Sahadi & Savva and Anor
[2016] FamCAFC 65
•29 April 2016
FAMILY COURT OF AUSTRALIA
| SAHADI & SAVVA AND ANOR | [2016] FamCAFC 65 |
| FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where the appellant required leave to appeal against interlocutory orders – Whether leave to appeal should be granted – Application of test set out in Medlow & Medlow (2016) FLC 93-692 – Where the nature of the issues raised and their implications for the hearing of a serious criminal trial justify a grant of leave – Leave to appeal granted. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Release and use of expert report – Where the Police were granted leave to inspect and copy court file – Where Police applied to release expert report for use in criminal prosecution – Whether Police subject to implied obligation not to disclose the report – Waiver of an implied obligation – Where pursuant to r 15.10(3)(c) of the Federal Circuit Court Rules 2001 report released to the parties involved in the criminal proceedings and the Director of Public Prosecutions – Whether the best interests of the child were the paramount consideration – Appeal dismissed. |
| Director of Public Prosecutions Act 1986 (NSW) s 15A Family Law Regulations 1984 (Cth) reg 15A |
| Carr and Anor v Finance Corporation of Australia Limited (1981) 147 CLR 246 CDJ v VAJ (1998) 197 CLR 172 Commissioner of Taxation & Darling and Anor (2014) FLC 93-583 Gronow v Gronow (1979) 144 CLR 513 Hall v Nominal Defendant (1966) 117 CLR 423 Hearne and Anor v Street and Ors (2008) 235 CLR 125 House v The King (1936) 55 CLR 499 Licul and Ors v Corney (1976) 180 CLR 213 Medlow & Medlow (2016) FLC 93-692 Paringa Mining & Exploration Company PLC v North Flinders Mines Limited and Ors (1988) 165 CLR 452 R v Cook; Ex Parte Twigg (1980) 147 CLR 15 Sheill & McMurr(No 2) (2014) FLC 93-599 |
| APPELLANT: | Ms Sahadi |
| FIRST RESPONDENT: | Mr Savva |
SECOND RESPONDENT: | Commissioner of the New South Wales Police Force |
| FILE NUMBER: | SYC | 2338 | of | 2011 |
| APPEAL NUMBER: | EA | 31 | of | 2016 |
| DATE DELIVERED: | 29 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ryan & Aldridge JJ |
| HEARING DATE: | 22 April 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 March 2016 |
| LOWER COURT MNC: | [2016] FCCA 589 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lowe |
| SOLICITOR FOR THE APPELLANT: | Swifte Law |
| SOLICITOR FOR THE FIRST RESPONDENT: | Mr Massey of Barber and Massey |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms Gerace and Ms McGee |
Orders made on 22 April 2016
The Appellant have leave to make an oral application to amend the Notice of Appeal.
The Appellant has leave to further amend the Amended Notice of Appeal filed on 19 April 2016 to include an application for leave to appeal.
The Appellant be granted leave to appeal against Orders 3, 4 and 5 made on 18 March 2016.
The appeal be dismissed.
IT IS NOTED THAT
A. All parties agree that the effect of the Stay Order made by Judge Kemp on 8 April 2016 will cease at 1.00 pm today.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sahadi & Savva has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 31 of 2016
File Number: SYC 2338 of 2011
| Ms Sahadi |
Appellant
And
| Mr Savva |
First Respondent
And
| Commissioner of the New South Wales Police Force |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Ms Sahadi (“the mother”) and Mr Savva (“the father”) have each been charged with serious criminal offences – the father as a principal and the mother as an accessory before the fact. Their trial, and that of their co-accused, recently commenced in the Supreme Court of New South Wales.
The mother and the father have also been engaged in parenting proceedings in the Federal Circuit Court of Australia. After an order was made pursuant to r 15.09 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) for the preparation of an expert report, a report was prepared by Dr L on 14 November 2013 and released to the mother and father on 2 December 2013.
On 18 March 2016 Judge Kemp made orders giving the Commissioner of the New South Wales Police Force (“the Commissioner”) permission to provide, upon conditions, a redacted copy of the report to the mother, the father, their co-accused, the legal representatives of all the accused, the Director of Public Prosecutions and the presiding judge in the Supreme Court proceedings for the purposes of the criminal trial.
