State Central Authority and Blyth

[2010] FamCA 90

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BLYTH [2010] FamCA 90

FAMILY LAW – CHILDREN – Hague convention – Whereabouts of child unknown – Legal professional privilege claimed – Dominant purpose test

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

R v Bell ex parte Lees (1980) 140 CLR 141
Thomson v Thomson (1991) FLC 92-198

APPLICANT: Department of Communities (Child Safety Services) as State Central Authority

RESPONDENT: Mr Blyth

FILE NUMBER: BRC 8423 of 2009

DATE DELIVERED: 2 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 2 February 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Parrott of Crown Law

SOLICITOR FOR THE RESPONDENT: Mr Deed of Cranston McEachern Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Cranston McEachern Lawyers be requried to produce to a Registrar of this Court nominated by the Principal Registrar, any and all details contained within their files held on behalf of the Respondent Mr Blyth in relation to any bank accounts, credit cards, company accounts, real or other property, telephone numbers (whether land lines or mobiles), fax numbers any travel plans or current locations of Mr Blyth or O Blyth born … May 2009 or such other information as may assist in locating the said Mr Blyth or O Blyth.

2. The solicitor for the Respondent, Mr Peter Deed, be injuncted from, and an injunction be issued restraining Mr Deed from, disclosing to the father and/or his family, friends and associates any details of these orders or details of the hearing of the Application in a Case filed on 22 January 2010.

3. By way of mandatory injunction Mr Deed is directed to:

   a)advise the members and employees of his firm that an order has been made in terms of paragraph (2) of these orders; and

   b)instruct the members and employees of his firm to not themselves disclose to the father and/or his family, friends and associates any details of these orders or details of the hearing of this Application in a Case filed on 22 January 2010.

4. Any information provided to the Registrar of this Court by Mr Deed or Cranston McEachern Lawyers pursuant to paragraph (1) of these orders, shall be released by the said Registrar to the legal representative of the Central Authority upon a request being made by them.

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Blyth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8423 of 2009

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) as STATE CENTRAL AUTHORITY

Applicant

And

MR BLYTH

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Mushin J made orders requiring the father of O Blyth born in May 2004 to be returned to Finland for the purpose of giving effect to the orders otherwise made by his Honour.  That order was made under the arrangements existing pursuant to the Hague Convention in respect of international child abduction.

2. Subsequent to the making of that order - which was, it ought be said, made with the consent of the father - negotiations were initiated with a view to there being a travel itinerary for the return of the child satisfactory to the Central Authority.  On 16 November 2009 the father forwarded a new itinerary for that purpose which saw him departing Australia the following day, 17 November 2009.

3. As it turned out, on 19 November 2009 the father departed Hong Kong with the child, travelling to Thailand.  The current whereabouts of the child are unknown.  The father, to the extent that the child has not been returned to Finland, is plainly in breach of an order made with his consent designed to effect that event. 

4. An affidavit of Ms Field, who is a senior legal officer with the Commonwealth Attorney-General’s Department, filed on 22 January 2010 deposes to information received from the Finland Central Authority on 23 November 2009 advising that the mother had received a letter or email from the father that “made some allegations and referred to him staying in Hong Kong or Thailand.”  In an email dated 15 December 2009 the mother had said: 

   [The father] called me several times by phone and was threatening me going into a ‘safe place’ today or tomorrow unless I did what he is asking me to do.  This obviously means that he will go into hiding.

5. On 17 December 2009 the Australian Central Authority received an email from Interpol in Helsinki.  That email advised that the father and mother were in contact with each other by email between 12 and 14 December 2009.  By that same email Interpol Helsinki advised:

   According to our IT crime section all of the emails of [Mr Blyth] have obviously been sent from Bangkok.

6. By an application in a case filed on 22 January 2010 the Central Authority seeks orders addressed to the solicitor for the father, Mr Deed, who remains on the record for him.  The orders sought by the Central Authority have been condensed into draft orders, a copy of which have been provided to Mr Deed. 

7. In terms, the orders sought are:

   (1)That Cranston McEachern Lawyers ... be required to produce to the Registrar of the Family Court of Australia at Brisbane any and all details contained with their files held on behalf of the respondent, [Mr Blyth], in relation to any bank accounts, credit cards, company accounts, real or other property, telephone numbers (whether landlines or mobiles), fax numbers, any travel plans or current locations of Mr [Blyth] or [O Blyth] or in form A 2009 or such other information as may assist in locating the said [Mr Blyth] or [O Blyth];

   (2)That Mr Peter Deed, partner of Cranston McEachern Lawyers ... be required to attend at the Family Court of Australia and give evidence and any details that may be held by him in any personal files or records or to his knowledge in relation to any bank accounts or credit cards, company accounts, real or other property, telephone numbers (whether landline or mobiles), fax numbers or any travel plans or current locations of Mr [Blyth] or [O Blyth] or in form A 2009 or such other information as may assist in locating the said [Mr Blyth] or [O Blyth].

