Vossen & Vossen
[2024] FedCFamC1F 485
•19 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vossen & Vossen [2024] FedCFamC1F 485
File number: SYC 4893 of 2024 Judgment of: CAMPTON J Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking – Where the parties were engaged in parenting proceedings in which judgment was delivered and final orders made in 2019 – Where each of the single forensic psychologist expert’s report and the mother’s trial affidavit that the father seeks leave to utilise were both adduced in evidence at the trial – Where the father seeks to use of these documents and the non-anonymised reasons for judgment from in his response to the Office of the Children’s Guardian, or any review process, or any appeal proceedings, relating to his holding of a Working With Children Check – Where the mother opposes the relief sought and seeks an injunction restraining the father from providing a copy of her trial affidavit to any third party – Where the father makes reckless submissions – Where one purpose of obtaining leave to use the documents sought is to reengineer the findings of fact contained in the 2019 judgment – Where the evidentiary foundations relied upon by the father to support leave are deficient – Where the father does not engage with any consideration as to the interests of the children – Application dismissed save as to leave granted for the father to use the anonymised published reasons for specific purposes – Orders made as to the filing of material for costs. Legislation: Family Law Act 1975 (Cth) Pt XIVB, ss 114N, 114S, 114Q
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Child Protection (Working with Children) Act 2012 (NSW) s 17
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.04
Cases cited: Chakora & Bhander [2023] FedCFamC1F 127
Commissioner of Taxation & Darling (2014) FLC 93-583
Earnshaw & Farella(No 2) [2022] FedCFamC1F 1020
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3
Littlefield and Pemble [2023] FedCFamC1A 198
Pace & Halkias [2021] FamCAFC 81
Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720
Vossen & Vossen [2019] FamCA 188
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 18 July 2024 Place: Sydney Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Longworth Solicitor for the Respondent: Lander & Rogers ORDERS
SYC 4893 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VOSSEN
Applicant
AND: MS VOSSEN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.The applicant has leave to provide the anonymised published judgment as Vossen & Vossen [2019] FamCA 188 identifying he as the respondent father in that proceeding to the Office of the Children’s Guardian (“the Office”) only for the purposes of:
(a)Responding to the notice he received issued 1 March 2024 by the Office; and
(b)Should his response by unsuccessful, for the internal review of the determination by the Office; and
(c)Should the internal review be unsuccessful, in the administrative appeal process from the internal review determination by the Office.
2.The Initiating Application filed 26 June 2024, save as to costs, is otherwise dismissed.
3.The Application in a Proceeding filed 26 June 2024 is dismissed.
4.The Response to an Initiating Application filed 16 July 2024 is dismissed, save as to costs.
5.If either party seeks an application for costs, they are to file any affidavit material in support and written submissions within 14 days of the date of these orders.
6.Should either party file material in accordance with Order 5, the other party is to file any affidavit material in response and written submissions within 14 days thereafter.
7.In the event neither party files material pursuant to Order 5, each party’s application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vossen & Vossen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
By way of an Initiating Application and an Application in a Proceeding filed 26 June 2024, Mr Vossen (“the father”) seeks leave to:
...utilise in any response to the Office of the Children's Guardian or related review and appeal proceedings concerning a Working With Children's Check, the following documents:
1. The Single Expert Report of [the forensic psychologist] 14 May 2018;
2.The Orders and reasons for Judgment (without anonymisation [sic]) dated 29 March 2019.
3. The Affidavit of [the mother] filed 24 January 2019.
In a Response to an Initiating Application filed 16 July 2024, Ms Vossen (“the mother”) opposes the relief sought by the father and seeks an injunction restraining him from providing a copy of her affidavit filed 24 January 2019 to any third party.
THE PRIOR LITIGATION
Proceedings regulating the parenting of the three children of the parties, then aged 11 as to the older child and eight as to the twins, and as to child support, were determined after a seven-day trial. Judgment was delivered and orders were made by Rees J on 29 March 2019. The anonymised form of the published judgment is Vossen & Vossen [2019] FamCA 188.
The parameters of the parenting litigation were identified in the reasons:
6.It is the mother’s case that the father has behaved inappropriately with the children such that there is an unacceptable risk of sexual interference with them. Further, she asserts that the father has a propensity to family violence which merits supervision of his time with the children and that he takes unacceptable risks with their physical care and places them in physical danger.
