Sloan and Stephenson
[2010] FMCAfam 1078
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLOAN & STEPHENSON | [2010] FMCAfam 1078 |
| FAMILY LAW – Children – provision of records by Child Welfare Authority. |
| Family Law Act 1975, ss.13C, 91B, 60CC, 60K, 69ZW, 69ZT(2), 121, 248 Children and Young Persons (Care and Protection) Act, ss.9, 15, 16, 23, 25, 27, 28, 29, 30, 35, 36, 109, 245, 248 Federal Magistrates Act, s.65 |
| Northern Territory v GPAO [1999] HCA 8 |
| Applicant: | MS SLOAN |
| Respondent: | MR STEPHENSON |
| File Number: | PAC 3440 of 2010 |
| Judgment of: | Harman FM |
| Hearing dates: | 27 & 28 September 2010 |
| Date of Last Submission: | 28 September, 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 28 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bastow |
| Solicitors for the Applicant: | Cox West Lawyers |
| Counsel for the Respondent: | Ms Coady |
| Solicitors for the Respondent: | Louise Coady Family Lawyers |
| Counsel for the ICL: | Mr Ng |
| Solicitors for the Applicant: | Adams Partners |
| Counsel for the Director General of Community Services: | Mr Bhalla |
| Solicitors for the Director General of Community Services: | Department of Human Services Legal Branch |
ORDERS
Time is extended for compliance by the Department of Human Services with the orders pursuant to s.69ZW previously made by me and specifically the order made 15 September 2010 to 9.30am
1 October 2010.
In the event that the documents requested under that order are not produced to this Court by that date consideration will be given for referral of the appropriate legal officer within the Department seized with responsibility for compliance with the order to be referred to the Legal Services Commissioner of NSW and to the Marshal of the Federal Magistrates Court of Australia.
In the event that the Director General intends to file any appeal with respect to these orders or desires to be heard further or put further submissions with respect to the matter then I grant them leave to do so within 7 days of today’s date and in the case of wishing to put forward further submissions:
(a)the submissions are to be forwarded to my chambers by email within that seven day period as well as to each of the other parties and the Independent Children’s Lawyer;
(b)upon receipt of such submissions an order will be made in chambers pursuant to s.91B inviting the intervention of the Commonwealth Attorney General.
Pursuant to s.121, I authorise publication of these reasons to:
(a)the NSW Minister for Community Services, Linda Burney;
(b)the Director General of the Department of Human Services, Jennifer Mason; and,
(c)I recommend publication of this judgment.
The Court reserves the father’s and the Independent Children’s Lawyer’s costs of their appearance on 27 September 2010 and direct that in the event that there is compliance with the s.69ZW order within the time frame ordered that application will be dismissed but failing compliance that application will be relisted for determination.
Pursuant to s.245D and s.248 of the Child and Young Persons Protection Act, this Court as a prescribed body and requesting agency requests that the Department of Human Services as a prescribed agency provide to this Court such documents and information as they hold with respect the child [X] born [in] 2010 and particularly any documents relating to reports, assessments or investigation of suspected family violence or abuse of any form but not defined to those issues.
BY CONSENT AND PENDING FURTHER ORDER orders and notations are made in accordance with the document entitled “Interim Terms of Settlement” signed by the parties, their legal representatives and the Independent Children’s Lawyer, filed in court today and marked Exhibit “A”.
The proceedings are adjourned for further mention and directions to 12.30pm on 9 December 2010.
That pursuant to s.13C(1)(c) that both parents Ms Sloan and
Mr Stephenson (“the parents”) shall forthwith and within 7 days contact [omitted] (“the agency”) and arrange and attend the first available and offered intake appointment with a Family Advisor or Family Counsellor with the agency and to allow an assessment to be made by the agency of the most appropriate assistance that can be provided to them and including whether services, courses or programs provided by that agency or by referral to any other family relationship service or professional and with respect to same:
(a)Such assistance shall be focused upon the following issues and upon achieving the following purposes:
(i)Co-operation and co-parenting with each other;
(ii)Child safety and protection issues/education;
(iii)Impact of drug and alcohol use on parenting and child development.
(b)The parent shall then attend at such times, dates and places and pay such fees as are advised by the agency and continue to do so until that service, course or program is completed and the above stated purposes achieved to the maximum extent the agency considers possible;
(c)The agency (and any other family relationship service or professional to whom referral is made) is requested to:
(i)Advise the Court in writing when service provision has been completed or withdrawn;
(ii)Advise the Court in writing should the parent fail to contact the agency within 7 days or fail to co-operate, accept referrals or fail to participate in any service, course or program recommended;
(iii)Advise the Court in the event that a notification to the Department of Human Services is made (by the agency or any other family relationship service provider or professional to whom referral is made) as to any of the matters set out in s.10D(4) and, if the agency considers it appropriate, to provide to the Court a copy of such notification (and noting that this shall be a matter entirely for and within the discretion of the agency as information can be obtained by the Court from the Department of Human Services pursuant to s.69ZW) and in the event such copy is provided:
1. It shall be admitted into evidence of the Court’s own motion and subject to s.69ZT(2);
2. The proceedings shall be relisted as a matter of urgency and of the Court’s own motion and pursuant to s.60K to determine what further interim or procedural orders should be made to:
a. Enable appropriate evidence about the allegations to be obtained as expeditiously as possible; and,
b. To protect the child or an of the parties to the proceedings;
c. Deal with the issues raised by the allegation;
3. An order pursuant to s.69ZW shall be made of the Court’s own motion addressed to the Department of Human Services and/or Police of the Court’s own motion;
4. Neither the author of such notification (if apparent from any material provided to the Court) nor any service provider referred to by these orders shall be permitted to be required to attend Court, (by subpoena or otherwise) nor called to give evidence nor cross examined.
(iv)Contact the independent children’s lawyer prior to any intake appointment with the parent to obtain such information and materials as they consider helpful, useful or desirable with respect to the proceedings and issues and allegations involved in the proceedings;
(v)Provide such information to the independent children’s lawyer as the independent children’s lawyer may request from them and all such information as is provided shall be treated as confidential pursuant to s.10D(4)(f);
(d)The relevant contact details of the parents and the ICL are as follows:
(i)Father:
Address: [omitted]
Tel: [omitted]
(ii)Mother:
Address: [omitted]
Tel: [omitted]
(iii)ICL: Steven Ng
Tel: 02 4722 6600
(e)Any employee of the agency engaging with the parent and any other family relationship service provider or professional to whom referral is made has leave to inspect the Court file and any subpoenaed material produced to the Court and for which leave has been grant to inspect by the parties, their legal representatives and/or the ICL;
(f)Evidence of anything said or any admission made by or in the company of the family advisor or family counsellor or any other family relationship service provider or professional to whom referral is made shall be inadmissible in accordance with s.10E (and subject only to the service providers requirements to disclose information in accordance with this order and in accordance with s.10D(4) (dealing with threats, risks of harm and disclosures and admissions of abuse);
(g)No subpoena shall be issued by any party or the ICL to the agency or any other family relationship service provider or professional to whom referral is made by the agency without the Court’s leave first had and obtained and without notice to and the opportunity for the agency to be heard with respect to such application for leave.
