Tomerford & Tomerford (No 2)

[2011] FamCA 244

FAMILY COURT OF AUSTRALIA

TOMERFORD & TOMERFORD (NO 2) [2011] FamCA 244

FAMILY LAW – PRACTICE AND PROCEDURE - APPLICATION TO ACCESS COURT FILE – Application made by the Independent Children’s Lawyer for the Department of Human Services to access the file in this matter – where the Independent Children’s Lawyer has authority to make such an application – where the father opposes the application – where there is an open investigation into alleged sexual abuse of one of the children – where the Department needs to assess whether the child should be re-interviewed – where access to the Court file will facilitate that assessment – permission is granted for the Department to access the Court file and record – regard is had to unresolved risks and concerns about the welfare of the child – leave is granted to the mother to take the children to medical appointments in relation to allegations of sexual abuse

Family Law Act 1975 (Cth) ss 68LA(2), 68LA(3), 121
Family Law Rules 2004 rr 24.13(1)(c), 1.06(b) Part 24.3

APPLICANT: Independent Children’s Lawyer

FIRST RESPONDENT: Ms Tomerford

SECOND RESPONDENT: Mr Tomerford

FILE NUMBER: NCC 600 of 2009

DATE DELIVERED: 8 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 5 April 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Wooi

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Williams

Viney Williams

COUNSEL FOR THE SECOND RESPONDENT: Mr Greenway

SOLICITOR FOR THE SECOND RESPONDENT:

Mr Velcic

Dom Velcic & Co

Orders

1. That the Family Court file in proceedings NCC 600 of 2009 in respect of the children B born … April, 2005 and C born … December, 2006 be made available to Community Services, Department of Human Services New South Wales and that such access include photocopy access of all documents filed, not limited to but including any and all reports by Dr R, the single expert appointed by the Court.

2. Leave is granted to the mother to take the children or either of them to any medical appointment and/or interviews in relation to allegations of sexual abuse as requested by police or welfare authorities.

IT IS NOTED that publication of this judgment under the pseudonym Tomerford & Tomerford (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 600 of 2009

Independent Children’s Lawyer

Applicant

And

Ms Tomerford

First Respondent

And

Mr Tomerford

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an Application in a Case filed by the Independent Children’s Lawyer on 24 March 2011.  The application was supported by an affidavit sworn by the Independent Children’s Lawyer on 23 March 2011.

2. The relevant orders sought are as follow:

   That the Family Court file in proceedings NCC 600 of 2009 in respect of the children [B] born […] April, 2005 and [C] born […] December, 2006 be made available to Community Services, Department of Human Services New South Wales and that such access include photocopy access of all documents filed, not limited to but including any and all reports by [Dr R], the Court Expert.

   That Order 6 of the Orders of the Court 1 October, 2009 be amended to read as follows:

   “That the parties are hereby restrained from taking the children to any medical appointments in relation to allegations of sexual abuse, to police or welfare authorities without the leave of the Court.”

   That consideration be given to the issue of leave being granted in respect of Order 6 of the Orders of 1 October, 2009.

History

1. The matter came before the Court on 28 March 2011.  All parties were represented.  An officer from the Department of Human Services (the Department), Mr M, was available (by telephone) as requested by the Court.  Ms Thomas appeared on behalf of the Department.

2. There was an application for adjournment made for the father who wished to seek legal advice before responding.  The mother consented to the application to the release of the file.

3. The Court was advised by Ms Thomas:

   a)    That the report giving rise to the request for access to the Court file had been received on 31 January 2011;

   b)     That the report was from a third party; 

   c)     That the report of the third party dealt with what the father had said to that third party;

   d)     That some information from the report was already known to the Department.  There was some new information.  All information comes from the father; and 

   e)     There is an open investigation by the JIRT team at Town 1.  Part of the investigation is to obtain material in the Family Court file.

4. The Court was further advised that the impact on the investigation of an adjournment would be “none at all”.  Therefore, the matter was adjourned to 5 April 2011.