7.The father’s case is that while, in some instances, his past behaviour was inappropriate, he has recognised the inappropriateness and adapted his behaviour accordingly. He further asserts that the mother has both exaggerated and escalated her concerns, both about his sexually inappropriate behaviour and his risk taking and that she is hyper vigilant in relation to the children.
8.As will emerge from these reasons, I do not accept that the mother’s concerns have been exaggerated. If her concerns have escalated, then that has occurred because of the manner in which the evidence has emerged.
The mother and six other witnesses gave evidence in her case. The father and five other witnesses gave evidence in his case. The single expert was cross-examined. Evidence was adduced from a Family Consultant. An Independent Children’s Lawyer appeared for the children.
The reasons of record:
51.There were two issues which occupied most of the trial. The father’s conduct with the children, the extent to which the children fondled his genitals and the risk posed to them arising out of this conduct was the primary issue. The father’s ability to contain his anger and risk taking behaviour with the children was a secondary issue. Having regard to the findings I have made about the primary issue, and the fact that I have determined that the children’s time with the father should be supervised, it is not necessary to determine the secondary issue.
The reasons are comprehensive and detailed, identifying the evidence considered, grounding the findings as to the father sharing his bed with a child, applying cream to the children’s genitals and as to the inappropriate touching of the father’s genitals (at [75] – [164] of the reasons).
The reasons record (at [161]) that the single expert opined in her report, prior to cross‑examination, that the father’s behaviour demonstrated a remarkable lack of insight but did not fit the criteria for sexually abusive conduct. The expert’s report made an ultimate recommendation, recorded at [163], that supervised time by the children with the father be phased out dependent on the father undertaking specified programs and addressing issues of boundaries.
The reasons then go on to record:
168.It is not necessary to give any particular label to the behaviour which causes concern. Whether the behaviour of the father can be categorised as sexual abuse is not relevant.
169.…the categorisation of the father’s behaviour was the subject of cross‑examination of the single expert and in her oral evidence she acknowledged that the father’s behaviour may constitute sexual abuse…
170.However, the question is not whether the father was intentionally engaging the children in sexually abusive or grooming behaviour, or whether this behaviour is to be categorised as sexual abuse. The question to be answered is “Does this behaviour pose a future risk to the children against which safeguards must be put in place?”
171.The answer to that question is “Yes.”
…
173.He has allowed the children to touch and fondle his genitals and treat his penis as a plaything. By not discouraging them from those activities he has tacitly encouraged them. That behaviour, on his evidence, continued over about two years. It took place in private, in the bath with the children. It took place in public as witnessed by Ms J.
…
177.I consider that the father’s actions as have been described in these reasons pose a risk to the children of harm if they are repeated.
…
192.The risk can be ameliorated by supervision.
…
195.Supervision is necessary to protect the children.
The 29 March 2019 orders broadly provide for the children to live with the mother and spend supervised time with the father for two afternoons and one day each week. The reasons at [199] record a capacity to apply to vary the orders as to supervision when the twins attained the age of 10 years old in 2021. No application to vary has been made.
The children last spent time with the father in January 2020, August 2020, and November 2020 respectively.
THE CURRENT LITIGATION
The father identifies seeking to be excused or released from his obligations pursuant to the implied undertaking arising from the decision in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”) as approved by the High Court in Hearne v Street (2008) 235 CLR 125 (“Hearne”). As is self-evident, his proposed use of the specified documents is broad in construction and somewhat open for differing interpretations, being to any response to the Office of the Children's Guardian (“the Office”), or related review and appeal proceedings, concerning a Working with Children Check (“the WWCC”).
The father sought, and achieved by way of orders made on 15 July 2024, the urgent listing of his application for hearing before a Judge of the Federal Circuit and Family Court (Division 2). He deposed that the WWCC enquiry is subject to short time constraints. The determination he seeks to challenge was made 1 March 2024. It appears to require his response within three months, being before 1 June 2024.