Because of the breadth of issues raised before us, it is useful to record at the outset that notwithstanding the manner in which the case proceeded below there was only one issue which required determination – namely, whether in the exercise of his discretion and pursuant to r 15.10(3)(c) of the FCC Rules, the primary judge should grant permission as sought by the Commissioner.
By an Amended Notice of Appeal filed on 19 April 2016 the mother appeals from the orders of the primary judge. At the outset of the hearing of the appeal, counsel for the mother applied for leave to amend the Notice of Appeal to seek leave to appeal. There being no opposition, leave was granted. The Commissioner opposed the mother’s appeal. The father’s solicitor appeared and made submissions supporting the appeal. At the conclusion of the oral submissions we made orders that granted leave to appeal to the mother and dismissed the appeal. We indicated that we would deliver our reasons for doing so in due course. These are the reasons for making those orders.
Background
As is the usual practice, the expert report was first provided to the Court and the Court made directions for its release. In releasing the report to the father and mother on 2 December 2013 Judge Kemp made the following orders:
This report is released by the Court pursuant to Rule 15.10 of the Federal Circuit Court Rules to:
(a)the parties
(b)the parties lawyers
(c)the child representative
The order also contained the following “Notice to Persons Receiving Copies of this Report”:
1.This Expert’s Report is released by the Court pursuant to rule 15.10 of the Federal Circuit Court Rules. It should be treated as confidential and should not be disclosed to persons other the [sic] legal representatives of the parties and the parties unless the Court directs.
2.Penalties may apply under Section 121 of the Family Law Act 1975 to the printing of [sic] publication of any material contained in this report other than for use in connection with the proceedings.
3.If a counsellor is required for cross-examination at least seven days notice in writing is expected. Otherwise an agreed convenient time for the counsellor to be available cannot be guaranteed.
The parties were charged with the criminal offences in 2014.
It appears that the New South Wales Police Force (“the Police”) first obtained a copy of the family report when they searched the father’s prison cell. He is currently serving a term of 15 years’ imprisonment for other offences.
This led to the Police approaching the Federal Circuit Court for leave to inspect the court file of the family law proceedings between the mother and the father. On 14 September 2015 Judge Brewster gave leave to the Police to inspect and copy that file:
The Court has approved [the Police] request. You may inspect and copy the file. Please contact Judge Kemp’s chambers on […] to make the appropriate arrangements.
(Reasons of Judge Kemp at [3])
Although expressed somewhat informally and without explicitly saying so, it would appear that in granting permission Judge Brewster relied upon r 2.08 of the FCC Rules which states:
(1)The following persons may search the court record relating to a family law or child support case, and inspect and copy a document forming part of the court record:
…
(c)with the permission of the Court, a person with a proper interest:
(i)in the case; or
(ii)in information obtainable from the court record in the case;
…
(2A)A permission:
(a)for paragraphs (1)(c) and (d) and (2)(b) — may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and
…
Note 1:Section 121 of the Family Law Act restricts the publication of court proceedings.
On 19 January 2016 the Police contacted the Federal Circuit Court and sought leave to serve the report of Dr L upon the Director of Public Prosecutions (“the Director”) and the accused standing trial in the criminal matter.
Section 15A(1) and (3) of the Director of Public Prosecutions Act 1986 (NSW) (“the DPP Act”) provides:
(1)Law enforcement officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
…
(3)Law enforcement officers investigating alleged indictable offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.
…
It was not contested that the Director was exercising functions under the DPP Act. Thus, although the Police were legally possessed of the report, the question was: were they subject to “any other legal obligation” to not disclose the document, including to the Director? The operation of r 15.10 of the FCC Rules and the order of 2 December 2013 were such “other legal obligations” and thus prevented disclosure. Hence the application to the Court for permission to release the report.
Pursuant to directions of the Federal Circuit Court, the mother and the father were notified of the request for permission from the Police. This request was treated as an application to release the report to the Director and others for use in relation to the criminal proceedings described earlier. The mother and father each objected to leave being granted for the purpose stated. Pursuant to further directions extensive written submissions were received from the mother, the father and the Commissioner. Oral submissions were heard by Judge Kemp on 10 March 2016. On that day the Commissioner was joined as an intervenor on the application for release of Dr L’s report.
