Russon and Knightley - [2011] FMCAfam 909

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUSSON & KNIGHTLEY

[2011] FMCAfam 909

FAMILY LAW – Due process – release and inspection of information – role and duties of Independent Children’s Lawyer – application of Division 12A principles – application of Evidence Act 1995 – role of the paramouncy principle in interlocutory and procedural determinations.

Family Law Act 1975, ss.60CA, 68L, 69ZN, 69ZQ, 69ZT, 69ZW, 69ZX, 121
Evidence Act 1995, ss.59, 69, 135, 136, 140, 142

U & U (2002) 191 ALR 289
M & M (1988) FLC 91-979
Johnson & Page [2007] FamCA 1235

Applicant:

MR RUSSON

Respondent:

MS KNIGHTLEY

File Number:

PAC 4997 of 2009

Judgment of:

Harman FM

Hearing dates:

24 and 25 February 2011

Date of Last Submission:

25 February 2011

Delivered at:

Parramatta

Delivered on:

25 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr Gardiner

Solicitors for the Applicant:

Cox West Lawyers

Counsel for the Respondent:

Mr Weaver

Solicitors for the Respondent:

Rafton Family Lawyers

ORDERS

I grant leave to the independent children's lawyer to inspect the file produced to this court from the Sydney Registry of the Family Court regarding the child [X].
I adjourn the proceedings to 11.30 am today to enable such inspection to occur.
I declare that I am satisfied, pursuant to s.69ZT(3) that any issue with respect to a risk or alleged risk of unacceptable risk to the child [Y] is a matter and determination to which the provision of the Evidence Act1995 can, must and will be strictly applied.
In the event of any application made to the court following an inspection of the above file, the issue of admissibility of any material arising from that file shall be dealt with on the voir dire.

IT IS NOTED that publication of this judgment under the pseudonym Russon & Knightley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 4997 of 2009

MR RUSSON

Applicant

And

MS KNIGHTLEY

Respondent

REASONS FOR JUDGMENT

Before the court this morning is an application seeking leave to inspect a file relating to a child, [X], now an adult and which child had been the subject of proceedings before the Sydney Registry of the Family Court in the early 1990s.
[X] is not a child of the relationship between these parties and no orders are sought with respect to her.
Evidence with respect to that child, on one level, is not directly relevant to the germane issues to be determined in these proceedings.
These are parenting proceedings with respect to a child [Y], who is the child of the parties to these proceedings, Mr Russon and Ms Knightley.
The child [X], as I have indicated and who is now an adult, is the child of Mr Russon and his former partner, then Ms Russon now

Ms S. The existence of that file would have been apparent or should reasonably have been apparent to all concerned in these proceedings and for some little time. However, the file has been produced in court today at the Court’s instigation and following evidence given yesterday, being day 1 of the trial.
The fact that the file is now in the registry has been made known to the parties and to the independent children’s lawyer and an application is made by the Independent Children’s Lawyer, though not by the mother, to inspect that file. Such leave is opposed by the father.
Inspection of the file is required prior to deciding whether to allow access to it. Access to the file could potentially be a breach of s.121 of the Family Law Act 1975 involving publication of proceedings. There are potentially other further public policy issues arising from the application particularly bearing in mind the child [X] is now over 18 and as far as is apparent no notice has been given to her of this application and, accordingly, she has not been given due process.
On a prior occasion a direction was made by the Court for the specific details of the child [X] to be provided to the Court by Mr Russon, through his solicitors. An order to that effect was made on 7 December 2010. The purpose of that order was to assist in the formulation and giving of notice to the Department of Human Services of an order made by this court on that day pursuant to the s.69ZW.
The Department has produced some material to the court which was released to the parties. That material did not include any material with respect to [X]. The Department has not advised any basis of non production of their records with respect to that child, being now at least 18 years old. It may be that the file has been destroyed given its age. The Court’s recording keeping policies would appear to be different as certainly the Court’s file from 1992 is still available.
During the course of Family Report interviews involving these parents and [Y] some minimal reference was made to [X] and past issues of abuse that were alleged to have been raised with the Department regarding her. In that regard, the suggestion of issues in relation to [X] in fact arose from [Y] who indicated that she had a sister, an elder sister, who was lost to her. Indeed, that is a cogent explanation, perhaps, of the circumstances as described by Mr Russon in relation to that child.
At paragraph 30 of the family report which was released in November 2010, [Y] is reported as saying to the report writer:
“[Y] talked a little about her father’s family. His own daughter [X], now about 21 years old, who was lost. She said she had seen a picture of [X] as a three year old at her father’s house but had never met her.”
That is the extent to which there is any information regarding that child.
During the course of cross-examination of Mr Russon yesterday a number of questions were put to him regarding entries from the material that was produced by the Department in relation to [Y]. That material is before the court, Exhibit M1. Portions of that material include assertions and statements by Departmental officers but with no other particularisation in 1996 and to the following effect:
“Further assessment record also reveals that the father,