(h).In the event that the agency determines that it would be useful or desirable for the child to be involved in any appointment and/or to also attend for intake and assessment as to any counselling service, course or program that would be appropriate and of assistance to the child then each parent shall do all things, sign all documents and give such consents and authorities necessary to facilitate such attendance and the above provisions shall thereafter apply to the child’s attendance and noting the child’s details as follows:
[X] born [in] 2010.
Liberty is granted to the parties and the Independent Children’s Lawyer to restore the matter to the list in the event that it is suggested there is either non-compliance with the orders regarding attendance with service providers made 3 August 2010 and today or other difficulty or urgency relating to the child’s welfare on 72 hours notice to my Associate.
IT IS NOTED that publication of this judgment under the pseudonym Sloan & Stephenson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3440 of 2010
| MS SLOAN |
Applicant
And
| MR STEPHENSON |
Respondent
REASONS FOR JUDGMENT
Background & Submissions
These are proceedings involving competing parenting applications with respect to a very young child now five months of age. I do not name that child in these reasons, as issues relating to the child are not the subject of this judgment as much as procedural and legal issues relating to the interpretation of section 69ZW of the Family Law Act and a broader issue as to co‑operation and assistance between State and Federal agencies dealing with the same child. For this child is a child known to the Department, as indeed are the child’s two elder siblings, one the child of the father and one the child of the mother from previous relationships, both of whom are also known to the Department of Human Services in New South Wales.
These proceedings were commenced in late July 2010 seeking, at that time, urgent relief and interim parenting orders with respect to this young child, who was then not quite four months of age. On the first return date of the proceedings, being 3 August 2010, a child dispute conference occurred, in which a family consultant of this court spent time with each of the parties and attempted to assist the parties reach a resolution and, thereafter, that being a reportable process, provided a memo to the court to identify issues in dispute and matters that should be addressed.
It is of note that the family consultant conducting the child dispute conference made a notification to the Department of Human Services suggesting, firstly, that this young baby, then four months age, was at serious risk of physical harm in either parent’s care and, secondly, that the child was, potentially, in immediate danger with either parent, neither of whom was assessed by the family consultant, based on the evidence she had before her, as appropriate carers for this four month old child, a child of incredibly tender years and vulnerability.
The notice and report made by the family consultant to the Department of Community Services was acknowledged some eight days later by the Department, who indicated that they had forwarded the referral to the [omitted] office of the Department. Why that is so is somewhat of a mystery as both parties lived at [omitted] and, clearly, would fall within the [omitted] office domain. But in any event, nothing further has been heard.
On the same day, 3 August, an order was made under section 69ZW requesting that the Department of Community Services, under the auspices of the Department of Human Services, provide to this court a report identifying particular information and specifically relating to, in accordance with the terms of that section, any notifications to the agency of suspected abuse of the child or suspected family violence, any assessment by the agency of investigations into notifications and any reports commissioned.
A response was received from the Department nearly a month later raising a number of issues with respect to the terms of the order, in that it sought a report rather than the provision of documents and information which is the specific provision of the section, and I will return to that shortly. Otherwise, no documents were produced and it was indicated that documents were held which might identify a notifier or, more correctly under the present legislation, reporter, and that these were excluded under section 69ZW(3). That section reads:
Nothing in this order is to be taken to require the agency to provide the court with:
(a)documents or information not in the possession or control of the agency; or
(b)documents or information that include the identity of the person who made a notification
or, in accordance with New South Wales legislation, the report.
Certainly, the issue raised by the Department regarding the production of a report would have some force as that would, at least on face value, be a document or information not in the possession or control of the agency as requiring them to, in fact, summarise documents and information they do have and produce a report. The manner in which that was conveyed to the court, however, - by a letter signed by a legal officer of the Department and, accordingly, an officer of this court - is unacceptable. Communication does not occur with the court by correspondence but by appearance. If there was an issue to seriously be raised by the Department, one might have expected an appearance. Leave would have been granted, but no such leave was sought, nor any attempt made to so appear.
It is submitted on behalf of the Director General today, as I comprehend the argument, that there are two substantial objections to the production of documents in this manner and, I would presume, all other matters in which I have made section 69ZW orders.
The issue in this case and over a dozen others in which an order has been made by this court is that the Department, as I have indicated, has two objections: firstly, that subsection (3) which I have quoted excludes documents which identify or would have the potential to identify the notifier. I do not accept that submission. The subsection, in itself, indicates that nothing in the order is to be taken to require production. Accordingly, the Department can certainly produce if they wish to and if they have the will to do so. And I will return to that issue for I feel that has some great moment in this matter.
The fact that such a document might be produced to the court which identifies a reporter is anticipated by the terms of section 69ZW and, indeed, by the terms of subsection (6), which indicates that the court must not disclose the identity of a person who made a notification or information that could identify that person, save with two exceptions or conditions. Accordingly, the section of itself anticipates that material may be produced with the overriding concern which I will deal with extensively in these reasons for the best interests and protection of children being paramount. But that is an exception the Department takes and stands behind.
The other exception arises from an amended section 69ZW order made by this court on 15 September which, in far more specific terms and adopting the specific language of the section, sought the production of documents and information and directed the Department, if they did not wish to disclose any notifier or any information which might have the potential to disclose a notifier, to delete and remove that reference before producing the document.
In a matter I had dealt with last week and notwithstanding that a period in excess of two months had passed during which three orders pursuant to section 69ZW had been made and a number of extensions granted, the Department ultimately produced a foot‑thick pile of documents wherein they had, in fact, deleted the references which identified a reporter. However, those documents were produced in response to a subpoena issued by the Independent Children’s Lawyer, rather than in compliance with the court’s order.
And I expressed my view in somewhat more heated terms in that judgment that such a flagrant disregard of this court’s authority or any failure to extend courtesy to the court was not befitting a solicitor holding a practising certificate in New South Wales, and that future episodes of that nature would be referred, as they will be, to the Legal Services Commissioner to deal with and investigate the fitness of any such person to continue to practice. That is not a threat made to try and create difficulties for the Department, but to express, perhaps, this court’s frustration in trying to do its job - the protection, in this case, and the case to which I have referred, and more than a dozen others of children who have been the subject of notifications by family consultants of this court that they are in serious risk with either parent.