Reasons for judgment
After setting out the written submissions of each of the parties, the primary judge accepted the Commissioner’s submission as to the relevance of the report to the investigation saying:
23.DS [M’s] affidavit, relevantly, deposes to the view of the NSW Police that the subject report contains information that is highly relevant to the investigation and prosecution of the father, the mother and the other persons identified by the NSW Police. The NSW Police assert in general terms that the subject report is relevant because it contains statements by each of the accused and opinions by Dr [L] about the nature of the accused’s relationship, each accused’s personality and character including their involvement in criminal activity, each accused’s credibility, fears held by the mother for her personal safety in respect of the father, the father’s access to firearms and the nature of the relationship between the father and [the mother’s brother], including threats made by the father to him. Some of these matters being relevant to the [serious criminal charges].
In an obvious reference to r 15.10(3) of the FCC Rules, at [34], the primary judge said:
34.The Court is of the view further that express authority may be granted to the NSW Police to use the subject report in its investigation and prosecution of the criminal conduct alleged and for its use in the criminal proceedings in the Supreme Court of New South Wales, given that the Court accepts that those matters involved serious criminal offences...
His Honour accepted that the investigation of criminal offences and their prosecution served to maintain the public interest in justice and that, as this was a proper purpose for the use and release of the report, there was a legitimate forensic purpose for the request made by the Commissioner.
Addressing an argument made by counsel for the father, the primary judge found that the report could be released notwithstanding it had not yet been admitted into evidence in the parenting proceedings or tested by
cross-examination.
His Honour then turned to the interests of the father and the mother in the report being kept private and confidential and said:
38.The privacy interests of the father and the mother and any confidentiality attached to the subject report or the participation in the process of its preparation can be protected by both the restraints against further use outside the criminal proceedings in the Supreme Court of New South Wales, by restraints imposed in terms of the process of the Supreme Court itself and by the redaction of information identifying the child and [named person].
Contrary to arguments made by counsel for the mother and counsel for the father, the primary judge found that it was not necessary for the Commissioner to demonstrate that each and every paragraph of the report had probative value in the Supreme Court trial before the release could be authorised. Consistently, his Honour also found that (other than the excision of certain parts which were irrelevant) it would not be appropriate to excise any other material from the report prior to its release as the report should be read in context and as a whole.
The primary judge discussed the interests of the child the subject of the proceedings and said:
42.The Court accepts that the best interests of the child are not the paramount consideration in the exercise of its discretion on this application.
43.The Court accepts that the release of the subject report is not detrimental to the interests of the child as there are no significant factors which relate directly to the welfare of the child. The mother has not given any particulars to evidence her asserted “serious and genuine” concerns for the child’s safety and welfare. The Court is of the view that the child’s name and birthdate should be redacted prior to any release. The Court notes in that regard, submission 8 in paragraph 29 above so far as the prohibition concerning the child in relation to the criminal proceedings.
44.The Court, further, accepts that the interests of the child in these proceedings, however, do not outweigh the public interest of ensuring that justice is done in the criminal proceedings in the Supreme Court of New South Wales.
His Honour accepted (wrongly, as we will shortly explain) the argument advanced by counsel for the mother and counsel for the father, that Commissioner of Taxation & Darling and Anor (2014) FLC 93-583 provided authority for the proposition that the leave granted by Judge Brewster did not amount to any waiver of an implied obligation not to use the document for a purpose unrelated to the conduct of the parenting proceedings (see Hearne and Anor v Street and Ors (2008) 235 CLR 125) and to which he was satisfied the Police were subject.
The primary judge was satisfied that the co-accused were also subject to an implied obligation to only use the report for the purpose of the Supreme Court proceedings. However, and for an abundance of caution, his Honour discussed whether additional conditions could be attached to the release of the report pursuant to r 2.08(3)(d) of the FCC Rules (right to inspect and copy). Satisfied they could be, his Honour ordered:
(1)The Commissioner New South Wales Police (“NSW Police”) be joined as an intervenor on an application for the release of the report of Dr [L] dated 14 November 2013 released to the father and the mother on 2 December 2013 (“the subject report”).
(2)The application of The Commissioner NSW Police for the release of the subject report is to be heard without the need for a formal application or response.
