Ridley and Ridley

[2020] FamCA 540

FAMILY COURT OF AUSTRALIA

RIDLEY & RIDLEY [2020] FamCA 540

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Child-related proceedings – Where the Commissioner of Police produced documents pursuant to subpoena – Where one specific document was produced by the Commissioner in redacted form – Where the document was redacted due to concerns by the Commissioner that details of allegations contained within the document would disclose the identity of the notifier and may compromise future investigations – Where contents of the redacted document are suppressed outside these proceedings for 10 years – Where the redacted version of the document, along with the other documents produced, may be inspected by the parties, the Independent Children’s Lawyer and their respective legal representatives – Application dismissed in part – No order as to costs.

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(f)
Family Law Act 1975 (Cth) Pt VII, ss 102PI, 121

APPLICANT: Mr Ridley

RESPONDENT: Ms Ridley

INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

FILE NUMBER: NCC 2245 of 2012

DATE DELIVERED: 29 June 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 29 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ticehurst

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associate

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Merridy Elphick Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Sharon Moore Solicitor

Orders

IT IS ORDERED THAT

1. Pursuant to Part XIA of the Family Law Act 1975 (Cth), the contents of the document described by NSW Police as C… are suppressed outside these proceedings for 10 years.

2. Leave is granted to the parties, the Independent Children’s Lawyer, and their respective legal representatives to inspect all documents produced on subpoena by the Commissioner of NSW Police, save for document C…, which may only be inspected in the redacted form in which it has been produced by the Commissioner.

3. No copy of document C… in its redacted form is to be taken or sent outside the premises of the Registry of the Family Court of Australia.

4. Otherwise, the Application in a Case filed by the Commissioner of NSW Police on 24 June 2020 is dismissed with no order as to costs.

BY CONSENT, IT IS FURTHER ORDERED THAT

1. The parties and the Independent Children’s Lawyer are granted access to any exhibit tendered in evidence in the interim hearing before Justice Cleary on 2 September 2019.

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 Ridley & Ridley 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 NEWCASTLE

FILE NUMBER: NCC 2245 of 2012

Mr Ridley

Applicant

And

Ms Ridley

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) are listed for trial today.

2. On 21 May 2020, the Independent Children’s Lawyer (“the ICL”) served a subpoena upon the Commissioner of NSW Police (“the Commissioner”) to produce documents to the Court concerning the parties and their respective partners. The mother’s partner is Mr F. The Commissioner has produced documents in response to the subpoena, but objects to the production of anything other than a redacted version of one particular document concerning Mr F. The relevant document is a police record (identified as C…), apparently created in late 2019, which records a report of child sexual abuse made against Mr F.

3. The document has been redacted by the Commissioner so that its production and inspection is in keeping with the object of s 29(1)(f) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

4. The Commissioner’s redaction of the document is also motivated by a concern that the revelation of specific details of the allegations contained within the document would compromise any future investigation or prosecution against Mr F, because Mr F would be forewarned of the details.

5. The affidavit filed in support of the Commissioner’s objection explained the basis for the concern in this way:

   Police consider the investigation to be suspended with no further investigation occurring until such time in the future that [the allegedly abused child] decides to make further disclosures or to assist with making of a statement. At that time, police will reopen the investigation.

6. If Mr F remains the subject of a suspended police investigation – one which is not closed, but able to be reactivated – then the Commissioner fears he may interfere with witnesses or fabricate exculpatory explanations before he is interviewed by police. As the subject child has not participated in a record of interview, the Commissioner also considers there is a risk that Mr F could threaten or pressure him not to do so or to change his allegations to Mr F’s advantage. 

7. The Commissioner also submitted more broadly in these terms:

   It is submitted that the order should be made to prevent prejudice to any future police investigation specifically referable to the document marked C of the confidential tender bundle, but also to future police operation and investigations generally.

8. The parties and the ICL generally acceded to the Commissioner’s objection and were content to receive only a redacted version of the subject document, though the ICL’s counsel indicated this morning that the ICL now raises objection to various terms of the orders proposed by the Commissioner. 

9. The terms of Orders 1, 2 and 3, which I shall shortly make, in my view satisfactorily address the grounds of the Commissioner’s objection. 

