talbet (2010) 44 Fam LR 248 it would have been clear that s 29 of the State Act and not s 69ZW was the governing provision. This would also have reminded her Honour of the important second limb of the State (and Federal) test and that she was ultimately required to balance critical importance to determination of a child’s best interests with public policy considerations that ensure an effective system of child protection notification.55. There is no attempt in s 69ZW to provide procedural fairness to the notifier. Rather, s 69ZW(7) affords procedural fairness to the agency. This is a matter of some significance and reinforces the notion that the agency and the Court are obliged to protect the identity of notifiers in accordance with the Act and State or Territory legislation.56. It follows that s 69ZW does not empower a court exercising jurisdiction under the Act to override protections afforded to notifiers by State and Territory legislation. As we trust the above analysis makes clear, the scheme of s 69ZW is to preserve to the States and Territories the power to legislate in relation to disclosure of identification material entrusted to the agency. Consistent with Northern Territory v GPAO (1999) 196 CLR 553, by virtue of s 79 of the Judiciary Act 1903 (Cth), s 29 of the State Act is picked up in effect as a surrogate law of the Commonwealth. Although reference to the Revised Explanatory Memorandum, Family Law Amendment Bill 2006 (Shared Parental Responsibility) was unnecessary to determine the meaning of s 69ZW of the Act, we observe it is consistent with our interpretation.57. It follows that in each State and Territory, in relation to children where child abuse or family violence is suspected, there is a coherent system of protection offered to persons who report their concerns to child welfare agencies. In each place, child welfare agencies will thus have a uniform system for how, where and in what circumstances information which does or could disclose the identity of a notifier is handled.58. Thus notifiers to State and Territory agencies are protected to the extent that those States and Territories determine. To the extent that s 69ZW of the Act has a role to play it is by virtue of the limitations imposed on the documents and information amenable to a production order (which does not include the identity of a notifier) and to the extent required renders inoperative a contrary State or Territory law. Section 69ZW ensures that prior to disclosure of volunteered information that does or could identify a notifier there is another assessment of whether that information should be further disclosed. This further disclosure can only be ordered in accordance with the strict test and procedural fairness requirements of the section. Although this will mean that an equivalent test (ss 29 and 69ZW) will be applied twice, namely whether pursuant to State legislation to order disclosure to the Court and then, pursuant to the Act whether to disclose to the parties, the public policy imperatives that underlie this issue renders these safeguards appropriate.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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