On the urgently listed hearing on 17 July 2024, the Division 2 Court could not determine the application. As the implied undertaking was given to the Family Court, relief from the undertaking can only be given by that particular Court, it now being the Federal Circuit and Family Court of Australia (Division 1) (s 8(1) Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”)). The reason the father progressed the urgent listing of the hearing before a Division 2 judge was not explained. It generated unnecessary costs for both parties. The proceeding was transferred from Division 2 on 17 July 2024 for urgent determination in this forum.
For the reasons that follow, the father will be granted leave to provide the anonymised published judgment of Rees J dated 29 March 2019 identifying himself as the respondent father only for the purposes of his response to the Office to the notice he received issued 1 March 2024, for the internal review of the determination by the Office if his response is unsuccessful, and in the administrative appeal process, if made, from the internal review determination. The balance of father’s Initiating Application and Application in a Proceeding filed 26 June 2024, save as to costs, will be dismissed. The mandatory injunctive order sought by the mother in her Response filed 16 July 2024 will be refused. Directions will be made as to the filing of affidavit material and written submissions as to costs.
BACKGROUND
The parents commenced cohabitation in 2000, married in 2005 and separated on 2 December 2016. The children are now aged 17 and 13 years.
As to the documents to which the leave is sought:
(a)The Single Expert was appointed by an order made on 22 March 2018. The expert’s report was released to the parties by order made on 14 May 2018 recorded on the coversheet to the report, affixed and sealed:
This report is distributed by the Registry Manager of the Court under Part 15.5 of the Family Law Rules. It must be treated as confidential and must not be shown to any person other than the parties, their lawyers and any other person the lawyer concludes necessarily needs to see the report for the purposes of the case. If you are representing yourself the report should only be read by you and you must not provide a copy to any other person unless you believe it is necessary for a witness you are calling to give evidence at the trial to read the report.
Penalties may apply under Section 121 of the Act to the printing or publication of any material contained in this Report other than use in connection with proceedings in the Family Court.
(b)The mother’s affidavit filed 24 January 2019 was admitted into evidence at the trial.
The father gives evidence that from 2017 he held a WWCC. It was renewed in March 2023. On 1 March 2024 he was issued with a letter from the Office notifying him of an interim bar being imposed on his WWCC pursuant to s 17(2) of the Child Protection (Working with Children) Act 2012 (NSW). He says that he is required to respond to the allegations and make a submission to the Office should he seek to have his WWCC re-issued and not terminated permanently.
There are no documents adduced in evidence recording the father’s interactions with the Office to date. His solicitor advises that an extension of time for him to make submissions has been achieved to either 22 July or 1 August 2024.
The father records his occupation as a professional. He gives evidence that part of his employment involves attendance at schools. He adduces no further evidence as to any particulars of his employment except saying that it could be placed in jeopardy without the WWCC, causing him hardship.
THE LAW
The High Court in Hearne described the Harman obligation as follows:
96.Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. ...
97.It is common to speak of the relevant obligation as flowing from an “implied undertaking.”
The High Court said that the obligation extends to all persons who receive material knowing that it was generated in legal proceedings (at [103] and [109]). Release from the obligation may be granted where special circumstances exist (at [107]). The obligation extends to a witness statement filed pursuant to judicial directions, such as an expert’s report and an affidavit.
At general law, there are exceptions to the rule. One exception is where the document subject to the obligation, such as an affidavit or report, is read and formally adduced into evidence at trial in open court. That document then enters the public domain, and no relevant Harman obligation arises.
As was explained in Hearne, the general law obligation may be buttressed by legislation or rules of the court (at [98]). The Family Law Act 1975 (Cth) (“the Act”) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) create a statutory framework in favour of the privacy of persons involved in family law litigation.
The father referred to the Full Court judgment in Littlefield and Pemble [2023] FedCFamC1A 198 (“Littlefield and Pemble”), submitting that the pre-eminent consideration in that matter, being whether there was a real possibility that the use of the expert reports for which leave was sought in that case may contribute to the administration of justice in the proceedings for which leave was sought for their use, has direct application to this matter. Littlefield and Pemble was a determination to use two expert reports in criminal proceedings while the family law proceedings were still ongoing. No findings of fact had been made in those family law proceedings, in contrast to the circumstances in this matter.
The father submitted that threshold to achieve “special circumstances”, as identified by the High Court in Hearne, was “low”, citing as authority the Full Court in Littlefield and Pemble (at [35] in turn citing Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283). That submission does not reflect the reasoning of the Full Court in that paragraph. The submission was reckless.