   (3)That Mr Peter Deed and other partners and employees of the firm Cranston McEachern be injuncted from and an injunction is hereby issued preventing Mr Deed and other partners and employees from disclosing to the respondent, Mr [Blyth], his family friends and associates, any details of the results of this application.

8. Mr Deed appears before me this morning and had earlier filed an affidavit on 1 February 2010.  That short affidavit deposes to the fact that the father is a client and that Mr Deed considers himself:

   Duty bound to claim legal professional privilege on behalf of my client until such privilege is abrogated or waived by [Blyth].  I claim this on behalf of [Blyth] as I do not have instructions from him to waive his privilege.

9. Mr Deed goes on to depose: 

   I have written files in my possession concerning the matter before this court containing information, documents and records provided to me by [Blyth] during the course of these proceedings.

10. It is plain, then, that Mr Deed does not have instructions to waive any privilege which vests in the father by reason of the confidential relationship existing between Mr Deed as his solicitor and the father as the client. 

11. In those circumstances Mr Deed, understandably, takes the point that he ought claim all such privilege as is available to his client unless a court orders him to act otherwise than in a manner which, he apprehends, is consistent with his client maintaining the claim of privilege.

12. A preliminary point arises and is addressed in written submissions prepared by Counsel for the Central Authority, Mr Parrott. Mr Parrott says that it is arguable:

    …that Regulation 14A is ‘limited to further applications while the substantive matters are to be determined.’  Mr Parrott goes on to argue, however, that the provisions should be given a wider interpretation to allow applications to be made to assist where necessary in enforcing the substantive orders.

13. It seems to me, without there being full argument on the point, that it is likely that this court has inherent jurisdiction to make such orders as might be necessary in order to enforce, or further carry into effect, substantive orders made by it. 

14. That is all the more so, in my view, where the subject matter of those orders is something as crucial and important as the location of a child who has, on the face of the material, been taken across international borders contrary to an earlier order of the court.

15. However, whether or not that is correct, the order made on 6 November 2009 included a provision that the Central Authority can…“make such arrangements as are necessary to facilitate and ensure the return of the child in accordance with this order.”  It seems to me that the specific order is wide enough to encompass precisely the sort of application made by the Central Authority for determination before me today.

16. In R v Bell ex parte Lees (1980) 140 CLR 141 and in the decision of the Full Court of this court in Thomson v Thomson (1991) FLC 92-198 the issue of the collision between – or the potential collision between legal professional privilege as it was then called and the desirability of obtaining information about a missing child was addressed.

17. In the High Court decision, Gibbs, Stephen and Murphy JJ held that the general principle concerning communications made confidentially between a client and his professional advisor for the purpose of obtaining legal advice or assistance were privileged from disclosure was subject to exceptions, and those exceptions included the welfare of a child.  The High Court said that “a higher public interest may arise,” that is, a public interest in securing the welfare of a child, and ensuring that an order made in respect of the welfare of a child was complied with and not flouted.

18. Put in other language, the paramountcy of the best interests of the child cab take precedence over the legal professional privilege attaching to a client. 

19. Such a position can be seen to be consistent with the general law that legal professional privilege cannot be called in aid of an illegality or an improper purpose. 

20. Subsequent to each of the decisions just referred to, the Commonwealth Parliament passed the Evidence Act 1995. What was previously referred to as “legal professional privilege” is now referred to as “client legal privilege.” That privilege is dealt with in division 1 of part 3.10 of that Act. 

21. The Act can be seen to enshrine what had, previously, in common law discussions, been known as the “dominant purpose test,” and provides that confidential communications passing between a client and his or her solicitor for the dominant purpose of the solicitor providing legal advice to the client is privileged. 

22. Section 121 deals with the loss of client legal privilege. Section 121(2) provides:

    This division does not prevent the adducing of evidence if, were the evidence not adduced, the court would be prevented, or it could reasonably be expected that the court would be prevented, from enforcing an order of an Australian court.

23. It seems to me plain that the provisions of the Act necessitate a court being satisfied that, for the privilege to attach, confidential information should be provided by a client to a solicitor for the dominant purpose of receiving legal advice. 

24. It is not at all clear to me how, in this particular case, the provision to Mr Deed by the father of information relating to his bank accounts, credit cards, company accounts, real property, telephone numbers, and fax numbers, was given for the dominant purpose of Mr Deed providing the father with legal advice.

