SUSSKIND & DEAN (NO.2)

[2013] FamCA 1133

FAMILY COURT OF AUSTRALIA

SUSSKIND & DEAN (NO.2) [2013] FamCA 1133

FAMILY LAW – PRACTICE AND PROCEDURE – Application to lead evidence from a witness whilst not identifying notifier.

Family Law Act 1975 (Cth)

APPLICANT: Mr Susskind

RESPONDENT: Ms Dean

INDEPENDENT CHILDREN’S LAWYER:	Grant & Associates
OTHER PARTY	Department Of Education

FILE NUMBER: BRC 1299 of 2011

DATE DELIVERED: 7 May 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 7 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rosen

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Westbrook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Grant & Associates
COUNSEL FOR DEPARTMENT OF EDUCATION	Ms O’Gorman

Orders

IT IS ORDERED THAT:

1. The Independent Children’s Lawyer be granted leave pursuant to s 186(3) of the Child Protection Act to lead evidence from the proposed witness, conditional upon there being no evidence from the witness which has the direct or intended effect of identifying a notifier.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Susskind & Dean (No. 2) 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 BRISBANE

FILE NUMBER:  BRC 1299 of 2011

Mr Susskind

Applicant

And

Ms Dean

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the Independent Children’s Lawyer in this matter for leave pursuant to section 186 subsection (3) of the Child Protection Act 1999 (Qld).That provision reads as follows:

   Subject to subsection (4):

   (a) 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, and

   (b) unless leave is granted, a party or witness in the proceeding:

   (i) must not be asked, and, if asked, can not be required to answer any question that cannot be answered without disclosing the identity of or leading to the identification of the notifier, and

   (ii) must not be asked to produce, and, if asked, cannot be required to produce any document that identifies or may lead to the identification of the notifier.

2. It is helpful at the moment to also avert to subsection (4) of section 186 and subsection (5) which read as follows:

   (4)  The court or the tribunal must not grant leave unless:

   (a)  It is satisfied:

   (i) the evidence is of critical importance in the proceeding, and

   (ii) there is compelling reason in the public interest for disclosure, or

   (b) the notifier agrees to the evidence being given in the proceeding.

   Subsection (5) reads:

   In deciding whether to grant leave, the court or tribunal must take into account:

   (a) the possible effects of disclosure on the safety or wellbeing of the notifier and the notifier’s family, and

   (b) the public interest in maintaining confidentiality of notifiers.

3. I should also note that subsection (6) provides as follows:

   As far as practicable, an application for leave must be heard in a way that protects the identity of the notifier pending a decision on the application.

4. In this case the procedure that was adopted to try and comply with subsection (6) was that the parties voluntarily agreed to remove themselves from the court room during the course of the argument and further, the submissions that have been advanced on behalf of the parties have been cast in a way so as to try and ensure that the identity of the apparent notifier is not disclosed.  I will return to that later in these reasons.

5. The ambit of the dispute between the Independent Children’s Lawyer’s counsel and counsel who appeared for the Department who appears to be the employer of the relevant witness, has been confined to an extent by the parties written submissions.  Particularly it is identified in paragraph 5 of the written submissions of the Independent Children’s Lawyer that there were two parts to the evidence of the proposed witness.  As I understand it, that part of the evidence which is referred to in paragraph 5.2 of the outline of the Independent Children’s Lawyer’s submissions is not the subject of objection.  That relates to the capacity of the child or a child relating to these proceedings, the child B, to be coached or to otherwise adopt a form of words not emanating from her own personal experience.

6. It is that material which is referred to in paragraph 5.1 which is apparently contentious.  Paragraph 5.1 reads:

   The witness is able to give evidence of words said by the older child –

   and I note that is the child B –

   and of circumstances in which the child uttered the words of which evidence might be given.  This evidence might have the appearance of being consistent with the evidence of the mother and if it is found to be so, might then corroborate the evidence of the mother that the child has spoken words consistent with the child having experienced something amounting to abuse.

7. There was some further narrowing of the matters in dispute between the Independent Children’s Lawyer and the Department and I identify that from paragraphs 14 and 15 of the Department’s counsel submissions.  Particularly, I note that in paragraph 14 of the outline the Department says that it is:

   Not in a position to make any submission as to whether the evidence of the witness is of critical importance in the proceeding.

8. To that extent, there is no direct challenge to the assertions made by the counsel for the Independent Children’s Lawyer that the evidence is of critical importance.  Nonetheless, I am obliged to be satisfied of that before granting leave.  I will return to that in a moment.

9. The second partial concession that is made by the counsel for the Department is in paragraph 15 and is relevant to the criterion in section 186(4)(a)(ii), namely whether there is a compelling reason in the public interest for disclosure. As to that, in paragraph 15, the Department says:

   As to the second limb of section 186(4) the Department concedes that in the ICLs written submissions the ICL identifies the reason why the witness, given the relevant evidence, would be in the public interest.  However, the Department submits, with respect, that the court cannot necessarily be satisfied that the reason is compelling.  This is because the disclosure of the identity of the notifier has the propensity to hind the administration of justice and to be contrary to the public interest.

