Stankic and Cagnani & Anor
[2016] FamCA 1002
•24 November 2016
FAMILY COURT OF AUSTRALIA
| STANKIC & CAGNANI AND ANOR | [2016] FamCA 1002 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where leave is sought by the wife to inspect a Federal Circuit Court file – Where the parties to the Federal Circuit Court proceedings include the husband’s brother – Where the husband’s brother objects to leave being granted – Whether the Family Court has jurisdiction to grant leave to inspect a Federal Circuit Court file – Where the Court finds legislative amendments to the administration of the courts does not affect their judicial independence – Where the Court finds it appropriate for leave to be sought from the Federal Circuit Court instead – Application dismissed. |
Courts Administration Legislation Amendment Act 2016 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth) ss 5, 8, 89(1), 96A
Family Law Rules 2004 (Cth) r 24.13
Federal Circuit Court Rules 2001 (Cth) r 2.08
Echlin & Kagan [2011] FMCAfam 272
| APPLICANT: | Ms Stankic |
| FIRST RESPONDENT: | Mr L Cook |
| SECOND RESPONDENT | Mr Cagnani |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Baker |
| FILE NUMBER: | SYC | 5204 | of | 2013 |
| DATE DELIVERED: | 24 November 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | In chambers by way of written submissions |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Macpherson & Kelley Lawyers |
SOLICITOR FOR THE FIRST RESPONDENT: | AJL Legal |
| SOLICITOR FOR THE SECOND RESPONDENT: | Vizzone Ruggero Twigg Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Peter Baker Solicitor |
Orders
The wife’s application for leave to inspect the Federal Circuit Court file of Morton & Cook, file number SYC3710/2013, is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stankic & Cagnani and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5204 of 2013
| Ms Stankic |
Applicant
And
| Mr L Cook |
First Respondent
And
| Mr Cagnani |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application by Ms Stankic (“the wife”) for leave to inspect a file held by the Federal Circuit Court of Australia in the matter of Morton & Cook, file number SYC3710/2013 (“the Federal Circuit Court proceedings”). The application is consented to by Ms Morton, who was the applicant in the Federal Circuit Court proceedings. The application is, however, opposed by Mr L Cook (“the first respondent”), who was the respondent in the Federal Circuit Court proceedings.
The circumstances in which the application to inspect the Federal Circuit Court file has been made is that, subsequent to the breakdown of her marriage to Mr Cagnani (“the husband”), the wife has commenced proceedings in the Family Court seeking parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) and property orders pursuant to Part VIII of the Act. The connection between these proceedings and the Federal Circuit Court proceedings is the fact that the first respondent is the brother of the husband in these proceedings.
At the request of the wife, on 10 June 2016, I made the following orders:
4.Subject to order 5 below, the parties are granted leave to inspect file proceedings number SYC3710/2013 in the matter of [Morton & Cook].
5. Order 4 above is stayed for a period of 14 days from todays’ date.
6.The parties and Independent Children’s Lawyer are granted liberty to apply on 48 hours’ notice to my chambers and to the other parties only in respect to Order 4 above.
…
THE COURT NOTES THAT:
…
B. The wife and her legal representative undertake to that any information attained as result of the inspection of the file SYC3710/2013 will only be used only for purposes of these current proceedings.
On 16 September 2016 I made the following orders:
1. Subject to the following conditions set out below, I grant the parties’ legal representatives only inspection access only to the file of [Morton & Cook] proceedings number SYC3710/2013 Those conditions are:
a. Within seven (7) days the solicitors for the wife is to notify Mr L Cook of these provisional Orders.
b. In the event that Mr L Cook has an objection to that inspection occurring, he is to notify my chambers within a further seven (7) days.
c. In the event of Mr Cagnani so objects, the wife will file short written submissions in respect to seeking access to the file.
d. Mr Cagnani will then have a further seven (7) days to file any written submissions in reply.
e. In the event Mr Cagnani wishes to express his objection in open Court, he should make such a request in his written submissions.
