Salmani & Hasan (No. 2)

[2021] FamCA 623

FAMILY COURT OF AUSTRALIA

Salmani & Hasan (No. 2) [2021] FamCA 623

Judgment of:

HARPER J

Date of judgment:

25 August 2021

Catchwords:

FAMILY LAW – Subpoena material – Where mother and the Independent Children’s Lawyer seek access to unredacted sections of a medical report about father – Where there is a claim to public interest immunity in relation to the report made by an intervener – Where only the Court has access to a confidential affidavit – Where Court received confidential submissions – Where parties were unable to make submissions about the claim to public interest immunity – Where Court has power to determine matters arising out of child related proceedings – Where best interests of child remains the paramount consideration – Where avoiding impairment of the administration of justice has a stronger claim in parenting proceedings than ordinary civil litigation – Where disclosure of unredacted report would place father and therefore place the children at risk of harm – Claim upheld.

Legislation:

Evidence Act 1995 (Cth) s 130

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 69ZP(a), 69ZR(1)

Cases cited:

Air Canada v. Secretary of State for Trade (1983) 2 AC 394

Alister v R (1983-84) 154 CLR 404

Blaze & Anor & Grady & Anor (2015) 54 Fam LR 172

Burmah Oil Co. Ltd. v. Bank of England (1980) AC 1090

BUSB v The Queen (2011) 80 NSWLR 170

CDJ v VAJ (1998) 197 CLR 172

Commissioner of Police, New South Wales v Guo [2016] FCAFC 62

Commonwealth v Northern Land Council and Another (1993) 176 CLR 604 (NLC)

Fitzwater & Fitzwater (2019) 60 Fam LR 212

Roberts-Smith v Fairfax Media Publications Pty Limited (No 14) [2021] FCA 552

Vallans & Vallans (2019) 60 Fam LR 193

Young v Quin (1985) 4 FCR 483

Number of paragraphs:

42

Date of hearing:

28 July 2021

Place:

Sydney

Counsel for the Applicant:

Mr Dura

Solicitor for the Applicant:

Barkus Doolan

Counsel for the Respondent:

Mr Lloyd SC

Counsel for the Respondent:

One Group Legal

Solicitor for the Intervener:

Crown Solicitor

Independent Children's Lawyer:

Legal Aid

ORDERS

AMENDED on 25, 26 and 27 August 2021 and 6 September 2021 pursuant to r 17.02 of the Family Law Rules 2004 (Cth) and r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

BETWEEN:

MS SALMANI

Applicant

AND:

MR HASAN

Respondent

NSW CRIME COMMISSION

Intervener

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARPER J
DATE OF ORDER:	25 AUGUST 2021

THE COURT ORDERS THAT:

1.Leave to inspect the unredacted version of the report of Dr DD dated 9 December 2018, produced on subpoena on 25 May 2020, is refused.

2.The Reasons for Judgment given in support of these orders are to be contained in a Confidential Annexure which may only be accessed in accordance with these orders.

3.Save as specified in these orders, no part of the Reasons for Judgment in the Confidential Annexure, is to be published or disclosed to any person or entity.

4.A copy of the Confidential Annexure is to be retained on the Court file sealed in an envelope marked “Confidential Reasons for Judgment dated 25 August 2021”.

5.Access to the Reasons for Judgment in the Confidential Annexure is granted to only the following persons or entities:

(a)any legal representative of the NSW Crime Commission on the record in these proceedings and the NSW Crime Commission;

(b)any legal representative of the mother on the record from time to time, and including any counsel retained in these proceedings; and

(c)any Independent Children’s Lawyer appointed in the proceedings during the currency of their appointment and such other legal representative of the Independent Children’s Lawyer as may be retained by the Independent Children’s Lawyer and during the currency of their retainer.

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.

6A. For The avoidance of doubt Order 6 does not prohibit the legal practitioners for the parties, the Independent Children’s Lawyer, and any legal practitioner retained by the Independent Children’s Lawyer, and the NSW Crime Commission and any legal practitioners retained by the NSW Crime Commission for the purposes of the proceedings from discussing the reasons for judgment contained in the Confidential Annexure among themselves for the purposes of the proceedings.

7.The parties entitled to access the Confidential Annexure are directed to make arrangements through the chambers of Justice Harper to receive a copy.

8.The Registry of this Court is directed to seal all copies of the report of Dr DD dated 9 December 2018 in an envelope marked “Access for Inspection refused – not to be opened except by specific order of a Judge of the Family Court of Australia”

9.There be no order as to costs of the NSW Crime Commission’s application based on a claim to public interest immunity.

10.The proceedings be listed before another judge of the Family Court of Australia as soon as practicable.

THE COURT NOTES THAT:

A.The final hearing of the issues in the proceedings cannot be heard by the Honourable Justice Harper.

B.It is recommended that the final hearing be conducted by a Judge of the Family Court other than a judge in the Sydney Registry.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Summary of 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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment summary by this Court under the pseudonym Salmani & Hasan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

SUMMARY FOR PUBLICATION

1. This Summary does not form part of the Reasons for Judgment delivered on 25 August, 2021. The Reasons for Judgment are contained in a separate Confidential Annexure, access to which is limited in accordance with the orders of the Court. The summary is provided in the interests of balancing the need for open justice and the need to uphold the claim to public interest immunity made by the NSW Crime Commission. The Commission seeks an order that no other parties have access to an unredacted copy of Dr DD dated 9 December 2018. The Court is satisfied the evidence demonstrates that there is a need to protect methodologies and procedures of the Commission. This need must be balanced against the dictates of advancing the administration of justice by allowing the mother and the Independent Children Lawyer unfettered access to the suppressed section of the report. However, the Court is also satisfied denying unfettered access to that section is consistent with the best interests of the children the subject of the proceedings. There is also a public interest in advancing the administration of justice by the Court giving weight to the statutory requirement to uphold the best interests of the children as the paramount consideration in parenting proceedings.

2. After carrying out the necessary balancing process in resolving the competition among the competing aspects of public interest, the best interests of the children and the protection of the methodologies and procedures of the Commission outweighed the advancement of the administration of justice by giving access to the mother. Consequently, leave to inspect the unredacted version of the report of Dr DD dated 9 December 2018 has been generally refused.

3. The Court has taken the further step of restricting access to or publication of the confidential Reasons for Judgment because unrestricted access or publication could have the effect of defeating the Commission’s claim of public interest immunity which is otherwise upheld.

4. There is a further question of access to the confidential Reasons for Judgment. The Court is satisfied that the mother’s legal representatives and the independent children’s lawyer should be permitted access the Reasons for Judgment for reasons of procedural fairness, but subject to non-publication and non-disclosure orders. The purpose of such orders is to avoid defeat of the claim to public interest immunity which the Reasons for Judgment otherwise uphold.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Summary for Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated: 25 August 2021

.

CONFIDENTIAL ANNEXURE
REASONS FOR JUDGMENT
[Redacted]