25. Whilst I am prepared to accept that each and all of those pieces of information was given to Mr Deed confidentially, by reason of the relationship between solicitor and client being redolent of confidence generally, there is little or no evidence before me from which I could conclude that the information was provided for the dominant purpose of providing legal advice. By contrast, it can readily be inferred, it seems to me, that the father providing to Mr Deed details of “any travel plans or current locations of either him or the child the subject of the proceedings,” is redolent of confidential information being given for the purpose of obtaining legal advice.

26. In deciding the current application I am content to proceed on the basis, favourable to the father, that all of the information, including the earlier information, is, in fact, the subject of legal professional privilege, even though, in respect of the first group of information, I have, as I have said, some considerable doubts about whether it is. 

27. Assuming, then, that the information required is both confidential and subject to the privilege, the issue becomes whether that privilege should be lost in the circumstances of this case. 

28. The evidence plainly reveals, and unsurprisingly, Mr Deed does not submit to the contrary, that the actions of the father are prima facie in flagrant breach of a court order.

29. That court order pertains, as I have said, to a very significant and serious matter, that is, the travel across international boundaries by a child.  The perniciousness of international child abduction has been commented on by all courts, including by the High Court of Australia.  The summary procedures, to the extent that that expression can continue to properly be used, provided to courts who, by domestic legislation, embrace the provisions of the Convention on International Child Abduction, seek to underline and reinforce just how important this issue is.

30. The procedures provided for are designed to facilitate the return of children to their place of habitual residence, so that issues in respect of their co-parenting can be determined by those courts. 

31. It seems to me, as a matter of principle, irrespective of section 121(2), that this court would be well disposed to abrogating the privilege in circumstances where the evidence revealed that what the High Court referred to as the “higher public interest”, in this case the ascertainment of a child’s whereabouts, is an issue.

32. The welfare of this child requires the parenting issues in respect of him to be determined by a court in accordance with the law. 

33. Unilateral actions by the father ought not impede that process. Consistent with long-standing principle, actions that are on their face contrary to the law, ought not be assisted by claims for client legal privilege, the foundations for which have a clear purpose unconnected with improper or illegal behaviour. 

34. Further, and in any event, it seems to me that in terms of section 121(2), this court would be prevented, or could reasonably expect to be prevented, from enforcing the order of the court made on 6 November 2009 if any client legal privilege is not lost.

35. In my view, section 121(2) of the Evidence Act (1995) plainly applies to the circumstances currently confronting the court.  Further, and in any event, it seems to me that the maintenance of the privilege, (which again, favourably to the father, I have assumed for the purposes of this application), ought not be seen as permitting the father to continue to either act contrary to the terms of the specific order or contrary to the law generally. 

36. Accordingly, it seems to me that there is, in the circumstances of this case, a solid evidentiary foundation, and a solid foundation in principle, for making orders of the type sought by the Central Authority.

37. Having reached that conclusion, I turn then to consider the specific terms of the orders. 

38. Paragraph 2 seeks order against Mr Deed personally in respect of information possessed by him in respect of the matters the subject of it.  I enquired of Mr Deed whether he had any information of any of the types or descriptions referred to in that order that was not otherwise contained on his files, and therefore encompassed within the terms of order 1. 

39. Mr Deed who owes independent obligations to this court as a solicitor of this court, indicated from the bar table, that he had no such information. I accept his unsworn information, consistent with his obligations as a solicitor just referred to. For that reason, I decline to make order 2. 

40. Mr Deed, in opposing the application generally, argues two things.  First, he says that the terms of order 1 are, in effect, too wide and, as a result, are, in effect, oppressive.  Secondly, he argues that the information, or the bulk of the information sought, can be obtained fairly readily from other sources.  

41. If there were good reasons to suggest equivocation about whether client legal privilege should be lost, then, in my view, the matter just referred to might be a highly relevant matter to be considered in respect of the exercise of a discretion by the court as to whether to abrogate the privilege.  In my view, however, no such equivocation occurs in this case, and I reiterate the importance of the matters earlier referred to in my determination that the privilege should be lost.  It seems to me in those circumstances, that the alleged ease by which the information might be obtained from other sources, is irrelevant.

42. In any event, Mr Parrott argues that obtaining the information from those other multiple sources is likely to be time consuming and costly to the Central Authority. If I am wrong in my conclusion that, in the circumstances of this case the matter submitted by Mr Deed is irrelevant, then the exercise of my discretion, weighs strongly in favour of the information being provided from a single source where it is likely to be found. 

43. The second of the objections taken by Mr Deed refers to the width of the order and it is suggested that, by reason of its width, it is oppressive.

44. There is nothing on the face of the order which suggests to me that any particular difficulties or concerns would attend the provision of the specific information sought in the order by Mr Deed’s firm. 