(3)The Commissioner NSW Police be granted leave to provide a copy of the subject report, redacted in terms of order 4 below, to the following persons solely for the purposes of the proceedings referred to in (h) below, and further subject to order 5 below:
(a) [Mr Savva] (“the father”) and/or his legal representative;
(b)[Ms Sahadi] (“the mother”) and/or her legal representative;
(c)[Mr S] (the mother’s brother) (“[Mr S]”) and/or his legal representative;
(d)[Mr Z] (“[Z]”) and/or his legal representative;
(e) [Mr Y] (“[Y]”) and/or his legal representative;
(f) [Mr X] (“[X]”) and/or his legal representative;
(g)The office of the Director of Public Prosecutions (“the DPP”); and
(h)The judicial officer presiding in the criminal proceedings involving the abovementioned persons listed for hearing in the Supreme Court of New South Wales commencing on … 2016 (“the Supreme Court proceedings”).
(4) The subject report be redacted by:
(a)deleting the identity and any identifying details of [named person] and that of her family; and
(b)deleting the name of the child of the father and the mother and the child’s birth date.
(5)The Commissioner NSW Police is to obtain prior to the provision of a copy of the subject report to the persons named in the above order 3(c)-(f) inclusive, the following:
(a)An undertaking in writing from such persons to this Court to be filed in the Registry not to release the contents of the subject report to any person, save a legal representative retained by that person in the Supreme Court proceedings, without further leave of this Court; or
(b)If no undertaking in writing is provided in terms of (a) above, then, in terms of The Commissioner’s undertaking to this Court, the making of an application to the Supreme Court of NSW, to obtain from that Court an order directed to any such person not to publish the contents of the subject report and for its use only in the Supreme Court proceedings.
Although, ultimately, nothing turns on it, r 2.08(3)(d) had nothing to do with the case at hand and the question of release and conditions was to be addressed by a different rule.
Is leave required?
The Commissioner submits that the orders made by the primary judge are interlocutory and that leave to appeal is required (s 94AA of the Family Law Act 1975 (Cth) (“the Act”); reg 15A Family Law Regulations 1984 (Cth)). It is submitted that the orders are interlocutory because Order 5 permits the Commissioner to return to the Federal Circuit Court for further leave, if necessary.
The mother accepted that leave was required.
The test as to whether an order is interlocutory or final is well known. In Hall v Nominal Defendant (1966) 117 CLR 423, Taylor J said at 440–441 (with Owen J concurring):
… The order in the present case was made in proceedings preliminary to the bringing of an action and although it deprived the appellant of the benefit of the order of the learned judge of first instance, it did not operate to prevent him from making a further application for an extension of time. No doubt its practical effect was that any further application would have been fruitless unless supported by additional relevant facts but the order made by the Full Court did not of its own force conclude his right to bring an action.
In Licul and Ors v Corney (1976) 180 CLR 213 Barwick CJ posed the test at 219 as:
… To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties …
Gibbs J said at 225:
… The other view which, since Hall v Nominal Defendant […], should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? …
(Citation omitted)
In Carr and Anor v Finance Corporation of Australia Limited (1981) 147 CLR 246 both Gibbs CJ at 248 and Mason J at 256–257 rejected the proposition that one looks to the practical effect of the order as opposed to its legal effect.
Although the test is well known, the application of it to particulars orders can often be difficult, as the extensive discussion of authorities in Sheill & McMurr(No 2) (2014) FLC 93-451 makes plain (at [41]–[52]). There may be a different outcome if the order under appeal is an interlocutory order going to matters of practice and procedure or an order which determines substantive rights (Paringa Mining & Exploration Company PLC v North Flinders Mines Limited and Ors (1988) 165 CLR 452 at 459 per Mason CJ, Brennan and Gaudron JJ).
The grant of leave to the Commissioner was an order permitting a particular use of the report. That order could be modified or varied in appropriate circumstances. The leave could be revoked.
As it was accepted by the parties that leave is necessary, we are satisfied that we should treat the orders of the primary judge as not finally determining the rights of parties and the order appealed from is interlocutory. This is consistent with the approach of the Full Court in Darling.
The test for leave was set out in Medlow & Medlow (2016) FLC 93-692 at [57]:
57.We are of the opinion that, subject to the caveat just discussed, the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
However, as Medlow also points out (at [55]), the discretion given by s 94AA is broad and the stated test will give way to the interests of justice in particular cases.
In this case, the nature of the issues raised and the implications for the hearing of a trial of serious criminal charges justify a grant of leave.
