Secretary of the Department of Communities and Justice & X (No. 3)
[2021] FamCA 354
•7 June 2021
FAMILY COURT OF AUSTRALIA
Secretary of the Department of Communities and Justice & X (No. 3) [2021] FamCA 354
File number(s): By Court Order the file number is suppressed. Judgment of: ALDRIDGE J Date of judgment: 7 June 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Suppression and non-publication orders – Final orders – Where the suppression and non-publication orders are necessary for the protection of the children’s safety – Where the orders are proportionate to the risks faced by the children and are justified in all of the circumstances – Where suppression and non-publication orders were already in place and have been modified and ordered to continue until a set date. Legislation: Family Law Act 1975 (Cth) s 102PE
Statutory Declarations Act1959 (Cth) s 8
Family Law Regulations 1984 (Cth) reg 13
Cases cited: Secretary of the Department of Communities and Justice & X and Ors [2019] FamCA 521
Secretary of the Department of Communities and Justice & X and Ors [2020] FamCA 186
Secretary of the Department of Communities and Justice & X and Ors (No. 2) [2020] FamCA 534
Division: General Division Number of paragraphs: 25 Date of hearing: 6 May 2021 Representation By Court Order the names of the legal representatives have been suppressed. ORDERS
BETWEEN: SECRETARY OF THE DEPARTMENT OF COMMUNITIES AND JUSTICE
Applicant
AND: X
First Respondent
Y
Second Respondent
Z
Third Respondent
NEWS CORP AUSTRALIA (INCLUDING NATIONWIDE NEWS PTY LTD)
First Intervener
NINE NETWORK AUSTRALIA PTY LTD
Second Intervener
FAIRFAX MEDIA PUBLICATIONS PTY LTD
Third Intervener
SPECIAL BROADCASTING SERVICE CORPORATION
Fourth Intervener
AUSTRALIAN BROADCASTING CORPORATION
Fifth Intervener
ORDER MADE BY:
ALDRIDGE J
ORDERS MADE ON 6 MAY 2021 BY CONSENT:
Parenting orders
[Redacted]
IT IS FURTHER ORDERED THAT:
Non-publication and suppression orders
1.Until [redacted], pursuant to s 102PE of the Family Law Act 1975 (Cth) and the implied jurisdiction of the Court, publication or disclosure of the information set out at Orders 6(b) to 6(e) herein be prohibited, subject to Orders 8 to 13, on the ground that such suppression and non-publication is necessary to protect the safety of the persons listed in Order 6(a) below.
(a)This Order is made for the protection of :
[Redacted]
(ix) Any witness in these proceedings,
(x) Any person, organisation or staff member of such an organisation, currently or previously providing professional services to the children and/or the respondents, including but not limited to case workers, support workers, health and medical professionals, education professionals, religious or extra-curricular activity providers.
(b)It is prohibited to publish or disclose any information tending to reveal the location of the following persons:
[Redacted]
(ix) Any person, organisation or staff member of such an organisation, as a person or organisation currently or previously providing professional services to the children and/or respondents at the time of disclosure or publication, including but not limited to case workers, support workers, health and medical professionals, education professionals, religious or extra-curricular activity providers, and any other persons or organisations currently or previously providing a professional service, or their staff, to the children and/or the respondents,
(c)It is prohibited to publish or disclose any information tending to reveal the identity, including any present or future alias, of the following persons:
[Redacted]
(xi) Any witness as a witness in these proceedings,
(x) Any person, organisation or staff member of such an organisation, as a person or organisation currently or previously providing professional services to the children and/or respondents at the time of disclosure or publication, including but not limited to case workers, support workers, health and medical professionals, education professionals, religious or extra-curricular activity providers, and any other persons or organisations currently or previously providing a professional service, or their staff, to the children and/or the respondents,
(d)Subject to Order 11 herein, it is prohibited to publish or disclose an image of the following persons:
[Redacted]
(e)It is prohibited to publish any detail from within the court file, from any application or evidence given or read in the proceedings or information disclosed during proceedings in court, that either identifies, or tends to identify, the persons named in Order 6(c) above.
2.Until [redacted], pursuant to s 102PE of the Family Law Act 1975 (Cth) and the implied jurisdiction of the Court, publication or disclosure of information that relates to the proceedings and is:
(a)information that comprises evidence or information about evidence in the proceedings; or
(b)information obtained by the process of discovery in the proceedings; or
(c)information produced under a subpoena; or
(d)information lodged with or filed in the court in the proceedings,
be prohibited, on the ground that such suppression and non-publication is necessary to protect the safety of the persons listed in Order 6(a) above.