Departmental intervention
Also, on 3 August 2010, in this matter an invitation was extended to the Department pursuant to section 91B to intervene in the proceedings. A private solicitor engaged on behalf of the Department appeared yesterday to decline that invitation. That is so, notwithstanding the notification made by the family consultant that the child was potentially and, based on the evidence disclosed by the parents during that session, in serious physical danger in either parent’s care and noting the child was 4 months of age.
The documents produced in this matter are nil. It is indicated in the written submissions on behalf of the Department, which I will make exhibit DG1, that there are documents held by the Department, that
10 documents, in fact, are identified, being a mixture of contact records, assessment records and file note records that fall within the term of the order pursuant to section 69ZW, but that, it is submitted, that subsection (3) limits the operation so that there is an exclusion of that material if it identifies a notifier. As I have indicated, I do not accept that submission. It indicates nothing more than the Department is not to be taken to be required to produce documents. That, in my mind, as a matter of common English usage, if nothing else, must import a discretion, a discretion which the Department has determined to exercise negatively.
The other limb as I have indicated is to suggest that an order which requires the Department to take action to remove a reference to a notifier is, if I am correctly understanding the submission, void as it exceeds the court’s exercise of authority under section 69ZW. Again, and particularly on the basis that subsection (6) does, in fact, allow and anticipate the production of material that would identify a notifier in any event, notwithstanding that the Department is not required to do so but has the discretion to do so, could not succeed. Directing the Department in such a fashion is, in fact, to assist them and to attempt to suggest clearly to them that the information is important.
The facts
And in that regard, I turn to the facts of this case which gave rise to the initial invitation to intervene and to the series of section 69ZW orders that have been made. In discussion with the family consultant on 3 August 2010, the father of this baby, four months of age at that time, disclosed that he used marijuana on a daily basis and drank half a case of beer per day, significantly in excess of accepted medical guidelines for healthy consumption of alcohol and, in fact, falling within any definition of alcoholism.
The mother, for her part, suggested that she smoked marijuana on a daily basis and consumed six to eight beers a day for three or four days per week. These are parents with the care of a four month old baby. There were other serious allegations raised by each of the parents in their respective affidavits, albeit that they were prepared hurriedly and were brief, but sufficiently detailed to suggest each is against the other and that they were, in fact, a danger to the child.
The matter that was dealt with last week and is the subject of two separate judgments, one dealing with the substantive issues and one dealing with section 69ZW, involved serious allegations of violence. The Department took nine weeks to produce any documents, having ignored three section 69ZW orders, but having produced documents in respect to a subpoena issued by the Independent Children’s Lawyer.
During those nine weeks, this court did not have any information that it could act upon and was, accordingly, somewhat powerless to take any action. Once documents were produced, it included matters such as the following: a notice of determination issued by the Victims Compensation Tribunal with respect to not only the child who was the subject of the proceedings, but a biological sibling of that child who was not the subject of the proceedings, and a step‑brother of that child, who was also not a subject of the proceedings, but had some significance in the matter.
In relation to the step‑sibling, who was at the time of that hearing last week 15 years of age, it referred to the following:
An application for compensation is made in relation to assaults by his step‑father between 1997 and 2000, a period when the parties were living together. The offender has been convicted of breach of an AVO. On 30 July 2000, [Y] was taken to hospital with bruising to his face, back and legs. DoCS and police were involved. He disclosed the injuries were caused by his step‑father. DoCS obtained a care order.
It goes on to indicate, after repeating a similar litany of injuries to this child which were known to the Department, and in reference to a report written by a psychologist:
The psychological harm of the domestic violence [Y] experienced directly and witnessed has had a significant deleterious effect on his daily functioning and has rendered him moderately disabled. The authorised report writer considers there has been a 47.4 per cent reduction,[that is, nearly half] in [Y]’s functional capacity that is directly attributable to the domestic violence perpetrated upon him. [Y] experiences anger, a sense of helplessness and reduced socialisation. [Y] is diagnosed as having oppositional defiant disorder, conduct disorder and post‑traumatic stress disorder.
In relation to the child who was the subject of the proceedings there is similar comment in relation to assaults visited upon that child, as well as his witnessing serious assaults, including physical and sexual assaults of his mother and sister by one of the parties to the proceedings. And as a consequence of that information not being before the court for nine weeks, the person with whom this child was left by this court, that was changed immediately on the day. It would have been changed immediately upon the production of that information earlier if the Department had seen fit to produce it.
So it is with some real anguish that a submission is put to me regarding public policy issues. The only public policy that this court is concerned about is the protection of children. And in my mind, nothing less than the child involved in those proceedings having been exposed to an ongoing serious risk of physical and emotional and psychological harm as a consequence of the Department’s delay is what occurred.
Returning to this matter, the child, as I have indicated in this case, is a baby of some months of age who, based on the material before the court and which has been before the court since 3 August, has two parents who are alcoholic and drug‑addicted. The risk to this child in those circumstances was manifestly clear to the family consultant and to the court on 3 August. The assistance this court has received from the Department is not only negligible, it is non‑existent. In fact, the matter has been adjourned on four occasions to enable the Department to be heard if they did not wish to produce material or, heaven forbid, to produce the material requested and to intervene, which they have now declined to do, having taken from 3 August to make that determination and noting that a protocol exists between this court and the Department. A Protocol is not needed when the Act gives authority to the court to make orders, but there is a protocol with time limits, none of which have been observed in this matter or any other matter in which section 69ZW orders have been made.
I have dealt with the facts of this case and the facts of a case I had dealt with last week purely to touch the surface of the types of issues and allegations involved in these cases and, by reference to the facts of this case, to highlight the fact that this child is in danger. There is no other way of describing it. If I am to believe the evidence of either party or, more importantly, to accept the admissions and concessions made by each party to the family consultant, it could not be otherwise and, yet, there is no assistance offered through the provision of documents or information by the very agency seized in New South Wales with the protection of children.
In relation to the terminology that I have used in saying that this child is at serious risk, I turn specifically to section 23 of the Children and Young Persons (Care and Protection) Act, the State legislation. It provides that “…a child or a young person is at risk of significant harm if current concerns exist for the safety, welfare or wellbeing of the child or young person because of the presence, to a significant extent, of any one of more of the following circumstances”.
Subsection (a) indicates:
the child’s or young person’s basic physical and psychological needs are not being met or are at risk of not being met.
In my mind, the facts I have described fall under that heading. Subsection (d):
the child or young person is living in a household where there have been incidents of domestic violence –
there are substantial allegations of domestic violence in this matter. Subsection (f):
the child or young person is the subject of a pre‑natal report –
certainly, in this case, it is a post‑natal report – but the subject matter is that the birth mother did not engage successfully with support services to eliminate or minimise to the lowest level reasonably practical the risk factors that gave rise to the report.