Mr Russon, has a confirmed history of sexually abusing his then three year old daughter [X] in 1991.”
That is the extent of information offered by the Department in relation to this child.
Mr Russon was not cross-examined with any vigour in relation to any issues relating to [X]. As pointed out by Mr Russon’s counsel the Independent Children’s Lawyer didn’t direct any questions to him regarding it. That is not intended as a criticism but perhaps a more accurate reflection of the evidence that was then available. Some questioning was put to Mr Russon by Ms Knightley’s counsel regarding those issues and a complete denial provided by Mr Russon with respect to any misdoing on his part.
Indeed, when it was put directly to him, the entry which has been quoted from the Department’s file, suggesting a confirmed history of sexual abuse, Mr Russon’s response, “That is incorrect.” It was then put very directly to Mr Russon that he had sexually abused [X] which Mr Russon, with some vigour, denied and indicated that he had never sexually abused anyone.
The suggestion that was put, arising again from the material in Exhibit M1, is that there had been a confirmation by Departmental officers in November 1991, of penetration of [X] by her father. Mr Russon, when that was put to him, suggested that was a complete fabrication and had indicated, both to the report writer when she had questioned him regarding the issue and in his cross-examination, that he was of the view that the allegations had been maliciously raised and the child, [X], possibly coached in relation to any disclosure that she may have made.
Of course, there is no material before this court as to what disclosures were or were not made or what information was or was not available to the Department to support the assertion that is made by them in their material in relation to [Y] in 1996.
These proceedings had been listed for hearing before the court in December 2010 but following the release of the report and the report writer clearly indicating that there was a live issue that would require the court’s determination as to whether [X] was at risk of sexual abuse in the care of her parents. Those dates were vacated. An Independent Children’s Lawyer was appointed as recommended by the report writer and fresh hearing dates ultimately fixed for the matter expeditiously.
One concern with respect to the file is that clearly the existence of Family Court and Departmental files has been known to the court and accordingly all of parties for quite some months and no active step has been taken to obtain the file or access to it. That only arose, as indicted, yesterday and of the Court’s own volition to anticipate any application for access. To that extent, perhaps the court has created the circumstance which now presents itself by having ascertained that the file did, indeed, exist and having it brought to this registry. Whilst this court is not inquisitorial there is clearly available evidence and it falls to the court, whether the parties have chosen to pursue relevant lines of inquiry or not, to ensure that such lines of inquiry can be pursued, if appropriate.
These are proceedings under Part VII, albeit with respect to the child [Y], not [X], but it cannot, in my view, be submitted that an allegation of sexual abuse in relation to another child cannot and could not be relevant to a determination with respect to [Y]. So much is made clear by the report writer, Ms C, who both in her report, and perhaps amplified through her evidence in cross-examination, particularly in response to questions from the Independent Children’s Lawyer, made clear, to paraphrase her evidence, that the existence of a previous allegation with respect to another child amplified her concerns and in the terminology she used, “raised a flag” that required some investigation. As indicated, it is regrettable no one has sought to pursue that line of inquiry until the court has raised it.
In any event, as proceedings under Part VII Division 12A. The principles for conducting child-related proceedings are set out in s.69ZN of the legislation and the court is compelled by sub.s (1), to give effect to the principles it being put in mandatory terminology as follows:
“The court must give effect to the principles in this section in performing duties and exercising powers in relation to child-related proceedings and in making other decisions about the conduct of child-related proceedings.” [emphasis added]
Subsections (2) to (7) then set out the five principles which are to guide child-related proceedings and which the court must give effect to. They are as follows:
“The first principle is that the court is to consider the need of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”
Clearly, any issue or suggestion that there is a concern or evidence available that may give the court some basis for concern or which would assist in forming or rejecting a view that there is a risk of harm to the child, would be relevant.
The principles continue:
“The second principle is the court is to actively, direct, control and manage the conduct of the proceedings.”
That principle, perhaps, was not envisaged by the legislators to see the court being placed in the role of identifying and ensuring the availability of admissible evidence when, clearly, that was the job of the parties but, in any event, that is what the court has done.
The third principle provides:
“…the proceedings are to be conducted in a way that will safeguard the child concern against family violence, child abuse and child neglect and similarly to protect the parties against family violence.”
In this case, there are no issues of family violence as between the parties but there is, at least on the evidence of the family report writer, still issue raised as to whether the court can or should be satisfied that there is or is not an unacceptable risk to [Y].
During the course of the hearing yesterday, it was indicated, through the mother’s counsel, that the mother no longer seeks to raise any issue or suggestion that there has been sexual abuse of [Y] nor and suggestion that she is at risk of abuse and that the proceedings, accordingly, devolve to a determination as to competing parenting applications, absent that issue.
As was submitted by the independent children's lawyer at that time, and which I accept, the position of the parties and their adherence or abandonment, (those terms not being specifically used as terms of criticism), of any allegation or issue in the proceedings, does not bind the court. The concern, in that regard, is perhaps analogous to the High Court’s decision in U & U (2002) 191 ALR 289. Whilst the starting point for the Court is to ascertain the parties’ proposals, the court is not bound by them. Similarly, the court is not bound by determination by the parties of what issues are in dispute or, the manner in which the parties, or either of them, chose to interpret or present evidence before the court. To adopt such a course would be a dereliction of the Court’s duties and powers specifically under ss.69ZQ and 69ZX.