3.That nothing in Orders 6 to 7 of these Orders prevents the Secretary or his delegate, the respondents, [redacted], from disclosing necessary information about the persons listed in Order 6(c)(i) to (x) to persons or organisations currently or previously providing or intending to provide professional services to the respondents, [redacted].
In this Order “professional services” includes, but is not limited to, services provided by case workers, support workers, health and medical professionals, banking institutions, education professionals, community venues such as religious or extra-curricular activity providers, law enforcement agencies, housing or accommodation agencies, agencies of the NSW and Commonwealth governments and any other persons or organisations or their staff currently, previously or intending to provide professional services to the children and/or the respondents.
In this Order “professional services” does not include the provision of services by any publisher of newspapers, television, books or other media, or any journalist, writer or photographer.
4.That nothing in Orders 6 to 7 prohibits [redacted] from disclosing [redacted] identity or location, to the extent required:
(a)To enrol [redacted] or one of the named children in any school, educational organisation, sporting or other extracurricular activity (including by the provision of a photograph if required);
(b)To open, register or use any account on a social media or other internet based platform provided that any such account is set so that the persons named in Order 6(c)(i) to (x) cannot be “tagged” or otherwise identified or labelled by any person in any photographs;
(c)To register to access any goods or services, such as registering for telephone or internet providers, completing onsite sign-in requirements, or activities; or
(d)To enrol [redacted] or the children in any program; or
(e)As otherwise required by law.
PROVIDED THAT there be no publication or disclosure which identifies those persons as relatives of [redacted] or any of the persons named in Order 6(c)(i) to (x).
It is NOTED that this Order has the effect that the [redacted] may disclose [redacted] identity if required for the purposes set out in Order 9(a) to (e), including for example providing her identity to government agencies for the purposes of obtaining official documentation or certification such as passports, driver licences, Police Checks, Working With Children Check Clearances or for the purposes of other official registration processes as required by government agencies.
5.That nothing in Orders 6 to 7 prohibits any person from disclosing any new alias used by the persons in Order 6(c)(i) to (ix) above, PROVIDED THAT there be no disclosure or publication which identifies those persons by reference to their original identities as listed in those Orders, or otherwise identifies them in any way as the relatives of [redacted], UNLESS such disclosure is made by the Secretary or his delegate, the respondents, [redacted] AND THEN ONLY to the extent required by law.
It is NOTED that this Order has the effect that:
(A) any person may disclose the new aliases of the persons listed in Order 6(c)(i) to (ix) PROVIDED THAT the disclosure/publication does not in any way disclose a link to their original identities. For example, this Order permits disclosures:
(a)To enrol themselves or the children in any school, sporting or other extracurricular activity (including by the provision of a photograph if required);
(b)To open, register or use any account on a social media or other internet based platform provided that any such account is set so that the persons named in Order 6(c)(i) to (ix) cannot be “tagged” or otherwise identified or labelled in any photographs by any person;
(c)To register to access any goods or services, such as registering for telephone or internet providers, completing onsite sign-in requirements, or activities; or
(d)To enrol themselves or the children in any program;
and
(B) the Secretary or his delegate, the respondents, [redacted] may also disclose their original identities IF the law requires them to do so, for example by providing their original birth certificates to government agencies for the purposes of obtaining official documentation or certification such as passports, licences, Police Checks, Working With Children Check Clearances or other official registration processes required by government agencies.
6.That nothing in Orders 6 to 7 prohibits any person from disclosing the name or location of [redacted] PROVIDED THAT there be no disclosure or publication which identifies [redacted] in any way as the relative of [redacted], UNLESS such disclosure is made by the Secretary or his delegate, the respondents, [redacted] AND THEN ONLY to the extent required by law.
It is NOTED that this Order has the effect that:
(A) any person may disclose [redacted]’s name and location PROVIDED THAT the disclosure/publication does not in any way disclose a link to the identities of [redacted]. For example, this Order permits disclosures:
(a)To enrol [redacted] in any school, sporting or other extracurricular activity (including by the provision of a photograph if required);
(b)To open, register or use any account on a social media or other internet based platform provided that any such account is set so that none of the persons named in Order 6(c)(i) to (x) can be “tagged” or otherwise identified or labelled in any photographs by any person;
(c)To register to access any goods or services, such as registering for telephone or internet providers, completing onsite sign-in requirements, or activities; or
(d)To enrol [redacted] in any program.