10. Therefore, the matters for my determination are whether the relevant evidence is of critical importance in the proceeding and whether there is a compelling reason in the public interest for the disclosure.  In doing so, I am mindful of the mandatory considerations in subsection (5). 

11. At the outset, I should say that it appears as though, at least from the submissions advanced by the ICL, that there is no intention to actually name the witness.  Paragraph 16, observes that the witness’ identity and personal details, residential address etcetera, are not necessary to the receipt of the witness’ evidence.  Rather, it appears as though it is the professional circumstances of the proposed witness which give rise to her evidence and which make that evidence of some significance.  I therefore conclude that the leave is not being sought to adduce evidence of the identity of the notifier but rather, the leave is being sought to adduce evidence from which the identity of the notifier could be deduced, seemingly by virtue of the notifier’s professional circumstances.

12. Turning then to whether or not the evidence is of critical importance, I note that the Independent Children’s Lawyer, in my view correctly, identified that one of the substantial issues in the proceedings is to the degree to which, if at all the applicant father presents as an unacceptable risk to the children.  The mother has given evidence in her affidavit of alleged disclosures by the children of matters which could found an inference that the father has, in the past, been guilty of sexual abuse of them in some form.  Likewise, as I understand it, the mother intends to lead evidence from others as to disclosures or, alternatively, sexualised behaviours which those others have heard or seen.

13. As I understand the proposed witness, the difference between her and the evidence that is to be led by the mother – or the identity of the witnesses from whom evidence is to be led by the mother – is that the witness is objectively independent and stands quite distant from the parties and more, is of a professional background.  I think that the Independent Children’s Lawyer is correct in anticipating that strong criticism may be made of the mother and of those other witnesses whom she intends to call in relation to disclosures, that the mother has, in some way, generated or been involved in the articulation of the disclosures.

14. Such considerations would apply at a much lower level in relation to evidence of a disclosure made to an independent witness with a professional background.  Of course, one can never know in anticipation of the evidence being received and properly tested, exactly what importance it may have but, as I understand the likely evidence is of disclosures which could support an inference of sexual abuse by someone and perhaps the father.  Accepting that at the moment that the evidence is not before me, nor is there any précis of it before me, doing the best I can I am of the view that in these circumstances the evidence is of critical importance in the proceeding and therefore am satisfied of the criteria established in section 86(4)(a)(i).  That then brings me to the question of the criterion in (4)(a)(ii), namely whether there is a compelling reason in the public interest for disclosure. 

15. Paragraph 13 of the Independent Children’s Lawyer’s submission provides as follows:

    There is a public interest in ensuring that the evidence in a matter such as the present is the best evidence available.  There is a tension between the interest in protecting the identity of a notifier and thus enabling any potential notifier to be aware that the embargo on identification is strenuously protected and ensuring that the best interests of the child are protected.  It would be invidious if the concern to protect the identity of a notifier had the effect of adversely reflecting upon the very child who is the subject of the notification.

16. As I understand it, it is this aspect of the Independent Children’s Lawyer’s submissions which is accepted by the Department as identifying a reason why the witness giving the relevant evidence would be in the public interest. 

17. The real question then is whether that reason is compelling in the unique circumstances of this case.  Before dealing with the conclusion of whether or not compulsion has been established, I address the mandatory matters which must be taken into account in subsection (5).  As to that which is in (5)(a), namely the possible effects of disclosure and the safety or well-being of the notifier and the notifier’s family, there is no material before me which would suggest that there is likely to be any adverse effect upon the notifier or the notifier’s family and I will return to the reasons for that in due course.

18. The second matter that I am obliged to take into account is the public interest in maintaining confidentiality of notifiers.  I acknowledge that that, in most cases, would be an extraordinarily strong consideration in that the safety of children in our community is strongly enhanced by a strict regime of confidentiality applying to notifiers.  However, this case is not one of the run of the mill cases.  I say that it is not one of the run of the mill cases because somewhat unusually it appears as though the fact of notification and the identity of the notifier has been disclosed, perhaps inadvertently, by the notifier itself and, indeed, by the mother to the Family Report writer, Ms F, who has included aspects of the report of the notification in the Family Report.

19. I accept that that aspect of the Family Report has not been read into evidence by the Independent Children’s Lawyer, but nonetheless the fact of its publication to the parties is uncontroversial.  Moreover, I observe that paragraphs 408 and 409 of the mother’s affidavit sworn 29 April 2013 deal specifically with what I understand to be the relevant event of disclosure and the response to that disclosure by the proposed witness.  This is therefore not a case in which the identity of the notifier is unknown to one or more of the parties appearing before me.  Quite the contrary.