10. I do not intend to suppress any part of the transcript of the proceedings or any part of my reasons for judgment ultimately published to determine the dispute under Part VII of the Act, insofar as the transcript or the reasons reveal the contents of the document because:

    a)if only the redacted form of the document is produced, inspected and later tendered in evidence, the only detail revealed is that an allegation of Mr F’s sexual abuse of his son was made to police in late 2019;

    b)the allegation in those generic terms is central to the resolution of the dispute between the parties over their child and to a proper understanding of the evidentiary basis upon which the dispute is determined;

    c)those facts are already well known to the parties and the ICL by reason of the evidence adduced in their affidavits and in the Family Report, which will be shortly be received in evidence; and

    d)the publication of reasons for judgment under a pseudonym, with attendant anonymisation, will protect the identities of the child, the parties, Mr F and his son.

11. I reject the evidence proffered by the Commissioner in these terms:

    Anonymisation of the judgment would not be sufficient…

12. I also reject this submission made by the Commissioner:

    …Section 121 [of the Act] prevents the restriction on publication. It does not prevent the disclosure of information. The protections afforded by s 121 are not sufficient to address the concerns and wider orders are required to prevent all persons, including the parties themselves from disclosing information contained within document “C” to the confidential tender bundle.

13. I also reject this submission made by the Commissioner, at least in the circumstances of this case:

    Disclosure of the fact that a complaint has been made (including the details of the allegations) to police could harm the public interest and cause prejudice to the proper administration of justice. Future sources of information (i.e. the victim or a reporter) would be discouraged from complaining to police if they knew that their identity, or information in relation to alleged conduct and reasons for not proceeding, could be disclosed to the offender or the wider public. This could harm the public interest in encouraging victims of sexual assault offences or reporters to report the crime to police.

14. The parties and Mr F already know that a complaint was made in 2019 alleging that Mr F sexually abused his son. Mr F gives evidence of being told that by police and the issue is ventilated at length in the Family Report prepared in December 2019. 

15. The Commissioner also sought orders in the following terms, which I decline to make:

    …

    (2)The Court makes orders 1a and 1b until the year 2081 or until further order, except as necessary for any conduct of the proceedings, including any appeal(s);

    (3)The Court be closed for any part of the proceedings that might reveal the contents of the document;

    (4)Restricted access is granted over the document to legal representatives in the proceedings only.

    …

16. In respect of the duration of the suppression order, the Commission submitted this:

    …that the time period for the order being the year 2081 accounts for the average lifespan of a person and the ability for a victim to proceed with a criminal prosecution.

17. Mr F’s son is now 13 years of age. Under s 102PI of the Act, the suppression order will be confined to a period of 10 years. By then, Mr F’s son will be 23 years of age, he will have acquired his majority, and he will have had more than sufficient time to reactivate the complaint if he wishes to do so.

18. I decline the application for an order to close the Court every time the issue of Mr F’s alleged sexual abuse of his son is raised. The issue will likely be raised with every witness more than once. In conjunction, the suppression order which will be made shortly, the anonymisation of the reasons for judgment, the attribution of a pseudonym to the published judgment, and the deterrent provisions of s 121 of the Act, will be more than sufficient to deal with the Commissioner’s concerns.

19. The redacted document produced by the Commissioner may be inspected by the parties, the ICL and their lawyers, like all other documents which have been produced. Absent a logical explanation being advanced – and there was none – for why only the lawyers and not the litigants can inspect the document, the proposed order to restrict the release of the document to the lawyers is rejected. Lawyers run cases for parties pursuant to instructions, provided they adhere to ethical obligations. What is the point of the lawyers inspecting the document if its contents cannot be discussed with their clients? What is the point of keeping the parties from the document if they are going to hear all about it in their own cross-examination and the cross-examination of the other witnesses? The Commissioner had no sensible answers to those questions.

20. Copies of the redacted document cannot be taken or disseminated outside the premises of the Registry of the Family Court of Australia.

21. All documents produced on subpoena by the Commissioner will, in due course, be returned upon the pronouncement of orders and the publication of reasons for judgment, subject to the parties’ rights of appeal.

22. For those reasons, I make the following orders.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 29 June 2020.

Associate: 

Date:  14 July 2020