Susskind and Dean - [2011] FamCA 924

FAMILY COURT OF AUSTRALIA

SUSSKIND & DEAN

[2011] FamCA 924

FAMILY LAW – PROCEDURE – where documents produced by the Department of Education pursuant to subpoena – where the documents have been provided in both unredacted and redacted form, with the latter concealing the identify of the notifier – whether only the redacted documents should be available for inspection by the Independent Children’s Lawyer – where it is in the public interests to protect the identity of notifiers – where s 186(3) of the Child Protection Act 1999 provides that disclosure of a notifier’s identity cannot be made without leave of the Court – where leave can be granted only where the evidence is of “critical importance in the proceeding”, and that “there is compelling reason in the public interest for disclosure” – where nothing to suggest that the redacted evidence is of critical importance or that it is in the public interest for disclosure – where leave not granted – where only the redacted documents made available for inspection.

Family Law Act 1975 (Cth)
Child Protection Act 1999 (Qld)

CDJ v VAJ (No 1) (1998) 197 CLR 172

APPLICANT:

Mr Susskind

RESPONDENT:

Ms Dean

INTERVENOR:

Director-General Department of Education and Training

INDEPENDENT CHILDREN’S LAWYER:

Mr Grant

FILE NUMBER:

BRC

1299

2011

DATE DELIVERED:

23 November 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

23 November 2011

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Drage of R A Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Grant of Grant & Associates

COUNSEL FOR THE INTERVENOR:

Mr Keane

SOLICITOR FOR THE INTERVENOR:

Crown Law

Orders

UPON THE UNDERTAKING given by the Independent Children's Lawyer today that, upon inspection of the documents contained in the envelope marked “B – Private and Confidential Only to be inspected and/or copied as ordered by the Court”, to keep any and all such information contained within that document confidential and to not disclose any such information to any person without further order or direction of the Court

IT IS ORDERED THAT

In respect of the document sought by way of subpoena directed to the Director-General Department of Education and Training which has been produced by the Director-General and contained in an envelope marked “B”:
(a)The Independent Children’s Lawyer only be permitted to inspect the document contained in a sealed envelope identified as “B – Private and Confidential Only to be inspected and/or copied as ordered by the Court” which is annexure “CMA-3” to the affidavit of Ms H sworn 22 November 2011, and filed by leave on 23 November 2011 on behalf of the Director General Department of Education and Training in response to a subpoena for production issued on behalf of the Respondent on 7 July 2011.
(b)The Regional Registry Manager take all steps necessary to ensure that the document is held securely to facilitate that order.
(c)In the event that the Independent Children’s Lawyer is of the view that the evidence contained in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Susskind and Dean and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FamCA 924
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Susskind (Applicant) and Ms Dean (Respondent) were involved in proceedings concerning children. The Director-General of the Department of Education and Training intervened. The Independent Children’s Lawyer (ICL) had issued a subpoena to the Director-General for documents, which were produced in both unredacted and redacted forms. The central dispute concerned whether the ICL should be permitted to inspect only the redacted documents, or if the unredacted version should also be made available.

The court was required to determine whether the identity of a notifier, as protected by section 186(3) of the *Child Protection Act 1999* (Qld), should be disclosed to the ICL. Specifically, the court had to consider the conditions under which leave could be granted for such disclosure, namely that the evidence must be of "critical importance in the proceeding" and that there must be a "compelling reason in the public interest for disclosure." The court also considered the public interest in protecting the identity of notifiers and the interests of justice in ensuring all relevant evidence is available for determination of the children's best interests.

Justice Murphy reasoned that while the unredacted document should not be inspected due to the strong public interest in protecting notifiers, the redacted document presented different issues. Applying section 186(4) of the *Child Protection Act*, the court found that it could not confidently determine whether the evidence was of critical importance or if there was a compelling public interest for disclosure based on the material before it. Therefore, a balance was struck by allowing the ICL to inspect the redacted document under a strict undertaking of confidentiality. The court also ordered that if the ICL considered the evidence in the redacted document should be tendered at trial, notice must be given to the Director-General, who would then have an opportunity to be heard.

The court ordered that the Independent Children’s Lawyer be permitted to inspect only the redacted document, subject to an undertaking of confidentiality. Leave was granted for the Director-General to uplift certain documents. The matter was adjourned for further directions, and the ICL was granted leave to publish certain documents relevant to the proceedings, subject to specific conditions and notice requirements. The publication of the judgment under the pseudonym Susskind & Dean was approved.

Orders