20. Ms O’Gorman, who appeared for the Department, helpfully referred me to the decision of ASIC & P. Dawson Nominees Pty Ltd [2008] FCAFC 123, where the court was confronted with a not altogether dissimilar situation, albeit in a different context. There, at paragraph 37, the Full Court said as follows:

    However, the partial disclosure of an informer’s identity, even to the person informed against, is not conclusive.  Immunity from further disclosure is not necessarily lost.  The point arose in Hayden.  The informer was one of several defendants charged with a number of murders.  Another defendant obtained the issue of a subpoena to produce records of interview between the informer and the police officers.  As a result of a misunderstanding by the prosecutor, there was disclosure in open court to the magistrate and hence to the other defendants, that the informer was the person interviewed.  Doyle CJ accepted that this disclosure was relevant but the question remained whether the contents of the interview should be disclosed.  His Honour said at paragraph 23:

    The disclosure of the name of the maker of the statement is not the end of the matter.  If disclosure were the end of the matter, then as the court observed in Smith at 313, the public interest immunity could be frustrated by an accident or by the malice of a witness who blurted out the name of an informer in an open court.

21. Whilst I am mindful that in ASIC v P. Dawson Nominees the court ultimately concluded that the disclosure of the informer’s identity should not be ordered, that of course was a decision on the particular facts of that case I’m obliged to make this decision on the particular facts of this case.  What is sufficient to comprise a compelling reason will of course differ from case to case and the particular unique circumstances of each case.  However, here clearly, the relevance of the evidence and the fact that these are proceedings which involve a consideration of the best interests of the children and particularly a regime of orders which will protect the children from any unacceptable risk of child abuse, is a matter relevant in determining what is the public interest in relation to the disclosure or the prospective disclosure here.

22. However, I also identify that what is compelling in this case is informed by the fact that there has been a degree of disclosure of the existence of the notification and, it seems, the identity of the notifier, in any event.  Therefore the degree of compulsion which the material germane to determining the best interests of the children has in this case, is in my view increased by virtue of the partial, or perhaps even complete, disclosure of the identity of the informant in this case.

23. Weighing those matters in the balance, I am satisfied that there is a compelling reason in the public interest for the disclosure of that conversation or conversations which the proposed witness had with the child B. I’m mindful that the order sought by the Independent Children’s Lawyer does in its own terms seek to be circumscribed, namely that it be conditional upon there being no evidence led from the witness which has the direct or intended effect of identifying a notifier. Indeed, in that context, I note, I think correctly, that the Independent Children’s Lawyer does not intend to even trespass upon any evidence from the witness relating to an event of notification. Rather, it is only the conversation between the proposed witness and the child which is sought to be the subject of the evidence, and that is the only extent of the leave which I will give. Therefore, I propose to order that the Independent Children’s Lawyer be granted leave pursuant to section 186(3) of the Child Protection Act to lead evidence from the proposed witness, conditional upon there being no evidence from the witness which has the direct or intended effect of identifying a notifier.

24. Before I conclude these reasons, I should say that in the course of argument, it was suggested that section 186 of the Child Protection Act applied in this court, or to proceedings in this court, by virtue of section 69ZK(2) of the Family Law Act.  During the course of debate, it appears that that argument was perhaps not pressed, but rather in light of the decision of the High Court in Northern Territory of Australia & GPAO and Others (1999) 196 CLR 553, that the relevant provision applies by virtue of section 79 of the Judiciary Act.

25. I accept that that is the basis for the application of that section and in that regard, I note that was specifically addressed by the Full Court in The Department of Family and Community Services & Jordan, [2012] FamCA 147 at paragraphs [52] and following.

26. I should also say that an alternative basis for the application of the rule or perhaps an application of an allied process, was suggested as lying in section 69ZW, subsection (6).  In my view, section 69ZW applies to documents and information amenable to a production order and does not have general application outside of the regime established under section 69ZW, and in that regard, I note that in the decision of Department of Family and Community Services & Jordan that I have previously referred to at paragraph [58], there is support for that proposition.

27. If I am wrong and there is a further requirement under section 69ZW to consider the test in that subsection, I note that it has a slightly different phrasing of the second element, namely that rather than it being that there is a compelling reason in the public interest for disclosure, the statutory phrasing is that the failure to make the disclosure would prejudice the proper administration of justice.

28. Addressing that criterion, in the event that I am wrong and a separate consideration of section 69ZW(6) is required of me, I would nonetheless conclude that the failure to make disclosure in this case would prejudice the proper administration of justice, and I repeat and rely upon the reasons that I advanced in that regard when dealing with the compelling reason in the public interest for disclosure in considering section 186(4)(A(2).

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 7 May 2013.

Associate: 

Date:  20 May 2013