Those orders were made on an assumption that the Court (that is, the Family Court) has jurisdiction to grant the access sought by the wife. As will be discussed, having considered the submissions and supplementary submissions of the wife and the first respondent, I have concluded that the Family Court is in fact without jurisdiction to make the orders, as sought by the wife, for access to a file of the Federal Circuit Court.
Initial Submissions
The wife submitted that she has a “proper interest” in inspecting the documents contained in the Federal Circuit Court file as contemplated by r 24.13(1)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) for the following reasons:
a)On 29 September 2013 there was an explosion in the garage of the husband and the wife’s home at Suburb J
b)The first respondent and his friend, Mr N, were severally injured in the explosion;
c)The explosion was reported in the media as being caused by a criminal activity being operated from the garage;
d)The husband was living in the property at the time of the explosion as the wife had vacated the property on 15 March 2013 and the husband has denied any involvement in these activities.
It was submitted that the Federal Circuit Court file is relevant to the substantive property and parenting proceedings which are listed for final hearing to commence on 9 January 2017 for the following reasons:
a)The husband has elected not to file any evidence in relation to the circumstances surrounding the explosion at the home from the first respondent and/or Mr N. In circumstances where the first respondent was a party to the proceedings, and a live issue between the parties relates to the possible criminality of the activities at the home leading to the explosion, it must be regarded as significant and central to the consideration of the Court in the present proceedings to have all available evidence before it, particularly insofar as the parenting proceedings are concerned;
b)To the extent that there is evidence filed by the first respondent, an expert report and/or an affidavit of the husband filed in support of the first respondent’s case in the Federal Circuit Court proceedings, this evidence should be made available in the present proceedings.
As noted, the application has been opposed by the first respondent, who was the respondent in the Federal Circuit Court proceedings, on the basis that the wife does not have a proper interest in the Federal Circuit Court proceedings as contemplated by r 24.13(1)(c) or, if applicable, r 2.08 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) for the following reasons:
a)Merely being a sister-in-law, owner of property or partner of the first respondent’s brother is not sufficient to show a proper interest;
b)There must be a vested or legal interest in the proceedings the subject of the application;
c)The mere fact that the husband has not put into evidence any circumstances surrounding the explosion at his home is not a basis for allowing access to the subject file;
d)A newspaper report alleging criminal conduct of some sort and the subsequent denial by the husband are not matters which would satisfy the Court that the wife has a valid purpose for access to the subject file in terms of r 24.13;
e)The fact that the wife seeks access to the Federal Circuit Court file in respect to an alleged criminal activity does not justify the wife having access to the entirety of the file.
The first respondent submitted that providing the wife with access to the Federal Circuit Court file would be an invasion of the first respondent’s privacy and further, submitted that the information now sought by the wife – including evidence filed by the husband and experts in the Federal Circuit Court proceedings – is for “an alternative purpose”.
In respect to the issue of privacy and alleged alternate motives, the wife referred to the decision of the High Court (Hayne, Heydon and Crennan JJ) in Hearne v Street, where their Honours said:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[1]
[1] (2008) 235 CLR 125 at 154[96].
Supplementary Submissions
On Wednesday 9 November 2016, my Associate sent on my behalf the following email to the parties and the first respondent:
Dear Practitioners,
Re: [Stankic & Cagnani] SYC575/2013
We refer to the submissions received by Chambers regarding the wife’s application to have access to the Federal Circuit Court file of [Morton & Cook] SYC3710/2013.
We note that the submissions of both the applicant and the objector have assumed that the relevant rule for the Court to consider is Rule 24.13 of the Family Law Rules 2004.
We note that access is sought to a file held in the registry of the Federal Circuit Court of Australia.
In those circumstances his Honour invites the parties and the objector to provide a brief supplementary submission to address the following questions:
1. Is the applicable rule in respect to the wife’s application Rule 2.08 of the Federal Circuit Court Rules 2001?
2. If that is the case, does the Family Court have jurisdiction to consider the wife’s application for access to the Federal Circuit Court File?
His honour [sic] requests the parties provide their response to these questions by 4.00 pm on 16 November 2016.