To that extent the third principle, as set out above, would have some relevance to the decision to be made as to whether access is granted.
The fourth principle is that proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child focused parenting. That is a very real issue in this case as clearly Ms Knightley, having indicated yesterday that she is no longer adhering to an allegation of abuse or a risk of abuse in the proceedings, has taken a step towards, at least on face value, a cooperative approach between herself and Mr Russon in future parenting.
Access to information such as that which, in all probability, might, be contained within the file relating to [X] from previous Family Court proceedings could not, in my mind, do anything other than to undermine the ability of these parents to trust each other, cooperatively parent or otherwise engage in shared parental responsibility which each of them presently proposes, although that is still an issue at large for the court to determine.
However, no application is made by Ms Knightley to view the file. That is not to suggest that if access were granted to the independent children's lawyer that that would not or could not, at some point, extend to Ms Knightley or at least her advisers. However, at this stage, the application I am faced with is for the independent children's lawyer to inspect that file and, accordingly, Ms Knightley would have no direct knowledge of the file or its contents, leaving aside Ms Knightley’s being present to hear questions that might subsequently be put or submissions made in relation to the contents of that file and the potential for that to undermine or impacting upon a cooperative and child-focused parenting relationship.
The fifth principle is that:
“proceedings are to be conducted with undue delay and with as little formality and legal technicality and form as possible.”
There are two aspects of that principle that are relevant to this case. As counsel for Mr Russon, quite correctly asserts, at this point in the proceedings, day 2, and when we are two-thirds of the way through evidence, access to the file has the potential to broaden the ambit of the dispute, cause potential for further witnesses to be required and possibly recall witnesses and re-open various issues in the case or, indeed, create issues which were not previously apparent.
Again, they are perhaps not previously apparent because no one has yet bothered to make any application or approach to the court to ascertain the existing of this file, bring it before the court and deal with this issue before today.
The second issue, however, relates to the court’s entreaty to deal with proceedings with as little formality as possible. That perhaps is best embodied in s.69ZT of the Act which provides that certain provisions of the Evidence Act 1995 - those contained in divisions 3, 4, 5 and Parts 2.1, 2.2, 2.3, 3.2 and 3.8 do not apply to proceedings before this court under Part VII.
Subsection (2) of s.69ZW provides that:
“The court may give such weight, if any, as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act not applying…” [Emphasis added]
The court is left, however, with a general discretion in subsection (3) which provides:
“the court may decide to apply one or more of the provisions of a division or part…[of the excluded portions of the Evidence Act]…if…the Court is satisfied that the circumstances are exceptional, and…the court has taken into account:
i)the importance of the evidence in the proceedings;
ii)the nature of the subject matter of the proceedings;
iii)the probative value of the evidence; and,
iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence”
In any proceedings or with respect to the determination of any issue in the proceedings it is to be remembered that s.69ZR permits the court to make determinations and findings with respect to specific issues at any stage in the proceedings and as part of the global determination of the dispute or as a separate discrete issue.
That perhaps flows on germanely to the provisions of the Evidence Act 1995 that apply in this case. It has often been stated, and it has for many years been accepted, that a “Briginshaw scale” of the civil standard proof applies in any proceedings. One need not necessarily refer to it, as a “Briginshaw scale” any more as that is, in fact, codified in s.140 of the Evidence Act 1995 which entreats the court, in any civil proceedings, to find a fact proved on the balance of probabilities but to consider the test as to what is more probable than not, a sliding scale depending upon the nature of the cause of action or defence, the subject matter of the proceedings and the gravity of the matters alleged.
Other provisions of the legislation deal with similar issues. In dealing with the question as to whether leave should be granted to inspect the file I would firstly turn to s.142 of the Evidence Act 1995 regarding admissibility of evidence. Section 142 provides:
Admissibility of evidence: standard of proof
(1) Except as otherwise provided by this Act, in any proceeding the
court is to find that the facts necessary for deciding:
a)a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or
b)any other question arising under this Act;
have been proved if it is satisfied that they have been proved on the balance of probabilities.
(2)In determining whether it is so satisfied, the matters that the court must take into account include:
a)the importance of the evidence in the proceeding; and;
b)the gravity of the matters alleged in relation to the question
Section 142 applies the same test for admissibility such that admissibility is determined, not on a uniform, homogenous basis, but on a sliding scale, depending upon the importance of the evidence, its probative value and the gravity of the matters alleged in relation to the question.
Other provisions speak to and give more significant insight into what is intended by ss.140 and 142, and in particular ss.135 and 136 of the Evidence Act 1995 which invest the court with a general discretion to exclude or limit the use of evidence if it is considered to be unfairly prejudicial to a party, misleading or confusing or cause or result in an undue waste of time.
Whilst all of the above provisions have some relevance to the question that falls for determination, the other matter of some relevance flowing, from the Evidence Act 1995, is the nature of the records that would be inspected.

