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 of 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

1. 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 said document should be tendered in the trial proceeding, notice will be provided to John Prior, Principal Lawyer, J Street, Brisbane (telephone number: …, e-mail address: …), and in that event, the Director-General of the Department of Education and Training be given the opportunity to be heard on that issue at trial. 

   (d)Leave is given to John Prior, Principal Lawyer, Crown Law to uplift the affidavit of Ms H and remove the document contained in the sealed envelope identified as “A – Private and Confidential Only to be opened by Order of the Court” which is exhibit “CMA -2” to Ms H’s affidavit sworn 22 November 2011, and filed by leave on 23 November 2011.

   (e)Leave is given to John Prior, Principal Lawyer, Crown Law to uplift from the Court file the document which was contained in a sealed envelope identified as “A – Private and Confidential Only to be opened by Order of the Court” which was appended to a Notice of Objection to the above subpoena for production addressed to the Director-General of Department of Education and Training, and which enclosed in Crown Law’s letter to the Subpoena Documents and Exhibits Officer, Federal Magistrates Court dated 9 August 2011, and which corresponds with the document contained in the sealed envelope identified as “A – Private and Confidential Only to be opened by Order of the Court” which is exhibit “CMA -2” to Ms H’s affidavit sworn 22 November 2011, and filed by leave on 23 November 2011.

   (f)There be no order as to costs.

IT IS FURTHER ORDERED THAT

1. The matter is adjourned to the Magellan Registrar at 10.00am on 16 May 2012 for the making of all such directions as might be necessary for the further progress of this matter, including, if considered appropriate, directions for final hearing of this matter, and that unless otherwise ordered by the Registrar, such hearing shall be conducted by telephone.

2. Subject to the preceding paragraphs of these orders pertaining to the documents referred to therein, to the extent that the exception provided for in s 121(9)(a) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children’s Lawyer shall have leave to publish:

   (a)  all such documents and information relevant to these proceedings as the Independent Children’s Lawyer might consider appropriate including, without limiting the generality thereof, any family report/s, Children and Parents Issues Assessment/s, child inclusive conference memorandum / report/s and any transcript of oral report/s (if available on the file) by any Family Consultant to:

i     any expert appointed by the Court or engaged by the Independent Children's Lawyer for the purposes of these proceedings

ii   The Director-General Department of Communities (Child Safety Service) Qld and/or the Director-General of any relevant child welfare authority

(b)  provided the Independent Children’s Lawyers has first given reasonable written notice to the named person in any subpoena and each other party, copies of any documents produced pursuant to subpoenae in these proceedings to:

i     any expert appointed by the Court or engaged by the Independent Children’s Lawyer for the purposes of these proceedings

ii   The Director-General Department of Communities (Child Safety Service) Qld and/or the Director-General of any relevant child welfare authority

(c) in the event the Independent Children’s Lawyer is given written notice of proceedings in the Children’s Court of Queensland in respect of the children to which his or her appointment relates, leave to publish pursuant to s 121(9)(g) shall extend to the provision of any family report/s, Children and Parents Issues Assessment/s, child inclusive conference memorandum / report/s and any transcript of oral report/s (if available on the file) by any Family Consultant to the Children’s Court of Queensland such that the said Court might make such use of same as the Court considers appropriate.

IT IS NOTED that publication of this judgment under the pseudonym Susskind & Dean is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1299 of 2011

Mr Susskind

Applicant

And

Ms Dean

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. During the course of proceedings which are currently being managed in this Court’s Magellan directions list, a subpoena has issued from the Independent Children’s Lawyer directed to the Director-General, Department of Education.  The Director-General has produced, pursuant to that subpoena, two documents, each of which is contained in sealed envelopes. 

2. The first document is a document which has been described in these proceedings as “the unredacted document”.  The second, in an envelope marked B, has been described in these proceedings as “the redacted document”.

3. The difference between the two is that, in the redacted document, identifying details have been removed by being blacked within in the document.  I did not need persuasion that the relevant provisions of the Child Protection Act 1999 (Qld) were such that the unredacted document ought not be inspected or otherwise tendered into evidence.