By way of summary, the first respondent noted that the wife is seeking access to a file held by the Federal Circuit Court in respect to persons who are not parties to the present proceedings before the Family Court. In those circumstances, it was submitted that application should be made to the Federal Circuit Court in accordance with r 2.08 of the FCC Rules.
The wife, on the other hand, argued that the Family Court had jurisdiction to make the orders sought by the wife pursuant to r 24.13(1)(c) of the Rules because “there is no registry of the Federal Circuit Court of Australia but there is a combined registry of the Family Court of Australia and the Federal Circuit Court of Australia”. This is because of what was described as the “Combined Registry Initiative” which, it was submitted, has resulted in the Sydney “Family Law Courts Registry” of both the Family Court and the Federal Circuit Court.
With a view to explaining the background to those administrative changes, the submissions of the wife referred to:
a)A report of the Australian National Audit Office titled “Client Service in the Family Court of Australia and in the Federal Magistrates Court” Report No. 46, 2003 – 2004 (“the Audit Report”) which was presented to the President of the Senate and Speaker of the House of Representatives on 20 May 2004;
b)A Report of the House Of Representatives’ Joint Standing Committee of Public Accounts and Audit (“the Joint Committee”) reviewing the Audit Report which was tabled on 7 November 2005;
c)Progress Reports to the Joint Committee provided by the Family Court on 21 November 2005 and in May 2006 and October 2006;
d)A response from the then Minister for Justice and Customs to a question without notice in the Senate Chamber of the Parliament of Australia on 9 August 2006;
e)The arrangement made between the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court made pursuant to s 90 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCC Act”) which, it was submitted, took effect on 12 April 2013.
Reference was also made to the decision of O’Sullivan FM in Echlin &Kagan [2011] FMCAfam 272 where access was granted to the file of proceedings in the Family Court between Ms P and Mr Echlin. Specifically, it was argued that if a then Federal Magistrate had power to give a party in proceedings before the then Federal Magistrates Court access to a Family Court file, then the reverse must necessarily apply.
Consideration
As a finding that the Family Court is without jurisdiction to make the orders sought by the wife will dispose of this application, I will deal with that issue first.
As noted, the initial submissions of both parties submitted that this matter should be determined in accordance with r 24.13 of the Rules. That rule provides:
Searching court record and copying documents
(1) The following persons may search the court record relating to a case, and inspect and copy a document forming part of the court record:
(a) the Attorney-General;
(b) a party, a lawyer for a party, or an independent children's lawyer, in the case;
(ba) if the case affects, or may affect, the welfare of a child--a child welfare officer of a State or Territory;
(c) with the permission of the court, a person with a proper interest:
(i) in the case; or
(ii) in information obtainable from the court record in the case;
(d) with the permission of the court, a person researching the court record relating to the case.
(1A) An arbitrator conducting an arbitration relating to a case may search the court record relating to the case, and inspect and copy a document forming part of the court record.
(2) The parts of the court record that may be searched, inspected and copied in accordance with subrule (1) or (1A) are:
(a) court documents; and
(b) with the permission of the court--any other part of the court record.
(2A) A permission:
(a) for paragraphs (1)(c) and (d) and (2)(b)--may include conditions, including a requirement for consent from a person, or a person in a class of persons, mentioned in the court record; and
(b) for paragraph (1)(d)--must specify the research to which it applies.
(3) In considering whether to give permission under this rule, the court must consider the following matters:
(a) the purpose for which access is sought;
(b) whether the access sought is reasonable for that purpose;
(c) the need for security of court personnel, parties, children and witnesses;
(d) any limits or conditions that should be imposed on access to, or use of, the court record.
(4) In this rule:
"court document" includes a document filed in a case, but does not include correspondence or a transcript forming part of the court record.
Note 1: Section 121 of the Act restricts the publication of court proceedings.
Note 2: Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004.
However, as noted, the documents to which access is sought are documents concerning a matter that has been heard and determined by the Federal Circuit Court. In those circumstances, the relevant rule that applies in respect to an application to search the records of the Federal Circuit Court is r 2.08 of the FCC Rules. Rule 2.08 essentially replicates r 24.13 of the Rules.
In those circumstances, the leave sought by the wife in these proceedings is not leave that this Court is empowered to give. The leave to inspect must, instead, be sought from the Federal Circuit Court.