7.That nothing in Orders 6 to 7 of these Orders prevents the respondents, [redacted]:
(a)taking or permitting photographs to be taken of themselves, including school photographs or other photographs of extracurricular activities, or
(b)giving such photographs to friends and family members,
PROVIDED THAT:
(c)the respondents shall do all things necessary to ensure that they, [redacted] and any of the children are not tagged or identified in any photographs posted on any social media platform, and;
(d)the respondents shall use their best endeavours to ensure that neither themselves, [redacted] or any of the children register for any social media platform unless it permits the subject of a photograph to set privacy settings which prevent them from being tagged or publicly identified,
AND IT IS PROHIBITED FOR:
(e)the respondents to provide any photograph to any third party showing [redacted] with any of the respondents, [redacted], or to make such photograph available on any social media platform or other site open to viewing by the public, and;
(f)any of the respondents, [redacted] to permit the taking or provision of such a photograph for publicity or commercial gain.
8.That nothing in Orders 6 to 7 of these Orders prevents [redacted] from disclosing information about [redacted] identity or location for the purposes of obtaining employment, receiving remuneration for goods or services provided, or engaging in self-employment provided this does not include directly, indirectly or, with third parties writing a book, memoir, or making a film, play, or documentary or creating a work of art in any way referable to any of the parties or persons the subject of these Orders.
It is NOTED that no such exemption is given to [redacted], each of whom has either assumed a new alias or is otherwise dealt with by Orders 10 and 11 herein.
9.That nothing in Orders 6 to 7 of these Orders prevents a disclosure about the respondents, [redacted] by or to a person acting in the course of their employment by a Commonwealth or State law enforcement agency (including Corrective Services NSW).
Family Law Watchlist orders
10.That Order 7 and 8 of the Orders made by consent on 17 December 2019 be discharged.
11.AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by removing the name of [redacted] from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
12.Subject to Order 19 below, that until further order, the applicant, first respondent, X, second respondent, Y, and third respondent, Z, their servants or agents are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [redacted], either in the company of an adult or as an unaccompanied minor, from the Commonwealth of Australia, until each child attains 18 years of age.
13.AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the children, [redacted] on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, until the said child attains 18 years of age, or with consent of all parties.
14.Removal of one or more of the said children from the Commonwealth of Australia pursuant to Order 17 is permitted by way of authenticated consent completed for each child on each occasion of travel, in the form set out in Annexure “A” hereto, signed by all of the following:
(a)the Deputy Secretary, Child Protection and Permanency, District and Youth Justice Services (or equivalent position in the event of any changes to machinery of government), Department of Communities and Justice (or any subsequent name by which the Department with responsibility for child safety, welfare and wellbeing in NSW may for the life of this Order be known), and
(b)First respondent, X, and
(c)Second respondent, Y, and
(d)Third respondent, Z.
AND It is noted that reg 13 of the Family Law Regulations 1984 (Cth) requires that “authenticated consent” must be in writing and authenticated by a person mentioned in s 8 of the Statutory Declarations Act 1959 (Cth) endorsing on the consent a statement that:
(a) the person is satisfied about the identity of the person signing the consent; and
(b) the consent was signed in the person’s presence.
ANNEXURE “A”
AUTHENTICATED CONSENT PURSUANT TO ORDER OF THE FAMILY COURT OF
AUSTRALIA DATED – IN [redacted]
The undersigned parties to the above matter agree to allow travel out of the Commonwealth of Australia for the following child subject to the above order as follows:
Child’s name:________________________________________________________
Child’s date of birth:___________________________________________________
Expected date of travel: ________________________________________________
Expected date of return to Australia _______________________________________
Travel itinerary: attached marked “A” and initialled by the undersigned party
Name and signature
the Deputy Secretary, Child Protection and Permanency, District and Youth Justice Services (or equivalent position in the event of any changes to machinery of government), Department of Communities and Justice (or any subsequent name by which the Department with responsibility for child safety, welfare and wellbeing in NSW may for the life of this order be known)
To be completed by a person authorised to witness a statutory declaration pursuant to the Statutory Declarations Act1959 (Cth):
I confirm that:
(a) I have satisfied myself of the identity of the above named person signing this consent; and
(b) this consent was signed in my presence.