The family consultant made a number of recommendations as to extensive support services both parents needed, including the referral of the mother to a drug and alcohol dependency clinic operated through a public hospital. The mother has not, it would appear, as a consequence of a subpoena issued by the Independent Children’s Lawyer, engaged with that service.
That causes this court grave concern. For indeed the order made for the child to live with the mother was, if not expressly conditional, certainly inferred and made no small connection between the fact that those services being pursued would have some real significance to what was to occur with the matter in the future. It was on the basis of those types of allegations that the Department was requested to intervene.
Whilst specifically the provisions of the state legislation would not necessarily guide the Department in their decision as to whether to intervene or not – and I am not privy to the processes and machinations that have occurred in the Department’s consideration in that regard - I note section 36 of the state legislation indicates principles for intervention and include circumstances such as the immediate safety, welfare and well-being of the child.
The Department, I can only presume, does not take seriously the qualifications, expertise or concerns either of the court or of the court’s family consultant who made a report of exactly those circumstances which has not, it would appear, and I do not have any documents produced so I cannot tell otherwise, been addressed by the Department in any fashion other than to refer it to a service centre which is completely irrelevant to these parties and their geographical location.
The Family Law Act
There are two sections in my mind that are germane to today’s considerations. One of those is section 60K. Section 60K of the Family Law Act requires that the court is to take prompt action in relation to allegations of child abuse or family violence. It goes on to indicate that this particularly relates to concerns about allegations of abuse, risk of abuse, family violence or risk of family violence. All of those issues are involved in this case. The court has not been in a position to take any prompt action because the court has been waiting for some assistance from the Department.
Indeed the matter is before the court today for the fourth time awaiting that assistance which is still not here. It otherwise goes on to indicate in subsection (2) that the court must consider what interim or procedural orders should be made to enable appropriate evidence about the allegation to be obtained as expeditiously as possible. Well, that is to make an order under section 69ZW and that is exactly what the court did. And the purpose for doing so is quite clear from that section - to protect the child or parties to the proceedings from whatever is contained in that evidence. The court is then also compelled to deal with the issues raise by the allegations as expeditiously as possible.
The difficulty is that this is a court and it operates on evidence and information. Evidence and information that the Department holds that it does not wish to share with this court. I had asked in submissions the specific question of “why the Department does not wish to assist the court with information?”. Quite appropriately, counsel for the director-general has indicated that that is not a question that can be answered and is probably a question that is in some ways unfairly put. But again, if nothing else, it expresses this court’s frustration. The two agencies seized with similar responsibility cannot seem to cooperate.
A matter that I am sure the public will be gravely concerned about, placing faith as they do, in both welfare agencies and this court to protect children. And that one agency, a welfare agency, does not feel disposed to assist this court to do so I find it regrettable, to put it as euphemistically as I can. Returning to section 60K and in turn section 69ZW, I note that the explanatory memorandum to the 2006 amendments that inserted each of those sections is of some assistance in understanding the public policy issues involved in dealing with these sections. It reads at paragraph 116:
Item 11 also inserts a new section 60K as part of the new sub-division E of division 1 of part 7 of the Act.
It goes on to indicate:
This is an important provision as where issues of violence and abuse are raised there is a process in place to ensure that there will be adequate information provided to the court so that it can make appropriate orders and so that necessary steps can be taken to ensure appropriate protections are in place.
That process or at least an important part of it is section 69ZW. It goes on to indicate this at paragraph 121 of the explanatory memorandum:
Subsection 60K, subsection (3) provides that when considering what order, if any, should be made under paragraph 60K(2)(b) to enable appropriate evidence about the allegations to be obtained as expeditiously as possible, one of the matters the court must consider is whether it should make orders under the new section 69ZW to obtain reports…….
I note that word “report” crops up again. The word that I had used in the initial order in which the Department took exception to. Continuing:
……From state and territory agencies in relation to the allegations. Section 69ZW is a new section inserted by schedule 3 which allows the court to make an order requiring a prescribed state or territory organisation to provide the court with documents or information it may have about notifications and investigations of child abuse or family violence affecting the child.
The types of organisations that would be prescribed would include those that have investigative power in to family violence and abuse issues such as child protection agencies and police Departments.
And I pause there to note that certainly in New South Wales the prescribed agencies under regulation 12CD and schedule 9 thereof, are the Department and New South Wales Police. I hasten to add that New South Wales Police have also been the subject of orders made by me under section 69ZW and they, in a most prompt and expeditious fashion, comply and send whatever documents they have.
Perhaps they better understand the importance, of the information contained within those documents, to this court’s decision-making power particularly, as required by the second primary consideration under section 60CC, the need to protect children from physical or psychological harm. The explanatory memorandum goes on in paragraph 122:
The intention being section 60K and section 69ZW is to ensure that the court has as much relevant information as possible when making a determination about what is in the best interests of the child.
Subsection 60K, subsection (3) does not limit subparagraph section 60K(2)(a)(i) which is a paragraph which provides the court must consider what interim and procedural orders should be made to enable appropriate evidence about the allegations to be obtained as expeditiously as possible. And the court may make other orders under that sub-paragraph as it considers appropriate. Certainly making orders of the type this court has made (directing the Department to produce material, documents and information and to delete references that would identify the reporter if they consider that necessary or appropriate), notwithstanding that section 69ZW, subsection (6) of itself envisages that that information could be provided, if appropriate, is in my mind an exercise of exactly the power Parliament intended.
The explanatory memorandum also makes that very clear in paragraph 14 of that memorandum. Section 69ZW gives the court the power to make an order in child related proceedings requiring a prescribed state or territory agency to provide the court with documents which contain information about one or more of the following and repeats the wording of the section. It also makes very clear in paragraph 16. Subsection 69ZW(3) clarifies that nothing in the order is to be taken to require the agency to provide the court with documents or information not in their possession or documents or information that include the identity of a person who made the notification.
If the agency does provide documents that include that identity - the person who made the notification- disclosure of these documents or information can only be made in the circumstances set out in subsection 69ZW(6). Again, that gives me some confidence that my interpretation of that section is accurate.
Whilst the issue has not been specifically raised in this case and whilst, in my mind, there are a number of distinguishing features in any event, paragraph 18 of the explanatory memorandum also indicates this – “This is intended, being the insertion of section 69ZW, to assist the court to overcome issues that are raised in the case of Northern Territory v GPAO [1999] HCA 8”.
In my mind, that of itself is a statement of Parliament’s intention and that which was to be achieved by the section, but in any event the case referred to dealt with a subpoena and provisions of Northern Territory legislation quite different and distinct to the sections that are being dealt with here, and I will turn to the state legislation shortly.