The Federal Circuit Court of Australia is established by the FCC Act. Section 8 of the FCC Act relevantly provides:
Federal Circuit Court of Australia
(1) The federal court known immediately before the commencement day as the Federal Magistrates Court is continued in existence as the Federal Circuit Court of Australia.
(3) The Federal Circuit Court of Australia is a court of record and is a court of law and equity.
(4) The Federal Circuit Court of Australia consists of the following:
(a) a Chief Judge;
(b) such other Judges as from time to time hold office in accordance with this Act.
(5) The person holding office as the Chief Federal Magistrate under this Act immediately before the commencement day continues to hold that office under the title of Chief Judge of the Federal Circuit Court of Australia.
(6) A person holding office as a Federal Magistrate (other than Chief Federal Magistrate) under this Act immediately before the commencement day continues to hold that office under the title of Judge of the Federal Circuit Court of Australia.
Note: The Parliament may create federal courts under Chapter III of the Constitution.
Section 89(1) provides:
The Chief Judge is responsible for managing the administrative affairs of the Federal Circuit Court of Australia.
The documentation referred to in the submissions of the wife predates the Courts Administration Legislation Amendment Act 2016 (Cth) (“the Courts Administration Act”). The Courts Administration Act designates the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia as a single administrative entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth). The Courts Administration Act has not, however, disturbed the independence and autonomy of each court. Indeed, in the case of the Federal Circuit Court, it has strengthened it.
This is made clear in the Second Reading Speech of the Minister introducing the Bill on 2 December 2015. Relevantly, the Minister said:
As the Bill solely deals with the administration of the courts, it will have no impact on the judicial and functional independence of each court. The Bill maintains and supports the separate standing of each of the courts concerned.[2]
[2] Parliamentary Debates, Senate, 2 December 2015 (Senator Scullion), page 9665.
Under the subheading “Merged model and maintaining courts’ independence”, the Minister said that “each court will remain independent in their core functions and will not be subject to the control of another court”.
In expanding upon that, the Minister further said:
The Bill is directed to the organisation and administration of the courts. It, of course, maintains the protection of the judicial and functional independence of the courts in accordance with the Constitution, while promoting their effective management.
Access to justice for court users will not be affected. Each court will maintain its separate and distinct judiciary, with no changes made to the courts' jurisdiction. Therefore, there will be no loss of family law or general federal law expertise across the courts.
The Bill consists of a carefully designed governance structure to preserve the autonomy of the heads of jurisdiction in relation to their own courts. Heads of jurisdiction will retain responsibility for managing the administrative affairs of their respective courts (excluding corporate services).
The separate and independent standing of each court will be further supported through replacing the position of joint Chief Executive Officer (CEO) of the Family Court and Federal Circuit Court with separate CEOs for each court. This will ensure each head of jurisdiction has a dedicated CEO to assist in managing the administrative affairs of their respective court.[3]
[3] Ibid.
It is noted that, relevantly, the Courts Administration Act amended the FCC Act by:
·Inserting into s 5 the definition of Chief Executive Officer for the Federal Circuit Court which includes the role of the Principal Registrar; and
·Inserting a new s 96A that establishes the position of a Chief Executive Officer and Principal Registrar of the Federal Circuit Court of Australia.
Accordingly, the analysis referred to in the wife’s submissions refers to the situation predating the current administrative structure of the Federal Circuit Court which, as I have noted, was altered by the Courts Administration Act. Specifically, the Chief Executive Officer of the Family Court is no longer also the Chief Executive Officer of the Federal Circuit Court.
It is also noted that Echlin & Kagan (supra) predated the Courts Administration Act. Further, it does not appear that O’Sullivan FM in that matter was addressed on any jurisdictional issue relating to the independence of the two courts.
Accordingly, I find that this Court is without jurisdiction to make the orders sought by the wife. A request for leave to inspect the file held by the Federal Circuit Court must be made to that court. The wife’s application to inspect the Federal Circuit Court file is therefore dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 24 November 2016.
Associate:
Date: 24 November 2016
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