The Courts file is clearly a business record of the Commonwealth and as such would clearly, even with a strict application of the provisions of the Evidence Act 1995, form an exception to the hearsay rule in ss.59 and 69 of the Act.
As such, evidence that might arise from an inspection of the file and either give rise to a line of questioning or tender of written material would, prima facie, be argued to be admissible. That still leaves issues as to the material being unfairly prejudicial and the probative value of the evidence and accordingly whether it would ultimately be accepted into evidence. Again, I am, at this point, not dealing with the admission of the evidence but simply an application to inspect the file.
It may be that the inspection comes to nought. It may be that the inspection of the file assists in concluding a line of inquiry and obviates the need to take any further action in relation to that issue. It may not. It may, in fact, give rise to information that causes some other application or some other course of action. That is a matter that should be addressed in due course with respect to any application for tender, to reopen or to re-examine it being noted that Mr Russon has concluded his evidence and, accordingly, application for leave to recall him would be required. Clearly if material were admitted such leave must be given to avoid the preclusion of due process to Mr Russon.
I am conscious that the application for the inspection of this file is made by the independent children's lawyer. Whilst certainly the order for the appointment of the independent children's lawyer was made on 7 December 2010, I note that in reality that appointment has been in a very short time frame, particularly noting that the Christmas closedown period intervened. In reality the appointment was filled only some three weeks before this trial commenced.
Section 68L gives this court power to appointment an independent children's lawyer. Section 68LA sets out and defines the role of the independent children's lawyer. The Independent Children's Lawyer is entreated by sub.s(2) to:
“Form an independent view based on the evidence available to the independent children's lawyer of what is in the best interests of the child and to act in the proceedings in what the independent children's lawyer believes to be the best interests of the child.”
Subsection (3) requires that:
“The independent children's lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child make a submission to the court suggesting the adoption of that course of action.”
I take the view that this application is in furtherance of that obligation. The specific duties of the independent children's lawyer are set out in subsection (5) and they require that:
“An independent children's lawyer must act impartially in all dealings with the parties, ensure the view expressed by children are available to the court.”
That is, of course, the case as a report has been prepared pursuant to s.62G. Section 68LA(5)(c) provides that:
“…if a report or other document that relates to the child is to be used in the proceedings [the Independent Children’s Lawyer must] analyse the report…to identify those matters in the report…that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child”
Clearly, these documents do not specifically relate to [Y] but having regard to the evidence of the report writer, one would approach the evidence that is given with respect to [Y], even though it is asserted in Ms Knightley’s case that she no longer presses that as an allegation of unacceptable risk of harm in the future, from the perspective that the existence of a prior report and its investigation may, or could, be relevant.
As a consequence the application that is made by the independent children's lawyer is entirely appropriate.
The real test, in my mind, relates to the availability of information to the independent children’s lawyer to assist them in furtherance of the discharge of their duties.
As I have indicated, it is not yet clear or apparent what will be located within this file, if anything, that is relevant or of assistance to this case. If it is relevant, it may be of assistance in eliminating a line of inquiry or satisfying the independent children's lawyer and potentially, through evidence or submission, the court, as to whether there is or is not a risk of abuse. That is a matter that will be dealt with and determined at such time as any application is made to tender a document, re-examine a witness or lead any further evidence.
The appropriate standard to be applied in relation to this application or, indeed, any suggestion of harm to a child is governed by section 60CA. The Evidence Act 1995 does not stand in isolation. It is facilitative legislation. It codifies previous common law rules of evidence and it is designed to act in aid, not only of this jurisdiction, but all Commonwealth jurisdictions. To that extent, in my view, it must be read, interpreted and applied, having regard to the principles relating to the conduct of child-related proceedings to which I have referred and especially ss.69ZQ and 69ZN and also having regard to s.60CA.