Signed at _____________________ [place] on _____ [day] of _______ [month] _____[year]
Before me,
_________________________________________________
[Signature of person before whom the declaration is made]
_________________________________________________
[Full name, qualification and address of person before whom the declaration is made (in printed letters)]
AUTHENTICATED CONSENT PURSUANT TO ORDER OF THE FAMILY COURT OF AUSTRALIA DATED – IN [redacted]
The undersigned parties to the above matter agree to allow travel out of the Commonwealth of Australia for the following child subject to the above order as follows:
Child’s name:_________________________________________________________
Child’s date of birth:___________________________________________________
Expected date of travel: ________________________________________________
Expected date of return to Australia ______________________________________
Travel itinerary: attached marked “A” and initialled by the undersigned party
Respondent 1: X
To be completed by a person authorised to witness a statutory declaration pursuant to the Statutory Declarations Act 1959 (Cth):
I confirm that:
(a) I have satisfied myself of the identity of the above named person signing this consent; and
(b) this consent was signed in my presence.
Signed at _____________________ [place] on _____ [day] of _______ [month] _____[year]
Before me,
_________________________________________________
[Signature of person before whom the declaration is made]
_________________________________________________
[Full name, qualification and address of person before whom the declaration is made (in printed letters)]
AUTHENTICATED CONSENT PURSUANT TO ORDER OF THE FAMILY COURT OF AUSTRALIA DATED – IN [redacted]
The undersigned parties to the above matter agree to allow travel out of the Commonwealth of Australia for the following child subject to the above order as follows:
Child’s name:_________________________________________________________
Child’s date of birth:___________________________________________________
Expected date of travel: ________________________________________________
Expected date of return to Australia ______________________________________
Travel itinerary: attached marked “A” and initialled by the undersigned party
Respondent 2: Y
To be completed by a person authorised to witness a statutory declaration pursuant to the Statutory Declarations Act 1959 (Cth):
I confirm that:
(a) I have satisfied myself of the identity of the above named person signing this consent; and
(b) this consent was signed in my presence.
Signed at _____________________ [place] on _____ [day] of _______ [month] _____[year]
Before me,
_________________________________________________
[Signature of person before whom the declaration is made]
_________________________________________________
[Full name, qualification and address of person before whom the declaration is made (in printed letters)]
AUTHENTICATED CONSENT PURSUANT TO ORDER OF THE FAMILY COURT OF AUSTRALIA DATED – IN [redacted]
The undersigned parties to the above matter agree to allow travel out of the Commonwealth of Australia for the following child subject to the above order as follows:
Child’s name:_________________________________________________________
Child’s date of birth:___________________________________________________
Expected date of travel: ________________________________________________
Expected date of return to Australia ______________________________________
Travel itinerary: attached marked “A” and initialled by the undersigned party
Respondent 3: Z
To be completed by a person authorised to witness a statutory declaration pursuant to the Statutory Declarations Act 1959 (Cth):
I confirm that:
(a) I have satisfied myself of the identity of the above named person signing this consent; and
(b) this consent was signed in my presence.
Signed at _____________________ [place] on _____ [day] of _______ [month] _____[year]
Before me,
_________________________________________________
[Signature of person before whom the declaration is made]
_________________________________________________
[Full name, qualification and address of person before whom the declaration is made (in printed letters)]
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 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 by this Court under the pseudonym Secretary of the Department of Communities and Justice & X (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
The circumstances of this unique, extraordinary and most difficult case have been set out, as best they can be having regard to the suppression orders that have been made, from time-to-time, in my earlier judgments.[1] I incorporate those findings into these reasons.
[1] Secretary of the Department of Communities and Justice & X and Ors [2019] FamCA 521; Secretary of the Department of Communities and Justice & X and Ors [2020] FamCA 186; Secretary of the Department of Communities and Justice & X and Ors (No. 2) [2020] FamCA 534.
The children the subject of these proceedings in particular, but also the adults, have passed through the most difficult of times. The evidence establishes that, with the assistance of the applicant, other government departments and individuals who, unfortunately cannot be named, the children have been able to start to move from beyond their past and to settle into a stable and happy life.
The interim parenting orders that have been made in the past allocated a significant share of the parental responsibility for the children to the applicant. The parents and grandparents of the children have worked conscientiously with the applicant to act in the best interests of the children to have them adjust to their new life. In addition, all of the parties have engaged in two mediations to attempt to resolve, on a final basis, the role that the applicant will play in their lives in the future.
It has been agreed that the applicant’s role will change from 14 October 2021 so that it will no longer have any share of parental responsibility for the children. In agreeing to the orders, the applicant is satisfied that the remarkable steps that have been taken by all those involved with the children, but most specially their parents and grandparents have lessened the need for the applicant to continue to share in the parental responsibility for the children.
The evidence satisfies me that this is so and that it is in the best interests of the children that parental responsibility for them be completely assumed by their parents and grandparents.
It is for these reasons that I made the parenting orders on 6 May 2021.