Although the exception that is taken in submissions does not relate in any way to section 29 of the Children and Young Persons (Care and Protection) Act and purported reliance upon it, but purely to what is seen as and what is put in submissions as the effect of subsection (3) of section 69ZW excluding any document which identifies a reporter, and in my mind, as I have indicated, that is not what the subsection does at all.
It provides a discretion on which, as I have indicated for reasons best known to the Department, they feel override, as regards public policy in relation to disclosure of notifiers, this child’s best interests. The explanatory memorandum also indicates with regard to section 69ZW in paragraph 20 it recognises that it is a matter of public policy that the identity of a notifier should be protected in most circumstances to ensure that there is no disincentive to notification of child protection issues.
That public policy issue which, as I understand, is an important thrust of the Department’s position I will return to in dealing with the State legislation. While it is submitted to me that the State legislation has no bearing or relevance whatsoever, I do not agree with that submission.
I feel that for one to turn to the State’s legislation, particularly having rejected the submission that subsection (3) of section 69ZW excludes documents that identify reporters, hence there is a discretion, that discretion must, in my mind, be informed by the State Welfare Agency acting in accordance with their legislation as regards the role of the Department.
The Department’s role
The role of the Department in New South Wales is to protect children at risk of harm or who have been abused. There are some other categories of case involved, particularly in relation to children whose relationship with one or both parents has apparently broken down irretrievably. The role of the Department is set out in a number of sections of the Act which they administer, the Children and Young Persons (Care and Protection) Act.
The Department’s role must be to act in accordance with the objects of their legislation. Whilst section 7 of the Act makes clear that the objects themselves are not part of the substantive law, the intention of objects and principle statements within legislation is to inform all that is done as regards the substantive provisions. Section 8 of the Act indicates:
The objects of this Act are to provide:
(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and wellbeing having regard to the capacity of their parents or other persons responsible for them, and;
(b) that all institutions -
and this court is an institution, as is the Department -
services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation;
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities.
That is also a power that is reflected in section 13C of the Family Law Act. Section 9 of the State legislation indicates the principles for administration of the Act and indicates in subsection (1):
This Act is to be administered under the principle that in any action or decision -
and that would include an action or decision regarding whether to comply or not comply with an order made by this court under section 69ZW and the exercise of the discretion as to whether documents which identify a reporter are to be produced pursuant to that order:
is to be administered in any decision concerning a particular child or young person. The safety, welfare and wellbeing of the child and young person are paramount.
Here is a child of four months of age whose parents are alcoholics and drug dependent, where there are substantial issues of domestic violence, impoverished households, clear involvement with the Department in relation to not only this child but elder step siblings, where this court through a family consultant and this judicial officer have raised serious issues regarding the child’s safety, welfare and wellbeing through inviting intervention and providing information.
The Department apparently think we are not qualified to make that assessment. It also goes on to indicate in subsection (2)(c) of section 9:
In deciding what action it is necessary to take, whether by legal or administrative process [such as, for instance, complying with an order pursuant to section 69ZW or a request for information pursuant to section 248], that that action is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.
Presumably, the determination was made in this case and each of the other cases – more than a dozen – that the child’s protection was somehow subverted by either what are perceived as legal technicalities, not that the Department have seen fit to extend the courtesy to this court to come and argue it, notwithstanding I have been making these orders since June 2010 until today, but that something has outweighed the protection of this child by producing whatever information it is that the Department holds.
Other relevant matters
The Director General receives reports in relation to children who are alleged to have been abused or at risk of harm. They come under chapter 3, part 2. I have already referred to the definition of a child at risk and how, in my mind, this child could not possibly be described under State legislation, let alone in this court’s own non-defined terminology, as being other than a child at risk, but notifications can be received prenatally – section 25 – anonymously – section 36 – from mandatory reporters such as the family consultant in this case – section 27 – and there is an obligation for the Department to keep records – section 28 – and to take active steps to protect the identity of persons making reports – section 29.
How the Department treats information
Section 28 of the State Act requires that the Director General must keep a record of any report made to the Director General and any action taken as a direct consequence of the report that has a significant effect on the child or young person to whom the report relates.
I am told that there are reports and that records have been kept, presumably in accordance with section 28. Section 30 of the State legislation imposes an obligation upon the Director General:
On receipt of a report that a child or young person is suspected at being at risk of harm:
(a) the Director General is to make such investigations and assessments as the Director General considers necessary to determine whether the child or young person is at risk of significant harm;
(b) the Director General may decide to take no further action if, on the basis of the information, the Director General considers that there is insufficient reason to believe that the child or young person is at risk of significant harm.
I pause at that point to refer to the volume of Magellan reports that are produced to the Family Court which consistently note notifications and end with the phrase, “No action taken. Not allocated due to competing priorities.” How that possibly discharges the Director General’s obligation under section 30 I do not know, but that is a matter for the Director General.
Presumably, “competing priorities” means that it is appropriate to take no further action. Regrettably, it does not mean that the child at risk is no longer at risk. Section 35, in fact, goes on to provide what is to occur if a decision is made against taking action. It indicates:
The Director General may decide to take no action if the Director General considers the proper arrangements exist for the care and protection of the child or young person and the circumstances that led to the report have been or are being adequately dealt with.
Again, how that phrase sits with, “Not allocated; competing priorities” beggars belief. It imposes a positive obligation that unless the Director General is satisfied that there are proper arrangements or that circumstances have changed, they must take action.
Simply not allocating the matter because they are too busy with other problems, including taking up their resources coming to have arguments about providing assistance to this court, is perhaps something they might review in how they use and expend their $1.419 billion per year budget, but that is a matter for them, not this court.
How they conduct their own affairs I am not concerned with; I just want some help by having evidence that enables me to discharge my obligations under section 60K and section 60CA that compel me in everything that I do, procedurally and substantively, to place the child’s best interests as the paramount consideration. Not issues of public policy, not issues of expending the Department’s resources, but the child’s best interests, and in this case the child’s safety and protection.
It also indicates that if a decision is made against taking action, a record must be made of the reasons. The only reason I have really seen in Magellan reports is “competing priorities” which, as I have indicated, I do not quite see how meets the requirement of that section, but that is a matter for the Department.
Section 15 of the state legislation defines the role of minister. The minister does not appear in these proceedings, although she is going to be given a copy of this judgment and she is going to be made very aware, both by the court and no doubt through public debate of the issues that are raised in this case. Ms Burney’s general role, under the legislation, is to “….promote a partnership approach between the government, non government agencies, families, corporations, business agencies in the community in taking responsibility for and dealing with children and young persons who are in need of care and protection”. Really? That is not what I am seeing in this case.