45. Mr Deed makes the submission in general terms and does not point to any specific difficulty or oppressiveness attached to the provision of the information.  Indeed, the argument about the breadth of the order and its potential oppressiveness seemed to me to be inextricably linked to the second argument that the information was available from other sources.

46. The information sought in respect of “any travel plans or current locations” is addressed by Mr Deed saying that instructions were provided to the Central Authority about each of those matters during the course of the earlier proceedings during which, as I earlier indicated, an itinerary was agreed between the Central Authority and the father. 

47. It seems to me that there is the potential for there to be a distinction between travel plans or current locations provided by a client’s solicitor to an opposing party, and other travel plans or potential travel plans or other current locations or potential current locations that might have been advised by the solicitor to the client but not forming part of the instructions provided to the opposing party.

48. It is appropriate, by reference to the general purpose of the Hague Convention and the legislation bringing it into effect in this country, and the paramountcy of the best interests of the child the subject of the original orders, that all such information as might be available to Mr Deed from the father that might assist in the location of the child ought be provided. 

49. I am perfectly content, then, to leave the orders in their current form which, in that form, are intended to have general application in the manner that I have just described. 

50. The third order sought by the Central Authority seeks injunctive relief addressed to Mr Deed and, effectively, those at his firm, preventing those legal practitioners from advising the father of the terms of the order.

1. The intention behind the order is plain.  If information provided by Mr Deed or, more accurately, from Mr Deed’s file, is such so as to allow steps to be taken by the relevant authorities for the child and/or the father to be located and dealt with according to law, then if information is provided to the father by Mr Deed or anyone else, any such processes may be frustrated. 

2. The affidavit and submissions made by the Central Authority do not suggest that Mr Deed, or any member or employee of his firm would, in any way, act, or purport to act in any improper way. However, it seems to me important to emphasise that Mr Deed might, in fact, frustrate any potential action by the relevant authorities, not by any impropriety but, rather, by the compliance with his duties as a solicitor.  It is plain that a solicitor is bound by a number of obligations by reason of being an officer of the court.  So, too, a solicitor is bound by a number of other ethical obligations, including, obviously, an ethical obligation to not in any way, shape or form assist in any unlawful actions. 

3. But, within those ethical and legal confines, a solicitor is obliged to act solely in his client’s best interests. There exists at least the potential that a solicitor might come into possession of information, such as what the Central Authority intended to do, or the like, which, by reason of obligations owed by a solicitor to his client, the solicitor might consider himself obliged to pass on to that client for so long as the retainer between solicitor and client continued to exist. 

4. I emphasise that the passing on of that information would, of course, need to be consistent with the ethical and legal obligations owed by a solicitor.  But it does not seem to me to be outside the bounds of possibility that a solicitor could be in the position of acting perfectly lawfully and ethically but, nevertheless, be obliged by reason of the solicitor’s obligations to the client to pass on information of the type that might jeopardise any potential actions to be taken by the authorities as a result of the information received about the location of the child or the father. 

5. Again, in the context of this relief, it seems to me important to emphasise – and I make it plain that the matter is considered of paramount importance by me – that the welfare of this child has a central place in these proceedings and consider orders designed to have the child returned to his place of habitual residence, where the courts of that country might deal with any parenting applications, are vital to his best interests.

6. It seems to me that I ought predominate O’s best interests in considering the application for injunction as much as I should predominate those best interests in respect of any other aspect of the case. 

7. In its current form, the injunction might be seen to bind persons who haven’t been heard in these proceedings.  I accordingly propose to grant an injunction, but to grant it in slightly different terms to those sought by the minutes of order handed up by counsel for the Central Authority this morning.

8. I propose to issue an injunction in these terms:

   That the solicitor for the father, Mr Peter Deed, be injuncted and an injunction is hereby issued restraining Mr Deed from disclosing to his client, the father, or any members of the father’s family or his friends or associates or any other member or employee of his firm the terms of the orders made by me today, my reasons for decision or the potential for action to be taken by the central authority as a result of these orders.

   The order will, though have a side so as to facilitate the communication by him of the terms of this order:

   Save for the purpose of Mr Deed advising any member or employee of his firm of the fact that the terms of the orders and the potential for action to be taken by the Central Authority, cannot be disclose by them.

9. I will frame the injunction so that Mr. Deed is injuncted from, and an injunction be issued, restraining him from disclosing to the father and his family, friends and associates, any details of the orders, or the results of this application, firstly.  And secondly, by way of mandatory injunction direct you to advise the members and employees of your firm that an order has been made to that effect, binding you, directing you to instruct them that they are not to disclose etcetera.

I certify that the preceding forty (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  15 February 2010