The appeal
Before turning to the grounds of appeal we wish to make the following observations. The Police sought and obtained an order from a Federal Circuit Court judge to inspect and copy the file. In order to do so that judge was satisfied that the Police had a proper purpose for inspecting and copying.
In Commissioner of Taxation & Darling and Anor the court considered the then r 24.13 of the Family Law Rules 2004 (“the rules”) which was in similar form to r 2.08 of the FCC Rules. Speaking of the position where a judge, as opposed to an administrative member of staff made an order for the inspection and copying of the court file, the Court said at 79,177:
112.… we would have accepted the Commissioner’s submission that an unconditional grant of leave to inspect and copy given by a judge would carry with it a release from the implied obligation. This is because r 24.13(3)(d) requires the Court, when considering an application, to consider whether “any limits or conditions … should be imposed on access to, or use of, the court record” and r 24.13(2A) provides that conditions may be attached to a grant of permission. …
The order made by Judge Brewster imposed no conditions on the inspection and copying of the file and consistently with the above passage we do not see why the Police, having been granted unconditional leave to copy the file, would remain bound by the implied obligation. It would be able to use the documents for the proper purpose that had been found by the court.
That, however, is not the end of the matter.
The Police, by inspecting the file, were made aware of the orders restricting the distribution and use of the report. Although the Police were not parties to the proceedings, having become aware of the order they were bound to respect and abide by it.
As has already been said the report was obtained from an expert appointed under r 15.09. Rule 15.10(3) of the FCC Rules provides:
(1)The court expert must give the report to the Registrar together with the number of copies the Registrar directs.
(2) The Registrar must send a copy of the report to each party.
(3) The Court may:
(a) receive the report in evidence; or
(b) allow the examination of the court expert; or
(c) give other directions as to the use of the report.
Thus, properly understood, the application of the Police was not an application to be released from any implied undertaking but rather was an application for permission under r 15.10(3)(c) for the use of the report, or in other words, a variation of the order releasing the report made on 2 December 2013.
Grounds of appeal
The Amended Notice of Appeal raised four challenges to the judgment which assert that the primary judge erred:
· In determining that the best interests of the child were not the paramount consideration in the exercise of discretion whether to grant leave to release the report.
· By failing to consider the issue of whether the information contained in the family report involved communications subject of the obligation of confidentiality prior to determining whether the report should be released for use in collateral proceedings.
· In holding that the family report need not be subject to testing by cross-examination prior to any release being considered.
· In determining that the whole of the contents of the family report be disclosed subject to redaction so that relevant individuals could not be identified.
At the commencement of the oral submissions, counsel for the mother confirmed that the mother sought to set aside Orders 3 – 5 as made by the primary judge.
As we mentioned earlier the arguments on appeal can be distilled to one proposition; namely did the primary judge in the exercise of his discretion err by granting leave to the Commissioner pursuant to r 15.10(3)(c)? In this regard it needs to be remembered that this appeal is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499.
Ground 1: The best interests of the child
As this ground suggests the mother submits that the primary judge erred because he failed to find that the best interests of the child were the paramount consideration in determining whether or not to release the report. We need say nothing more than before us counsel for the mother properly conceded that the order was not made under Part VII of the Act and therefore was not a parenting order (s 64B), and the paramountcy principle (s 60CA) does not apply.
Counsel for the mother, having resiled from the assertion that the paramountcy principle applied, then argued that the best interests of the child were relevant although not determinative and that the primary judge erred by giving insufficient weight to the child’s interests.
We accept, as did the primary judge, at [43]–[44], that the best interests of the subject child remained a relevant consideration. As Kirby J said in CDJ v VAJ (1998) 197 CLR 172 at 239, ancillary decisions will necessarily be made in the shadow of the paramountcy principle. It was accepted by the mother that at [43]–[44] the primary judge correctly identified the state of the evidence as to the asserted risk to the child’s safety; namely there were no particulars to evidence such risk. No challenge is made to this finding.
In oral submissions counsel for the mother argued that the orders should not have allowed the report to be released to the co-accused. The basis of this submission is that those persons might disseminate the report or part of it to the public. This submission was made despite the requirements for undertakings in accordance with Order 5(a).
It is to be recalled that the primary judge found that the Police had a legitimate forensic purpose in seeking leave to use the report and that any use of it was to be in relation to serious criminal offences. His Honour explained he was satisfied the release of the report would not be detrimental to the child and weighed the child’s interests against the public interest in ensuring that justice is done in the criminal proceedings.