Section 16 defines the Director General’s role. She is appearing in these proceedings, she is represented. The principle role of the director is “….to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of this Act” to which I have already referred. I am not quite certain how the approach taken in this case and the dozen or so other cases in which I have made section 69ZW orders meets that either, but that’s a question for the Director General to answer to her political masters, not me.
In subsection (2) of section 16, headed “Interagency Procedures and Protocols”, and I would have thought that might apply to how the Department deals with my court, it indicates the Director General is “….to promote the development of procedures and protocols with government Departments and agencies in the community sector that promote the care and protection of children and young persons and to ensure that these procedures and protocols are implemented and regularly reviewed". There is a protocol between my court and the Department. Nothing that has occurred in this or any of the other matters, subject to section 69ZW orders has been in accordance with that protocol as regards the Department’s responses. And more importantly, that’s communicated to me through silence or correspondence rather than the courtesy of an appearance or an attempt to raise an argument.
Section 28, to which I have already referred, requires the Director General to keep records of any report made and any action taken as a direct consequence. The regulations provide in regulation 8 that those records may be kept in written or in electronic form but may be kept in electronic form only as long and they are capable of being printed onto paper, what else you print them onto I am not certain. But how the Department treats its information, I have referred to that. They keep it in writing within files. There is a distinction, as regard to section 69ZW, between documents and information. They are both referred to.
The orders that have been made under section 69ZW don’t just call for documents but also information. The documents that are produced by the Department record the information that is being received but the information also resides with the individuals who have received the information. There is, of course, an alternate course of action this court can adopt and if it what the Department wants, I am happy to do it.
I can direct the Independent Children’s Lawyer to issue a subpoena to the manager of each regional office that may well hold information to attend give evidence and to produce documents on subpoena, rather than seeking them through the Director General. There may be some issue regarding documents but certainly to attend to give evidence, they would be compelled to attend.
There would then be a very real consequence if they failed to attend. Both the Family Law Act and the Federal Magistrates Act, because I have the great benefit of operating under two pieces of legislation, not just one, provide severe penalties for failing to attend in response to a subpoena to give evidence. I can issue a warrant, under the Family Law Act, to secure their attendance. I had yesterday, when different counsel appeared and in fact different legal representatives had appeared at 9.30 when the matter was listed and the matter could not ultimately be dealt with because of the Department delaying the matter until nearly 3 o’clock, but I had indicated on that occasion that that was potentially a course open to me to cause a subpoena to issue to the Director General or to individual named employees of the Department for them to attend and give evidence and share the information that they hold in their own heads, if not in documents.
If their memory was exhausted, they could refresh their memory from documents and give that evidence. If they did not attend, I could issue a warrant. If they did not answer questions then under section 65 of the Federal Magistrates Act, I could imprison them for up to six months. That, of course, would not do much for interagency cooperation. It would not do anything for the Department’s resources, because I would have DoCS officers in my court on subpoena every day. If that is what it is going to take to get the information I need to protect this baby, it is the path I will take if the Department still does not wish to provide information.
The provisions of that nature would not come as any surprise to Departmental officers, because they would know, under section 109B of their legislation, if a person fails to attend in response to a subpoena, they can be arrested, so the consequences would be well known to them. But there is a simple answer to all of this, and might I suggest this to the Department. They are required, in accordance with the sections to which I have referred, to keep records and keep them in writing. Indeed, it would be difficult for them to conduct their business if they did not. Perhaps if the Department were to keep records that did not, on their face, disclose the identity of the reporter, they might be able to actually discharge their functions and help this court discharge its functions, simply push a button and print the documents and send them to me in a reasonable time frame so that I can do what section 60K requires of me, to act promptly when there are serious allegations.
The section exists for a reason. Four month old babies cannot protect themselves from drug dependant, alcoholic parents who engage in domestic violence. The Department cannot protect this child because they cannot even share information and they make it difficult for me to do my job, and I am not prepared to tolerate that any further. The other issue that has not been raised in submissions but I want to deal with it for the sake of completeness, section 29 of the Children and Young Persons (Care and Protection) Act. It provides, and is headed “Protection of persons who make reports or provide certain information”. The section of itself indicates that a person cannot be compelled to produce a report or copy of an extract or disclose evidence in court proceedings unless the court so orders.
The section of itself is often referred to as an exclusion to producing any document that identifies a reporter. Whilst I do not operate under that legislation, any reading of that section makes clear that argument could not be sustained. I will leave it to state courts to address those issues more specifically in their jurisdiction but it also impacts on mine. If, for no other reason, section 29 subsection (6) makes clear that the reference in the section to a court includes a court exercising federal jurisdiction, ie, this court.
The exceptions under that section are extensive. They include subsection (1)(f), that the identity of a person who made a report or information from which the identify of that person could be deduced, must not be disclosed except under subsection (2) with the leave of a court or other body before which proceedings relating to the report are conducted. In my mind, that renders invalid the argument put on behalf of the Director General that the Department cannot be compelled to produce a document that identifies a notifier and or directed to delete the reference to the notifier. I can grant leave to produce that document and the Department need be under any illusion other than that is exactly what the intention of my order was, and if they had thought to be here on the day I had made it, they would have heard that expressly put in the reasons for the order which arose from a need to adjourn the proceedings as a consequence of non-compliance by the Department with the order.
Accordingly, the orders I have already made specifically give leave to produce material that might identify a reporter and give direction as to the removal of the person’s identity in any event. Subsection (4) also gives an exception. It says that notwithstanding that material shouldn’t be produced which identifies a notifier, and this in my mind is a particularly germane section as regards the exercise of what I view as the Department’s negative discretion to produce material, Subsection (1)(f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report. I am trying to investigate the report. That section may have been included for my benefit
Subjection (4A) makes specific reference to law enforcement agencies, and this court is not prescribed, under the regulations to the State legislation, as a law enforcement agency, nor does it want to be one. But subsection (4), as opposed to subsection (4A) is not limited in its scope to law enforcement agencies, and indeed, subsection (1)(f) authorises this court to compel the production and disclosure, and subsection 69ZW(6) then gives this court some direction to not release the identity of the reporter.
It also goes on in subsection (4A), whilst it deals with specific law enforcement agencies rather than the court, to give some clue as to why that discretion might be exercised. In subsection (b) of subsection (4A), the disclosure is necessary, for the purposes of safeguarding or promoting the safety, welfare, and wellbeing of any child or young person, whether or not the victim of the alleged offence. In other words, as regards public policy arguments, notifiers and revealing their identity is not as important as protecting children. That is not, in my mind, the attitude that has been expressed by the Department in this case.