4. It seems to me that there are strong public interest grounds for protecting the position of notifiers to the Department and/or other statutory bodies who may have a mandatory obligation to report such notifications relating to children. So much is underlined by the procedures of this court which seek to protect the identification of notifiers to, for example, the Department of Child Safety. 

5. Different issues arise with respect to the redacted version of the document. 

6. Mr Keane, counsel for the Director-General, points to s 186 of the Child Protection Act and, in particular, to sub-section (3) of that section which provides that, subject to sub-section (4):

   Evidence of the identity of the notifier or from which the identity of the notifier could be deduced must not be given in a proceeding before a court or tribunal without leave of the court or tribunal.

7. Mr Keane points to that sub-section in particular because, an inspection of the document, which I was invited to undertake by Mr Keane, reveals that many, if not all, of the matters contained within the document that might identify the notifier are the subject of a conversation between the mother and that person or persons. 

8. Accordingly, I raised with Mr Keane the issue of whether the mother could in fact give evidence of those conversations independent of anything that might be contained in the document. Mr Keane submits that the evidence could not be received, subject to the Court granting leave upon being satisfied of the matters contained in subsection (4) of s 186 of the Child Protection Act.

9. Plainly, in a case such as this (as, indeed, sub-section (4) of that section plainly contemplates), there is a balance between competing interests.  The first is the proper public interest in the protection of those who would seek to protect children by notifying concerns about children to relevant statutory institutions and bodies.  On the other hand, the interests of justice demand that all evidence directly relevant to issues that need to be determined by a court ought be before the Court prior to the making of any such determination. 

10. It seems to me and ultimately Mr Keane on behalf of the Director-General agrees, that a proper balance can be struck in this case by making the orders to which I have earlier alluded.

11. The reason is that sub-section (4) provides that before granting leave, the Court must be satisfied that “the evidence is of critical importance in the proceeding”, and that “there is compelling reason in the public interest for disclosure”.

12. The Family Court’s processes do not include pleadings.  Accordingly, the precise issues joined between parties to proceedings before it have not been particularised in the manner in which pleadings would do so. 

13. Further, and in any event, as the High Court pointed out in CDJ v VAJ (No 1) (1998) 197 CLR 172 at [152], issues in relation to parenting are as much about values as they are about facts and, therefore, particularised factual assertions as might be found in a pleading are somewhat more elusive in children’s proceedings than they might be in ordinary civil proceedings.

14. Secondly, as I pointed out to Mr Keane during the course of argument, specific provisions within division 12A of the Family Law Act 1975 (Cth) (“the Act”) change dramatically the rules of evidence, and, relevantly, the rules relating to hearsay in parenting proceedings before this court.

15. That being the case, it seems to me that, on the evidence currently before the Court in the Magellan directions list in which this issue arises, the Court is not in the position of being able to determine, with any sort of confidence, whether the two requirements of sub-section (4) of s 186 of the Child Protection Act have been met.

16. Accordingly, as it seems to me, a decision about that matter should await the trial proceedings at which all of the evidence directly relevant to the best interests of this child can be properly assessed. 

17. The balance between the two proper competing interests to which I have made reference can, I think, be struck by restricting the inspection of the document to the independent children’s lawyer upon an undertaking given by him today as to treating such information confidentially and a further consequent undertaking not to disclose the contents of any such information.

18. Secondly, the interests can be balanced by, first, allowing any decision about whether the evidence needs to be tendered in the course of the proceedings effectively in the Independent Children’s Lawyer’s hands but in circumstances where he is aware of all such information and evidence that otherwise might contain matters directly relevant to the best interests of this child in those proceedings (that is, at a trial). Secondly, the balance is struck by ordering that, where tender is considered appropriate in the children’s best interests, the Independent Children’s Lawyer shall give written notice to those who represent the Director-General of Education to that effect. In that case, of course, the Director-General would be afforded the opportunity to be heard in respect of that issue at the trial.

19. For those reasons then I make the orders earlier referred to.

I certify that the preceding eleven (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 23 November 2011.

Associate:

Date:  7 December 2011