Section 60CA provides the general overriding paramountcy principle in child-related proceedings and in which proceedings this application is made. It provides:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The paramountcy principle is repeated on a number of occasions through the legislation and I am satisfied that the paramountcy principle can, and indeed must, apply to all decisions this court makes, not just substantive parenting orders but also interlocutory and procedural orders as to how the proceedings are conducted and, indeed, the determination of issues as to the admissibility of evidence or the access or availability for inspection of material that may, or indeed may not, be at all relevant to the proceedings. So much would arise at least inferentially from ss.69ZN and 69ZX
To not make an order granting leave for the independent children's lawyer to inspect the file would have the very real potential to cause a number of difficulties. Firstly, it would have the potential to impede the performance by the independent children's lawyer of their duties. Independent Children's Lawyers are appointed to represent the interest of children and to assist this court in making the best determination that is possible.
The Independent Children’s Lawyer must assist the court by ensuring that available information is presented to the court and appropriately tested and submissions made as to the appropriate weight to attach to that evidence. Correspondingly, in my mind, there is an obligation upon the to provide such assistance as is possible to enable them to perform that duty purely to enable the task, which the court has appointed them to discharge, to be effectively and appropriately undertaken.
Secondly, the test that I am to apply ultimately in these proceedings is to weigh and balance all available evidence. Access to, and inspection of this file, will not, of itself, create evidence that will come before the court. That is a matter for each of the parties and the independent children's lawyer to introduce by tender. Ultimately, to decline access would, in my mind, create a grave difficulty in that clearly available information, which may be of assistance to the independent children's lawyer in forming the view that the Act compels them to form, an independent assessment of the evidence and a view based on readily available evidence, would be precluded.
I do not envisage that the legislators intended that the Evidence Act 1995, or Division 12A, would be applied in such a fashion. I hasten to add, however, that sight unseen, any material that was then sought to be tendered or the basis of any examination of any witness, would need to be addressed and it will be a separate issue dealt with on the voir dire. That would include any argument as to the weight to be attached to admitted material or, indeed, whether it should be excluded or its use limited pursuant to ss.135 and 136 of the Evidence Act 1995.
The difficulty that I think potentially arises, and which is correctly identified by counsel for Mr Russon, is that the probative value that may be attached to material that arises from a file some 18 years old and where, clearly, none of the deponents or preparers of any material that is likely to be on that file will be available for cross-examination, is limited. However, as has been pointed out by the High Court in M & M (1988) FLC 91-979 and subsequently and consistently by the Full Court in, for example, Johnson & Page [2007] FamCA 1235, it is not this court’s role to determine the truth or otherwise of any allegation of abuse.
I am not seized, in these proceedings, to make any finding on a civil, let alone criminal standard, as to my satisfaction as to whether abuse of any child has or has not occurred. My obligation is to determine the appropriate parenting arrangements for [Y] and to do so having regard to whether I am satisfied, (and I make it clear at this point, that the question of whether there is or is not an unacceptable risk of abuse will be dealt with through a strict application of the rules of evidence and not otherwise), as to whether this child is or may be exposed to any risk of sexual abuse or other harm whatsoever.
That is a separate and distinct issue from whether access is granted to a file which is now available and which may or may not contain information that is relevant or which may ultimately come before the court.
I am satisfied that access should be granted to the Independent Children’s Lawyer in accordance with their application and that to do so will not detract from any of the Court’s duties or responsibilities referred to above.
[Y]’s best interests requires that all available information be available and I accordingly so order.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Harman FM

Date: 30 August 2011