Salmani & Hasan
[2021] FedCFamC1F 29
•13 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Salmani & Hasan [2021] FedCFamC1F 29
Judgment of: HARPER J Date of judgment: 13 September 2021 Catchwords: FAMILY LAW – Public interest immunity – Variation of interlocutory order – Where disclosure to the confidential annexure had been limited to parties’ legal representatives, the Independent Children’s Lawyer, and NSW Crime Commission – Where mother seeks access to the confidential annexure in order to prepare affidavit evidence and consider grounds of appeal – Where mother had access to the judgment headnote and summary – Where the Independent Children’s Lawyer will adequately protect the interests of the children – Where open justice and procedural fairness to be weighed – Minor variation made to enable mother to receive advice on grounds of appeal – Claim otherwise denied. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Cases cited: Salmani & Hasan(No. 2) [2021] FamCA 623 Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 6 September 2021 Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Barkus Doolan Solicitor for the Respondent: One Group Legal Solicitor for the NSW Crime Commission: Crown Solicitor’s Office Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SALMANI
ApplicantAND: MR HASAN
RespondentNSW CRIME COMMISSION
IntervenerINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
13 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Further to Order 6 made on 25 August 2021, and as amended, the legal representatives of the mother, referred to in Order 5 made on 25 August 2021, are at liberty:
(a)to advise the mother of any opinion they form, or have formed, that there exist arguable grounds of appeal from the orders of the Court made on 25 August 2021, as amended; and the prospects of success of such grounds, but without disclosing any content of the Confidential Annexure dated 25 August 2021; and
(b)to seek instructions from the mother to file a Notice of Appeal, including any application for leave to appeal, from the orders of the Court made on 25 August 2021, as amended, in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and without disclosing to the mother the grounds of any proposed appeal.
2.The Application in a Case filed by the mother on 2 September 2021 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Salmani & Hasan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
These are parenting proceedings.
On 25 August 2021 in these proceedings, I delivered judgment (Salmani & Hasan [2021] FamCA 623) and made orders concerning a claim by the NSW Crime Commission of public interest immunity in relation to certain paragraphs of a psychologist's report concerning the father ("the primary judgment").
I upheld the claim of public interest immunity and made orders restricting access to a Confidential Annexure which contained my reasons. The use of the Confidential Annexure with restricted access was necessary, because access to the full reasons for judgment by the Applicant Mother (“the mother”) herself risked defeating the claim to public interest immunity and creating or exacerbating risk to the child who is the subject of the proceedings.
The necessary background appears in the Confidential Annexure and need not be repeated here.
Access to the confidential annexure was, ultimately, limited to legal practitioners of the parties and the Independent Children’s Lawyer (“the ICL”), the ICL herself and the NSW Crime Commission itself.
The mother was given access to a document comprised of a head note with catchwords and a summary of the judgment. This referred in general terms to the presence of risk.
It was provided in part to afford to the mother a level of procedural fairness consistent with the claim to public interest immunity, and to satisfy the dictates of open justice as far as possible in the context of these proceedings.
Order 6 provided as follows:
6. Pending further order, each person or entity referred to in Order 4 Order 5 is hereby restrained from:
(a) publishing or disclosing; or
(b) discussing,
the Reasons for Judgment, or any part thereof, in the Confidential Annexure, to or with any person or entity, including any person or entity by whom they are retained as representatives in the proceedings.
It can be seen that Order 6 was made “pending further order”. It is interlocutory and open to variation under Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
On 2 September 2021 the mother filed an Application in a Case seeking a range of relief. When the matter was heard on 6 September 2021, counsel for the mother made clear that she sought a variation of Order 6 to enable her lawyers to discuss the confidential reasons for judgment with her to enable her to give instructions about the preparation of her affidavit evidence for trial, and on the question whether there may be grounds to appeal from the primary judgment. The mother did not press an order seeking a stay, pending receiving this judgement.
The NSW Crime Commission and the ICL did not seek to be heard in relation to the mother’s application.
I accept that the mother is, understandably, concerned about risk. She has been placed in a difficult position.
However, balancing the competing interest is clearly difficult. It is clear from the primary judgment that the advancement of the administration of justice, by providing open justice and procedural fairness to the mother, was but one of several competing aspects of public interest which had to be weighed. Importantly, the conclusion that disclosure to the mother herself may create or exacerbate risk clearly weighed against disclosure to the mother as contrary to the best interests of the children, as did the need to protect the procedures of the NSW Crime Commission.
There is no final hearing date yet allocated in these proceedings. There is no impediment to the mother proceeding with the preparation of affidavit evidence, which does not deal with the matters the subject of the primary judgment and Confidential Annexure.
It is also important to remember that the interests of the children who are the subject of the proceedings will be protected by the ICL, who has access to the Confidential Annexure. Where there is a legitimate claim to public interest immunity, I see no need for the mother to duplicate this role in relation to the matters covered in the Confidential Annexure.
I am not persuaded that there should be any further order made, such as permitting the mother access to the primary judgment.
However, I accept there should be a small variation to Order 6 to permit discussion between the mother and her legal representatives for the limited purpose of those representatives giving the mother advice on grounds of appeal and prospects of success on appeal from the primary judgment.
Accordingly, I make the orders set out at the commencement of these reasons.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 13 September 2021
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