5. On 5 April 2011 when the matter came back before the Court, all parties were represented.  Counsel for the father opposed the orders sought on several bases:

   a)   That the Department was not an Intervener;

   b) Provisions of s 121 of Family Law Act 1975 (Cth);

   c)     That the provision of Dr R’s report would taint proceedings in the Family Court;

   d)     That Dr R’s report was untested opinion evidence; and

   e)     That the Independent Children’s Lawyer was not empowered to make such an application.

6. There continued to be no opposition from the mother to the release of the file.

Relevant events

1. On 25 February 2011 the mother was contacted by an officer from DoHS requesting an interview with C, “because of complaints made by [the father] to the Commissioner of Police”.[1]  A copy of the orders of Coakes FM on 1 October 2009 was said to have been provided to the officer by solicitors for the mother.[2] 

   [1]   Annexure “B” (letter 25 February 2011)

   [2]   Annexure “B”

2. On 28 February 2011 the Independent Children’s Lawyer was contacted by a police officer from JIRT.  The Independent Children’s Lawyer was asked for her view as to whether or not it would be in the best interest of C to be interviewed again.  If the Independent Children’s Lawyer did not find it to be so, the Department of Human Services would “find a different course of action, if any”.[3]

   [3]   Annexure “A” (email 28 February 2011)

3. Before responding to the enquiry as to whether she felt a JIRT interview would be in the children’s best interests, the Independent Children’s Lawyer made further enquiries about correspondence from the father said to have been received by the Department.[4]

   [4]   Annexure “C” (letter 16 March 2011)

4. The Department of Human Services asked the Independent Children’s Lawyer to make an application to the Court for provision to the Department of filed documents.[5]  No doubt this was referable to order 6 of the orders made by Coakes FM on 1 October 2009.  The Independent Children’s Lawyer prepared a Minute of Order and circulated it to the parties for consideration.[6] 

   [5]   Annexure “E” (letter 17 March 2011)

   [6]   Annexure “F”

5. The father did not consent to the making of an order.  Accordingly the Independent Children’s Lawyer, quite properly, made an application to the Court.  In that regard the making of the application falls within the general role of an Independent Children’s Lawyer (s 68LA(2) & (3)).  I reject the submissions that the Independent Children’s Lawyer lacked authority to make the application.  Such applications were envisaged by order 6 of 1 October 2009.

The law and analysis

1. Part 24.3 of the Family Law Rules 2004 provides for searching of the Court record by a person with a proper interest. On this basis he Department could have approached the Court directly to apply to inspect the file, despite not intervening in the proceedings. However, given the orders in place it was appropriate to seek the assistance of the Independent Children’s Lawyer

2. In this matter there is an open investigation by Town 1 JIRT in relation to sexual abuse of the child, C.  It is a matter for the Department to assess whether C should be re-interviewed and the best interests of the children will be promoted by the Department making that assessment Access to the Court file will assist the Department to come to a view as to whether the child C should be re-interviewed, or whether any other step should be taken in the investigation. The Court should facilitate that decision by making the file available.

3. I therefore reject the submission that possibility of the family law proceedings being tainted by granting access to the file would be a reason to decline the application.

4. In the circumstances I find that the Department, or its officer, is a person with a proper interest in the case and/or in information obtainable from the Court record in the case. 

5. Accordingly, I grant permission for the Department to search the Court record (r  24.13(1)(c) and r 1.06(b)) and to obtain photocopies as needed.

6. I decline the application for the amendment of the order by the omission of the words “following an application by the Independent Children’s Lawyer”.  The appropriate actions of the Independent Children’s Lawyer exemplify the need for the continuation of that aspect of the role in this case.

7. I grant leave to the mother to take the children or either of them to any medical appointment, or to interviews requested by police or welfare authorities in relation to allegations of sexual abuse.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 8 April 2011.

Associate: 

Date:  8 April 2011