SUPPRESSION ORDERS
The applicant, by means of their Further Amended Initiating Application filed on 6 April 2021, sought a suite of orders on a final basis expressed to stay in place until [redacted] which is the day after the youngest child, the subject of the orders turns 18.
Each of the adult respondents in these proceedings consents to the proposed orders.
The proposed final orders are based on a number of interim suppression orders which have been made for the reasons set out in the judgments recorded above. On each occasion, the suppression orders were opposed by News Corp Australia (including Nationwide News Pty Ltd), Nine Network Australia Pty Ltd, Fairfax Media Publications Pty Ltd, the Special Broadcasting Service Corporation and the Australian Broadcasting Corporation (“the ABC”) (collectively referred to as “the media interveners”).
The media interveners, however, have not filed a response to the Further Amended Initiating Application and have not adduced any evidence. The media interveners, other than the ABC, have indicated to the applicant that they do not wish to be heard on the present application, although each maintains its objection to the orders and repeats the submissions that it had advanced earlier. The ABC indicated that it did not wish to be heard. None appeared at the hearing.
Nonetheless, I must be satisfied that I have the power to make the orders sought and that it is appropriate that they be made.
I adopt each of the findings of fact and rulings on questions of law that I have made in my previous reasons as set out above. I adhere to the findings of fact made in them.
It follows that I continue to be satisfied that I have the power to make the orders and should do so. The safety of the children justifies the orders as explained in those reasons.
Whilst there is no evidence of recent threats against the children, this can be readily explained by the suppression orders themselves which have removed the children from the media, thus removing the opportunity from the public to express their views publicly. There is no reason to think, however, that the people who have made public threats against the children in the past have changed their minds.
I accept that the orders are extraordinarily wide in their scope. Again as I have explained earlier, I am satisfied nonetheless that the orders are proportionate to the risks faced by the children and are justified in all of the circumstances.
I have two concerns about the particular form of the proposed orders.
First, there is the question of how long the orders should last. These are final orders, and subject to any appeal, will remain in place in their present form until they expire at the time provided in the order themselves. The orders will therefore operate for another 16 years, which is a long period of time indeed for a suppression order to remain in place. Accordingly, consideration must be given as to whether it is appropriate to make orders for a shorter period of time.
This raises the question from what principled basis could such a shorter period be derived? Taking into account the obvious but important principle that the orders for the safety of the child should be adequate for their safety but be of minimum interference with rights, which is necessary to give rise to that protection, the application of that principle does not assist in identifying what shorter period of time would be appropriate. It follows that the selection of any shorter period for the operation of the orders would be entirely arbitrary which is unsatisfactory.
The adoption of a shorter period would, however, oblige the applicant or other interested person seeking the extension of the orders to bring an entirely fresh application. At such time, a risk to the safety of the children would have to be established, but because of the nature of the orders that will have been in place up until the time of that application, it is likely that no threats will have been made against the children. Thus the evidence relied upon is likely to be largely the same as that presently before the court.
Finally, the orders are being imposed for the safety of the children who range from [redacted] years old. Thus, if a shorter period of time is selected, the orders are likely to be in place for most of the eldest child’s childhood but not the others. As senior counsel for the applicant put it, why should one child have their entire childhood protected, when the others would not? The answer may be that the attitude towards the children might be mollified by time but, due to the extraordinary circumstances of this case, I consider that to be impermissible speculation.
Therefore, it is appropriate to have the orders in place until the youngest child turns 18 years of age.
The other issue of concern is that the orders carve out, for a number of individuals and particularly the named adults, the right to disclose material otherwise prohibited by the orders for the purposes of making necessary applications to government departments, health care providers and the like. The concern is that these exemptions from the orders may have the effect of undermining the integrity of the suppression orders themselves. The difficulty arises from the nature of the orders which are very wide ranging, but designed for the protection of the children. Their parents and grandparents will be adversely affected by the orders in such a way that will impinge on their day-to-day activities and life.
I accept that it is appropriate that a balance be struck between the protection of the children and permitting the adults to proceed with their lives in a normal fashion. The latter is of course, directly beneficial to the children themselves. Ultimately, I am satisfied that the exemptions granted to the adults are measured and appropriate and will not have any significant effect on the safety of the children.
As indicated in the earlier sets of reasons, it is not appropriate for there to be a continuing series of interim suppression orders. It is therefore appropriate that final orders now be made so that, subject to any appeal, there is certainty about what orders shall remain in place.
For these reasons and those in the earlier sets of judgments, I am satisfied that it is appropriate to make the orders sought in the Further Amended Initiating Application.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 7 June 2021
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