Rittman and Rittman (No 2)

[2011] FamCA 187

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN (NO 2) [2011] FamCA 187

FAMILY LAW – CHILDREN – Notification of child abuse – Disclosure of notifier identity – Where credibility of parties is at issue – Where allegations of notifications have been found by the Department to be unsubstantiated – Disclosure considered by section 186 of the Child Protection Act 1999 (Qld) and section 69ZW of the Family Law Act 1975 (Cth) – Appropriate to order the disclosure of notifiers’ identity under a consideration of either section.

REASONS FOR JUDGMENT – DISCLOSURE OF IDENTITY OF NOTIFIERS PURSUANT TO S 69ZW(3)
OF THE FAMILY LAW ACT 1975 (Cth)

APPLICANT: Mr Rittman

RESPONDENT: Ms Rittman

INDEPENDENT CHILDREN’S LAWYER: Mr Damian Carter, Solicitor

FILE NUMBER: BRC 2571 of 2009

DATE DELIVERED: 18 January 2011 (orally)
23 February 2011 (written) from Chambers

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 18 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Waterman of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: Harrington Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Galloway of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Pippa Colman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor of Counsel appearing for the Independent Children's Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Damian Carter, Solicitor of Carter Farquar Lawyers

COUNSEL FOR DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) Mr Jarro of Counsel appearing for the Department of Communities (Child Safety Services)

Orders

IT IS ORDERED THAT:

1. Pursuant to s 69ZW(6) of the Family Law Act 1975 (Cth) the identities of the notifiers contained in the Department of Communities (Child Safety Services) (Town G) notification documentation of 8 July 2009 and 23 July 2009 be disclosed.

IT IS NOTED that publication of this judgment under the pseudonym Rittman & Rittman (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2571/2009

Mr Rittman

Applicant

And

Ms Rittman

Respondent

REASONS FOR JUDGMENT

1. The parties to this litigation are in dispute as to the arrangements that should be put in place in relation to their eleven year old daughter, O.  O has been diagnosed with tuberous sclerosis which affects her both physically and mentally.

2. The litigation proceeded before me over nine trial days.  There were a total of 35 witnesses and 44 exhibits.

3. The allegations made by the respective parties left no room for compromise.  In many instances it was a case of one party or the other being deliberately misleading.

4. As part of the evidence in the case the file of the Department of Communities (Child Safety Services) had been subpoenaed and tendered into evidence.

Brief Chronology

1. The parties married in 1994 and separated on 1 January 2009.  The father instituted proceedings in April 2009 seeking orders that O live with him. 

2. Orders were made on 12 June 2009 granting the father time with his daughter each Saturday and Sunday on an unsupervised basis from 7.00 am until

   
   

   7.00 pm.  The mother had sought an order for very limited supervised time of two to four hours at a Contact Centre.

3. Notifications were made to the Department of Communities (Child Safety Services) on the 8 July 2009 and 23 July 2009.  The terms of the first notification appeared to relate in part to events about seven or eight years previously when the father was showering with the then three year old O.

4. The evidence presented to the Court during the course of the protracted hearing included events which I described in my reasons for judgment dated

   
   

   17 February 2011 as “mysterious”.

5. The mother annexed various documents to her trial affidavit said to have been in the father’s handwriting and to have been given to her by him.  The father denied he was the author of such documents.  Two handwriting experts confirmed that one of the documents was fabricated using readily available software which allows the manipulation of text.

6. There was further mystery in that the older daughter of the parties, who attends boarding school in Victoria, received a bundle of documents which purported to come from the father but which he denied sending.  Similarly, a bundle of documents had been sent anonymously to a psychiatrist preparing a report.  The nature of the documents would lead an unsuspicious mind to assume they had emanated from the father, but he once again denied sending any such material.

7. It is important to note that this is not a case of an aggrieved litigant seeking the disclosure of the identity of the notifier for any ulterior purpose.  The request for the disclosure of the identity of the notifiers emanated from the Bench.  I would never have made such a request if I had not been satisfied that it may assist in the fact finding task that confronted me.

8. After the request for the identity of the notifiers to be disclosed was made, Counsel appeared for the Department of Communities (Child Safety Services) and produced written submissions arguing against the making of any such Order.  The main thrust of the submissions was in the general sense, namely the question of the importance in the public interest of protecting the identity of notifiers.

9. For brief reasons given at the time I overruled the objection and directed that the identity of the notifiers be disclosed.  Counsel then, quite properly, requested that I supply written reasons for the decision.  These reasons are delivered in response to that request albeit the substantive judgment has now been finalised.  I deemed it more appropriate to deliver the reasons for judgment in the substantive hearing and to then append a copy of those lengthy reasons to these brief reasons.

10. Section 69ZW(3) of the Family Law Act 1975 (Cth) is in the following terms:

    “(6) Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that persons, unless:

    (i)    the person consents to the disclosure; or

    (ii) 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.”

11. It is important to note that none of the allegations in the notifications had been canvassed in the proceedings before me in June 2009.  They first surfaced in a police investigation consequent on the notifications to the Department of Communities (Child Safety Services) on the 8 July 2009.  They also again surfaced during the course of interviews by the social worker preparing the family report in this matter.  The date for that interview was the 13 July 2009.  Curiously, the allegations were again not raised in the proceedings before me on the 20 July 2010 where I made orders granting the Father unsupervised overnight time.

12. Counsel for the Department of Communities (Child Safety Services) drew the Court’s attention to the terms of s 186 of the Child Protection Act 1999 (Qld) whereby a Court must not grant leave to reveal a notifier’s identity unless it is satisfied such evidence is of critical importance to the proceedings. The Court must also be satisfied there is a compelling reason in the public interest for disclosure.

13. The relevant operative section which I must consider is s 69ZW(3).

14. The request for the disclosure of identity emanated from the Bench.  It is noteworthy that the Department of Communities (Child Safety Service) found the allegations contained in the notifications unsubstantiated for reasons set out in the Department’s file.

15. It is obvious from the reasons for judgment as appended that I have made scathing findings as to the credibility of the mother.  It was important for a trial Judge to ascertain whether the allegations had come about from a source that was at arms length or in other words quite objective from the mother’s case.

16. The reality is the notifier of the 8 July 2009 is an old friend of the mother and I have made a firm finding that it is likely the mother instigated the notifier to make the notification in the terms that he did.  The second notification was by a psychologist who had been seeing O.  It appears that nothing had been said of these matters during previous visits but disclosures were made and the psychologist who had been seeing the mother and O was compelled under mandatory reporting provisions to make the notification which she did.

17. I have no doubt whatsoever that this was an appropriate case in which the identity of the notifiers should be disclosed as it was important in the assessment of the validity of the conflicting evidence, whether I apply the test under s 186 of the Child Protection Act 1999 (Qld) or s 69ZW of the Family Law Act 1975 (Cth).

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 18 January 2011.

Associate: 

Date:  23 February 2011