In relation to the timeframe for compliance and indeed, appearance in this matter, noting that on 3 August I had requested intervention and have made the first of a series of section 69ZW orders, it now being
28 September, some seven weeks later, the Department is used to operating in short timeframes. By analogy, section 45 of their Act, dealing with applications to the Children’s Court for a care order, require that if the Department removes a child, they must, no later than 72 hours after the removal, take some action towards instigating a process. The Department is no stranger to dealing with things promptly.
This court, regrettably, through the Department’s lack of cooperation, has not been able to act promptly, notwithstanding that space has been created in lists on at least three occasions to accommodate the matter, all on the basis of hoping, expecting, falling just short of praying for some information from the Department that would enable a proper assessment of the risks for this baby to be determined.
Sharing of information
There is presently a real dialogue occurring through Family Pathways Networks and otherwise, regarding the sharing of information between disparate service providers, including this court, family relationship centres, family counsellors, and other services to parents. This court deals with private disputes, not public disputes, as does the Department. However, the type of issues that quite often arise in such public disputes find themselves inevitably before this court. That is the case in this matter, where there is a baby in serious risk, with two parents whom a family consultant has opined are neither capable of meeting the child’s needs nor protecting the child.
Why is the sharing of information important? Section 69ZW makes it clear, as does the explanatory memorandum to which I previously referred. We need information to make decisions. As now Murphy J of the Family Court has often opined in Independent Children’s Lawyers training, “the currency of the lawyer is admissible evidence”. We need evidence and information to make decisions. Otherwise, this court is left powerless and hindered. Protecting children is the responsibility of the Department. Accordingly, as I have indicated, there are specific provisions that require reports to them by a number of people. People can make them voluntarily and mandated reporters must. The Department is the depository of that information, a rich library of information that this court wishes to borrow but a slim volume from.
There are specific provisions within the state legislation dealing with sharing of information; in particular, chapter 16A and portions of chapter 17 of the Children and Young Persons (Care and Protection) Act. It is instructive to turn to those sections, because this court has the power to make orders under that legislation, or requests, I should say. We make orders under our Act; requests under the State Act.
Section 245A is headed as “Objects and Principles of the Chapter”, being chapter 16A, dealing with information disclosure. It indicates:
The objects of this chapter is to facilitate the provision of services to children and young persons by agencies that have responsibilities relating to the safety, welfare or wellbeing of children and young persons.
Subsection (2) reads:
The principles underlying this chapter are as follows:
(a)Agencies that have responsibilities relating to the safety, welfare or wellbeing of children or young persons should be able to provide and receive information that promotes the safety, welfare or wellbeing of children or young persons.
I wholeheartedly agree. That is what I want, and that is why section 69ZW was inserted.
(b)Those agencies should work collaboratively in a way that respects each other’s functions and expertise.
I look forward to that day.
(c)Each such agency should be able to communicate with each other agency so as to facilitate the provision of services to children and young persons in their family.
(d)Because the safety, welfare and wellbeing of children and young persons are paramount:
(i)the need to provide services relating to the care and protection of children and young persons and;
(ii)the needs and interests of children and young persons and of their families in receiving those services take precedence over the protection of confidentiality or of an individual’s privacy.
The very arguments, at least in part, that the director-general advances as to why they have no intention of complying with my orders.
Section 245B indicates that a prescribed body, for the purpose of requesting and receiving information or providing it, means any body or organisation specified in section 248(6), or that is prescribed by the regulations for the purpose of that section. I turn to regulation 7. The prescribed bodies under section 248 expressly include the Federal Magistrate’s Court of Australia, ie. this court.
Section 245D deals with requests for information:
A prescribed body –i.e., this court –the requesting agency, may request another prescribed body -i.e., the Department of Human Services –to provide the requesting agency with any information held by the other body that relates to the safety, welfare or wellbeing of a particular child or young person, or class of children or young persons.
It goes on in subsection (3):
If a prescribed body receives a request under this section, the prescribed body is required –
somewhat mandatory language
to comply with the request if it reasonably believes, after being provided with sufficient information by the requesting agency to enable the other body to form that belief, that the information may assist the requesting agency for any purpose referred to in subsection (2) –
subsection (2) refers to decisions, assessments, plans, or to initiate or conduct an investigation. One would have thought that is what a hearing of a matter involves –
or to manage any risk to a child or young person.
Based on the fact that the orders I issue combine section 60K and section 69ZW, it is exactly the purpose of requesting the information. Perhaps the Department might care to consider my order in the terms of a request under section 245D. In any event, I am going to make that request today. I will see if that produces any better result.
Section 245C deals with the provision of information:
A prescribed body –in this case, the Department of Human Services –may –[and again, there is the exercise of discretion that subsection (3) of section 69ZW involves] –provide information relating to the safety, welfare or wellbeing of a particular child or young person or class of children or young persons, to another prescribed body –in this case, this court –if the provider –the Department –reasonably believes that the provision of information would assist the recipient –this court –to make any decision, assessment, or plan, or to initiate or conduct any investigation, or to manage any risk to the child.
That is exactly why I have asked for the information. I do not need the Department to second guess whether it would assist me. Give it to me, and I will decide for myself. It is why I have asked for it. It also indicates in subsection (2):
Information may be provided under this section regardless of whether the provider has been requested.
Ie, they can give it to me without me even asking. I have not asked; I have ordered it, not once, not twice, but thrice. Their own legislation authorises them to do exactly what they now come to court, two days in a row, having engaged and presumably paid counsel to argue against.
Section 245H of the same Act, “Interaction With Other Laws”:
A provision of any act or law –[that would include the same act in which the section appears and would capture section 29] –whether enacted or made before or after the commencement of this section, that prohibits or restricts the disclosure of information, does not operate to prevent the provision of information or affect a duty to provide information under this chapter.
ie, the very argument the Department and the Director General advances is removed by section 245H.
Interestingly, notwithstanding those provisions which envisage the flow of information between prescribed agencies, including this court, section 245I deals specifically with Commonwealth agencies, and names this court:
Nothing in this chapter is to be construed as imposing a requirement on any of the following bodies:
(b)the Federal Magistrates Court of Australia –
ie, I can request information from the Department and they provide it to me. If they request it from me, it is a matter of whether I do or do not, except I would always exercise that discretion positively because I respect that the role of the Department is to protect children and it is in common with mine and the protection of children is the most fundamental and important process that either the Department or this court can engage in.
Section 248 of the State legislation, headed Provision and Exchange of Information provides.
The functions referred to in this section may be exercised by the Director General for any one or more of the following purposes:
(a)for the purposes of providing information to, or exchanging information with, a prescribed body –
this court. It goes on to indicate:
The Director General may do either or both of the following:
(a)the Director General may, in accordance with the requirements (if any) prescribed by the regulations –
I cannot locate any –
furnish a prescribed body with information relating to the safety, welfare and well-being of a particular child or young person or class of children or young persons,
(b)they may direct a prescribed body to furnish information.