Whilst his Honour did not expressly consider the submission that family and experts’ reports in parenting cases should never be disclosed because disclosure had the potential to compromise the willingness of parties the subject of the reports fully to disclose matters (including the criminal acts of others), or authors of the report frankly to reveal the allegations that might be made, there is no error. As appears from r 15.10(2) this is because, first, unless the Court orders otherwise an expert report “must” be released to the parties involved in the same proceedings. The provisions governing the release of a family report are contained in r 23.01A(5) of the FCC Rules and although release to the parties is discretionary procedural fairness dictates that such reports are almost always released to the parties. Thus any aspect of confidentiality will be lost. Secondly, the reports are provided to the court and may be received in evidence.
It follows therefore that the approach of the primary judge has not been found to be in error and this challenge does not succeed.
Ground 2: Confidentiality
There is some overlap between the matters raised by this ground and the ground just discussed. As originally framed it was the mother’s contention that the “subject matter” of the report “remains confidential to the parties who have confided with the expert witness”. It was submitted this was because:
There was a duty of confidence as between the writer of the report and the parties to the litigation. The obligation of confidence arose not just because of contract, each party having contributed to the cost of the preparation of the report, but existed at common law.
(Appellant’s summary of argument, at [29])
We will first focus on the submission developed during oral addresses – namely, that there are important differences between the obligations imposed on family consultants as compared to expert report writers. The essential point being whereas the provisions governing family consultants establish mandatory reporting obligations on family consultants and for the release of family reports to other agencies, no similar obligations are imposed on expert report writers. It follows the scheme of legislation and subordinate legislation recognises that expert report writers are subject to an obligation of confidence not imposed on family consultants.
In parenting cases family reports may be obtained from family consultants or expert reports from single experts appointed by the court. Different provisions govern how these reports are obtained and their release. Section 62G(2) of the Act deals with family reports and provides that the court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable. For the purpose of the preparation of that report the court may make other orders that are appropriate including directions that one or more of the parties attend on the consultant (s 62G(5)). We observe that any obligation to attend does not carry with it an obligation to reveal facts, information or beliefs that a person does not wish to disclose. (See R v Cook; Ex Parte Twigg (1980) 147 CLR 15, per Gibbs J at 23 in relation to an earlier version of s 62). The same observations would apply equally to attendances on and disclosure to an expert.
Evidence of anything said or any admission made by or in the company of a family consultant performing the functions of a family consultant is admissible in proceedings under the Act (s 11C(1)). We have already referred to r 23.01A(5) of the FCC Rules, which sets out the use the court may make of the family report but highlight that the rule proceeds on the basis that the report “may” be released to the parties.
However, the fact that the court may order a family report, that the parties could be compelled to attend upon the family consultant for the purpose of preparing such a report and that the report is for the benefit of the court are powerful indicators that there is no obligation of confidence as between a party to the parenting proceedings and the family consultant. Importantly, the submission assumes that the parents are jointly owed an obligation of confidence, yet commonly, the very person against whom confidentiality is likely to be asserted is the other parent. Yet, that other parent is a person likely to receive a copy of the report. This position is reinforced by the mandatory disclosure obligations contained in s 67ZA of the Act which require a family consultant (and others but not a court appointed expert) to notify a prescribed child welfare authority if it is suspected a child has been abused or is at risk of abuse.
In the present case however Dr L was not a family consultant. He was an expert appointed by the court. Under r 15.09 of the FCC Rules the court, at the request of a party or of its own motion, may appoint an expert as a court expert to enquire into and report on a question arising in the proceedings. Unless the court otherwise directs the parties are jointly liable to pay for the reasonable remuneration and expenses of the “expert” (r 15.11).
As accepted by the mother, in preparing the report the expert witness is to be guided by the Federal Court Practice Direction Guidelines for Expert Witnesses (r 15.07). The Federal Court Practice Note as to expert witnesses provides:
General Duty to the Court
1.1An expert witness has an overriding duty to assist the court on matters relevant to the expert’s area of expertise.
1.2An expert witness is not an advocate for a party even when giving testimony that is necessarily evaluative rather than inferential.
1.3An expert witness’ paramount duty is to the court and not the person retaining the expert.
This duty speaks powerfully against the report being confidential as between the parents and the report writer.
