Stoddard and Prescott

[2011] FamCA 694

FAMILY COURT OF AUSTRALIA

STODDARD & PRESCOTT [2011] FamCA 694

FAMILY LAW – PROCEDURE – access to court records

Family Law Act 1975 (Cth)

APPLICANT: Mr Stoddard

RESPONDENT: Mr Prescott

FILE NUMBER: ML 8904 of 1998

DATE DELIVERED: 26 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Beale

SOLICITOR FOR THE APPLICANT: Victorian Government Solicitor's Office

COUNSEL FOR THE RESPONDENT: Mr Hargreaves

SOLICITOR FOR THE RESPONDENT: Tony Hargreaves & Partners

Orders

1. That upon the condition that the applicant and the respondent in these proceedings, including any officer engaged in the prosecution of the respondent, receiving any application by persons other than the respondent and the Crown in right of the State of Victoria to release for inspection or publication of the documents hereafter, opposing the release or publication of the said documents, the Registry Manager of the Family Court of Australia shall release to the applicant the following:

   (a)the two affidavits of the respondent filed 3 October 2000;

   (b)the affidavit of Dr B filed 23 October 2001; and

   (c)the affidavit of Dr C filed 23 October 2001,

   for the purposes of their use in any prosecution proceedings associated with the respondent.

2. That otherwise, the outstanding application filed 20 July 2011 is dismissed.

3. That the reasons for these orders be transcribed and be made available to both parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ML 8904  of 1998

Mr Stoddard

Applicant

And

Mr Prescott

Respondent

REASONS FOR JUDGMENT

1. In the Judicial Duty List on 26 July 2011, I made orders which are published above.  I indicated at the time that I would give reasons for those orders.  These are those reasons.

2. On 20 July 2011 an application was filed by Mr Stoddard who is an officer of Victoria Police.  Mr Stoddard is responsible for the care and management of criminal proceedings against Mr Prescott.

3. Mr Stoddard has charged Mr Prescott with offences relating to a number of female patients whom he is said to have infected with Hepatitis C during medical procedures in 2008 and 2009 at a metropolitan day surgery.

4. In his affidavit in support of the application, Mr Stoddard set out what he understood the prosecution had to prove.  Mr Stoddard had previously been given permission to inspect the court file between Mr Prescott and his now late wife Ms D.  Presumably as a consequence of reading those documents, Mr Stoddard sought permission to have access to the original affidavit material both as to documents sworn by Mr Prescott but also affidavits attaching reports from two medical practitioners in relation to their assessments of Ms D.

5. At the hearing before me, Mr Beale appeared on behalf of Mr Stoddard and Mr Hargreaves appeared on behalf of Mr Prescott.

6. The allegations against Mr Prescott are serious.  According to Mr Stoddard, Mr Prescott has denied that he knew he was or might have been Hepatitis C positive at a particular time or that he knew that his former wife Ms D was similarly Hepatitis C positive. 

7. What Mr Stoddard seeks to do is have access to the documents insofar as they may be relevant to those prosecutions.

8. Rule 24.13 of the Family Law Rules 2004 provides for the Court to give persons who have a proper interest in a case, access to the court record. Rule 24.12 also provides for a court to permit removal of the documents from its file.

9. Rule 24.13(2) provides that permission may be given for the searching of the Court record on conditions.

10. There can be no doubt that Mr Stoddard has no interest in the documents other than as may be relevant to the prosecution proceedings.  As earlier mentioned, the allegations against Mr Prescott are serious and in those circumstances, it is reasonable to provide whatever assistance necessary to ensure that justice is done for all persons including Mr Prescott.  The Rules also provide for the Court to consider the need for security of parties and children as well as what limits ought to be made in respect of the use of the Court’s records.

11. I was informed that Ms D is now deceased but there are children of the relationship who currently live with Mr Prescott.  The circumstances of the background between Mr Prescott and the late Ms D makes tragic reading.  Protection for the children of that relationship is important just as much as the community would expect the Court to provide assistance in relation to a prosecution.

12. Mr Hargreaves pointed out his client’s concern that the case has achieved considerable media notoriety and upon the presentation of the prosecution’s brief of evidence, it was conceivable that media outlets might seek access to it.  I expressed the concern at the time that such material as was sought by Mr Stoddard contained material concerning the late Ms D which may also affect her children.  The publication of those details is not a matter for this Court insofar as the information may affect the prosecution of Mr Prescott.

13. Section 121 of the Family Law Act 1975 (Cth) (“the Act”) provides specific and serious offences for persons who publish any account of proceedings under the Act which identify a party to the proceedings or a person who is associated with those proceedings. An exception to that prohibition lies in the communication to persons concerned in proceedings in any court.

14. Because of the concerns arising out of s 121, I sought agreement from both parties that in the event that any media application was made for the release of those documents for public interest or publication purposes, each of them, including any agent on behalf of the Crown in the right of the State of Victoria, would oppose such application. Each party agreed with that course of action. Out of an abundance of caution, I therefore point out that I am not restricting any court releasing such information to any media outlet but rather restricting the use to which it could be made by both Mr Prescott and his prosecutors. I am not in any way restricting any other judicial officer nor should I.

15. In respect of the objection to the release maintained by Mr Prescott on the grounds of relevance, it is my view that issues associated with the admissibility of this evidence are clearly matters not for this Court but rather for the relevant courts exercising criminal jurisdiction.  The relevant protections for a person so charged with criminal offences lie within the law of the State of Victoria. 

16. Accordingly, I have made orders releasing those documents conditionally.

I certify that the preceding Sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 July 2011.

Associate:

Date:  2 August 2011