They have the power, both to request and to provide. It goes on to indicate, in subsection (2):
(2)It is the duty of a prescribed body –
in this case, the Department –
to whom a direction is given to comply promptly with the requirements of the direction.
In subsection (3):
(3)If information is furnished:
(a)the furnishing of the information is not, in any proceedings before a court to be held to constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and
(b)no liability for defamation is incurred;
(c)the furnishing of the information does not constitute a ground for civil proceedings.
ie, the Department is protected. Subsection (5):
(5)A provision of any Act or law that prohibits or restricts the disclosure of information does not operate to prevent the furnishing of information (or affect a duty to furnish information) under this section.
Again, any claim for privilege in that regard – public policy or otherwise – is inconsequential. So why is it that the Department has not complied? It is put to me that that is because the exercise of power in making orders has been void as outside the terms of that which I can order. I have not accepted that argument. That, then, leaves me with the question that I did pose: why does the Department choose to take the legal technicality, rather than help to protect the safety and wellbeing of a four month old child? The police co‑operate, welfare agencies in every other State and territory of this Commonwealth co‑operate. It is peculiar to New South Wales.
I have specifically ordered that if the Department does not wish to produce documents that include notifiers that they can delete that information. Ironically, in the matter I had dealt with last week, to which I have referred, the Department did exactly that, but in response to a subpoena, not my order. How with a subpoena the Department finds themselves perfectly able to produce over 400 pages in response and take the time to delete the names of notifiers, but when I order it they simply take a legal issue and write me a letter.
This has been the attitude demonstrated by the Department towards this court and, indeed, the Family Court outside of the Magellan protocol for many years. The Department asserts that they need not produce the documents. I do not accept their submissions as regards the interpretation of section 69ZW. Northern Territory v GPAO (sic) is specifically overridden in accordance with Parliament’s intention by these amended sections. And if it is to be suggested that there remains any constitutional issue regarding the sections, although none has been raised today, then that can be done on appeal.
And in any event, as I have indicated, Northern Territory v GPAO (sic) dealt with a subpoena, not section 69ZW, which did not at that time exist, and dealt with very different legislation. And indeed, the legislation from the State that I have referred to would make it very difficult indeed for the arguments maintained in Northern Territory v GPAO (sic) to apply in this case.
State legislation does allow disclosure. Section 248, section 245H, section 29 itself allows the disclosure. Section 69ZW, subsection (3) does not preclude production. It is a choice. The Department chooses to not produce the material. They choose to waste this court’s time, the litigant’s time, the Independent Children’s Lawyer’s time and their own resources in coming to court to fight about it, rather than to do what, in my mind, would fulfil the objects and principles of their legislation to which I have referred in detail, being to co‑operate with another agency to aid in protection of a child.
It is regrettable, highly regrettable and, for this baby and, indeed, for the child I have referred to in the case decided last week, whose step‑sibling was battered by the person that this court, because of the absence of that information, had left the child with for nine weeks, (to the point that he had substantial brain damage), is as I have previously opined, attributable solely to the Department. That is a matter that, when this is debated in the public domain, the Minister and the Director General may have to answer. I will not. I will be getting on with dealing with the protection of children.
When taken as a whole, section 69ZW and State legislation would, in my mind, suggest that there is no other course that the Department could take when requested by this court to provide information than to provide it. Both pieces of legislation envisage that documents can be produced that identify the reporter. Both pieces of legislation go on to indicate – in the Family Law Act’s case, subsection (6) of section 69ZW – the action that the court is to take to then ensure that that is not put into the public domain.
I previously opined how the Department may wish to change its record‑keeping if they do not wish to produce a document with the notifier’s details. The other alternative is they can produce the documents and we will delete it for them, as subsection (6) requires us to do - happy to take on that administrative burden within our budget of some millions of dollars, compared to $1,.419 billion if that is a concern for the Department. But I want the information.
And all of the steps that I have referred to previously, particularly the issue of subpoena for individuals to attend, and it will probably be a good number of individuals who will be taken away from their duties to come here and get in a witness box and answer questions and, if they do not, to be sentenced to periods of imprisonment. That seems an awfully ridiculous waste of everyone’s time and resources, and does not in any way address this baby’s needs and protection. But for reasons best known to Department, that is the stance they have taken. I do not accept the arguments that they have advanced that would validate that stance and, accordingly, I will extend time today for compliance with the order. It is open to the Director General to appeal, should they wish. I am going to make directions regarding that as well, particularly who the parties will be to that appeal.
The information and documents are not provided, although in my mind, as I have indicated, for the above reasons, the legislation does not in any way obviate, preclude or suggest that they should not be. Is it a matter of resources? I would have thought a great many more resources have been taken up in the last 24 hours in appearances, briefing counsel and otherwise to deal with this issue than it would have taken to photocopy the 10 documents that are referred to and to give them to me.
Surely, it is not an absence of desire by the Department of Human Services to help this court? Surely it is not a desire or a lack of interest by the Department of Human Services in protecting and meeting the needs of this baby? It would be most callous of them if they did not care. As I have indicated, the court’s resources, the parties’ resources, the Legal Aid Commission’s resources – both parties and the Independent Children’s Lawyer are funded by them and expended yesterday, I would have thought, about $2000 in everyone’s appearances, let alone what the Department spent – plus the fact that I had to interrupt, as I am again today, a three day hearing to deal with this matter, such is the priority given by this court to this child – this baby, this vulnerable, at‑risk baby, not only under our legislation, but under the Department’s.
The Minister, Ms Burney, will be given notice through a copy of these reasons and I will make the appropriate order under section 121 of the Family Law Act to publish these reasons so that they can be so forwarded to her. The Director General, Ms Mason, will receive a copy directly from the court and, no doubt, also from her instructors.
In the event of an appeal the Attorney-General will be invited to participate. In the event that the Department wishes to be heard further with respect to the matter and put further submissions, I will grant them that leave but it will on condition that the Attorney-General will be invited to intervene and also make submissions.
One would hope that these issues could be dealt with as one would think outside of a Kafkaesque bureaucracy through common sense, cooperation and a focus on the needs and best interests of children. We have not achieved that yet. Hopefully, we will.
Ironically, during the course of this judgment the parties have attended with a family consultant for the second time. The family consultant has, for the second time, recommended that the Court extend an invitation to the Department of Human Services to intervene.
That there remain issues of significant risk of harm to this baby and yet we are here today, having devoted an hour and a half to squabbling about the Department producing the 10 documents that they say they hold. What a better waste of resources I could not envisage but that is the Department’s choice.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 1 October, 2010
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