According to the guidelines the expert’s report must set out separately each of the factual findings or assumptions upon which the expert’s opinion is based (Guideline 2.1(e)).
Guideline 2.2 provides:
At the end of the report the expert should declare that [the expert] has made all the enquiries that [the expert] believes are desirable and appropriate and that no matters of significance that [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the court.
(Original emphasis)
Thus the expert report writer is obliged to disclose to the court all matters of significance that are relevant. That writer cannot therefore be bound by an obligation of confidence owed to the parties.
The very point of a family consultant’s report or an expert’s report relating to the parenting of children is that the report is obtained by the court for the benefit of the court. In those circumstances it is impossible to see how the court is bound by an obligation of confidence arising between the parties and the expert not to disclose the expert’s report. Indeed, and as we mentioned earlier r 15.10(2) proceeds on the basis that the Court “must” send a copy of an expert’s report to each party. It follows that the lack of a provision in relation to expert report writers the equivalent of s 11C(1), is irrelevant. Nor are we persuaded that the fact that s 67ZA does not impose mandatory reporting obligations on expert report writers reveals an intention that their work is confidential. It will be recalled that r 15.10(1) of the FCC Rules requires an expert to provide the report to “the Registrar”. Section 67ZA obligations are also imposed on registrars and the obligations to notify will therefore operate in relation to the report.
This ground does not succeed.
Ground 3: Lack of cross-examination
The mother submits that the report should not be released because it had not been tested. It was submitted that:
… the factual matters covered by a family report remain contestable as between parties to the family parenting proceedings until resolved by evidence on the issue. In order for objection to any portion of that report on evidentiary grounds it would be necessary for the author of that report to be required to face cross-examination on the contents of the report.
(Appellant’s summary of argument, at [37])
The question of the admissibility of the report, to the extent that it is to be tendered in the criminal proceedings is a matter for the Supreme Court of New South Wales. There is no reason why any contested issues of fact, to the extent that there are any, cannot be resolved in that court.
More importantly the submission overlooks the fact that the report may well not be tendered in the Supreme Court proceedings. The information contained in the report, rather than the report itself, may be used in relation to the proceedings without becoming evidence in them.
As the Commissioner correctly submitted the release of the report might lead to further investigation including an investigation as to the reliability of what is contained in the report. As the Court pointed out in Commissioner of Taxation & Darling and Anor at [180] it is only after the collection and evaluation of evidence that decisions can be made as to the use of the released material.
This ground does not succeed.
Ground 4: Redaction
The mother submitted that only the probative parts of the report should be released and the balance should be redacted.
The primary judge said:
39.The Court does not accept that each and every paragraph of the subject report has to be shown to have probative value in the Supreme Court proceedings before its release could be authorised. Further, the Court accepts that it would not be appropriate to seek to excise from the subject report paragraphs (without some specific reason to do so), as the subject report should be read in its entirety and, ultimately, its reception would be the subject of any rulings as to admissibility in the Supreme Court, in any event. The Supreme Court at the relevant point in time could consider the issue of the provision of any Certificates under s.128 of the Evidence Act. Neither Mr Dura nor Mr Massey sought to identify any particular paragraph in the subject report which could be so redacted, in any event.
A difficulty with the mother’s submission is that the mother did not identify those parts of the report that should be redacted. Importantly, she advanced no submissions as to how the task of identifying what material was probative might be undertaken prior to the Director investigating and evaluating the report.
The unchallenged evidence of the Commissioner explained why the whole of the report was relevant to the investigation and prosecution of the charges against the mother, the father and the co-accused. The primary judge was therefore entitled to accept that evidence and to make the finding set out earlier.
Finally, we accept the Commissioner’s submission that if an issue arises as to the admissibility of any part of the report in the criminal trial that issue will be determined by the Supreme Court of New South Wales.
The judge clearly took into account the submissions and evidence on this issue. The orders, which include carefully crafted conditions imposed upon the release of the report to the persons mentioned in the order bespeaks a very careful exercise of discretion.
Accordingly the submission is not accepted.
Conclusion
For these reasons we made the orders described earlier.
We note that the Commissioner did not seek an order for costs because the application to the Federal Circuit Court and this appeal were regarded as part of an investigative process.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan & Aldridge JJ) delivered on 29 April 2016.
Associate:
Date: 29 April 2016
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