The mother identified the decision of Schonell J in Chakora & Bhander [2023] FedCFamC1F 127 (“Chakora”) as applicable, being:
8The purpose of the implied undertaking has variously been described as protecting privacy, preserving confidentiality and to encourage full and frank disclosure in the knowledge that such production will be protected.
9The obligation extends to all Australian courts and tribunals as well as arbitration proceedings. It binds not just parties but their solicitors and counsel and third parties including experts who are in receipt of documents generated or produced by the litigation. It is not just limited to documents but covers information.
10As the implied undertaking arises in the context of litigation and is given to the Court, then it is only the Court that may release a party from the undertaking (Holpit Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576).
The Full Court in Pace & Halkias [2021] FamCAFC 81 identified what Wilcox J said in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (“Springfield”) as to the special circumstances required to be established, on the evidence, before leave should be given, including:
16… the nature of the document, the circumstances under which it came into existence, the attitude of the author and any prejudice that he or she may suffer, whether the document was created for the purpose of litigation or existed before it (that is, whether it was expected to enter the public domain), the nature of the information in the document (such as personal details or commercially sensitive information) and the circumstances by which the document came into the hands of the person seeking leave. Finally, his Honour regarded as “perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding” (at 225).
The authorities at general law do not import words of limitation to the discretion to be exercised. That discretion is appropriately wide to fit the circumstances of each set of facts.
CONSIDERATION
The orders made by Rees J are not restricted by the implied undertaking or the Rules (Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020 at [40]).
The Father’s categorisation of the three documents for which leave is sought
The father submits that the mother’s trial affidavit does not attract the implied undertaking, as it was received into evidence at trial. I do not accept that submission. Justice Schonell in Chakora said:
11The implied undertaking finds its expression in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 6.04 of the Rules of Court is in the following terms:
6.04 Use of documents
(1) A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
(2) However:
(a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and
(b) a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and
(c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.
…
20It is clear, from what their Honours identified in Hearne v Street, that an affidavit is covered by the implied undertaking. Parties are required in parenting matters before the Court to file applications and responses, are directed to file Case Outlines, and are compelled to file documents such as a Notice of Child Abuse, Family Violence or Risk. I am satisfied in those circumstances that such documents attract the implied undertaking.
The use of the mother’s affidavit, by reason of the rule, takes it outside the exception in Hearne (Commissioner of Taxation & Darling (2014) FLC 93-583 at [112]).
The father initially submitted that:
…the Expert report falls within the exception under section 114N where it is to a person (or body) with a significant legitimate interest in the subject matter. This is clear from the reliance on the judgement as reported to WWCC by the DCJ as references in their show cause letter to the applicant.
Section 114N is a simplified outline of Pt XIVB of the Act. That section itself is not a head of power to obtain leave of the character sought by the father.
What was s 121 of the Act has been replaced by s 114Q. It provides:
114Q Indictable offence—communication to the public of account of proceedings that identifies parties or others involved in proceedings
(1) A person commits an indictable offence if:
(a)the person communicates to the public an account of proceedings under this Act; and
(b) the account identifies:
(i) a party to the proceedings; or
(ii) a witness in the proceedings; or
(iii)a person who is related to, or is associated with, a party to the proceedings; or
(iv)a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate.
Penalty: Imprisonment for 1 year.
(2)Subsection (1) does not apply if the communication is:
(a) in accordance with a direction of a court; or
(b) otherwise approved by a court.
Section 114S of the Act identifies when a defined communication is not to a communication to the public. The adduced no evidence as to whether the Office was a “tribunal established by or under a law… of a State or Territory” (s 114S(2)(b)(iii)).
The father conceded during the hearing that the Rules and the order made on 14 May 2018 have application such that leave is required for his proposed use of the experts’ report. He accepts that he requires leave for his proposed use of the reasons. The gravamen of his application, albeit not prosecuted with precision, is to achieve orders that carry a release from the obligation expressly confirmed by the legislation and the rules not to use the specified documents for a purpose other than the proceedings for which they were generated.
Although not a parenting order, a decision to grant leave for the use of documents produced in a parenting proceeding, especially an expert’s report, where appropriate, should consider the best interests of the children (Sahadi & Savva and Anor (2016) FLC 93-704). It is an important factor to consider in the exercise of discretion that the subject children were not, and continue not to be, active litigants.
The mother conceded at the hearing that, subject to the Courts view, justice would be achieved in the WWCC enquiry if the Office were provided with the anonymised version of the reasons for judgment on condition that the father concedes that he was the person identified in the anonymised reasons as “the respondent father.”
The father’s case
The father bears the onus of proof to establish, from the evidence, that special circumstances exist to ground the exercise of discretion to achieve the leave sought. The circumstances need not be exceptional but need to ground a good reason, identifying the special feature of the case.
The father’s affidavit says:
·He has held a Working with Children Clearance since 2017. He achieved a renewal of it in March 2023.
·On 1 March 2024 the Office issued an interim bar to him holding a WWCC (“the notice’).
·The Department of Communities and Justice (“the DCJ”), based on an anonymous report, “incorrectly states the reasons for the decision of Rees J. The position they [the DCJ] detail is incomplete.” He seeks that the WWCC have the full and correct information. He believes that complainant to the DCJ is the mother.
·Each of the specified documents for which leave is sought to are necessary to defend the allegations such that he will be prejudiced and the WWCC misled if leave is refused.
·He needs a WWCC as “part of my employment as it involves attendance at schools. Without clearance my employment could be placed in jeopardy, and it will cause me hardship.”
·He must respond to WWCC before 1 July 2024.
The notice from the Office is exhibited to the father’s affidavit. It records:
·The Office is aware that the father has new records which are subject to risk assessment. The attachment to the correspondence lists the relevant records pertaining to the proposed cancellation as:
Outcome Date Record Details Outcome of record Records causing assessment 2017 - 2023 Department of Communities and Justice child protection history Listed as a Person Causing Harm in 2020. ·That the following information also informs the risk assessment:
Source Details Australian Criminal Intelligence Commission (ACIC) National police history. NSW Police Force Apprehended Violence Orders (AVO) History. Department of Communities and Justice (DCJ) Child protection history 2017 to 2023. Holder Telephone call with holder in February 2024. ·The information held by the Office suggests that the father may pose a risk to the safety of children.
·The father is not allowed to work in paid or volunteer child-related roles whist subject to an interim bar.
·A cancellation of the father’s clearance would mean that the father would be “barred from working with children for 5 years.”
The father’s submission that the requested documents are to be considered by an officer in a government department, as opposed to being available to a member of the public, has merit attracting weight.
The father said his evidence that the DCJ “incorrectly states the reasons for the decision of Rees J. The position they [the DCJ] detail is incomplete”. He repeated the same phrase in his submissions. He said that each is grounded from the following passages in the attachment to the 1 March 2024 notice from the Office of the reasons for proposing to cancel the WWCC clearance:
1.…In 2017 the holder was a Person of Interest in substantiated significant risk of sexual abuse of his children.
2.DCJ records indicate the Family Law Court ordered the holder should have professionally supervised contact with his children due to the concerns pertaining to sexual abuse. There was a provisional AVO against the holder protecting his children in [mid] 2017, which was dismissed in [early] 2018.
3.The records from DCJ indicate further concerns have been raised in relation to the Holder in 2022-2023 in relation to his partner’s daughter (female, aged 12). The records show the holder declined to participate in an interview with DCJ at the time.
4.The holder advises the 2020 investigation finding was completed without his participation and submits he engaged in the 2017 investigation. The holder advises the allegations including the concerns from 2022-2023 are due to a high conflict separation with his ex-wife.
5.Due to the seriousness of the holder’s conduct involving sexual harm and risk of sexual harm involving children, it is proposed the holder poses a risk to the safety of children in child-related work.
(Emphasis added)
The “holder” is the father.
The father’s submission at the hearing morphed into the conclusion that these passages equated to the DCJ reporting to the Office that a positive finding of sexual abuse occasioned by the father was made in the reasons of Rees J.
That construction is, and was, never available from a plain reading of the Office’s notice. As recorded earlier herein, that is not the finding made by Rees J. The submission of the father was either disingenuous or reckless. That said, it became a window to one potential motive underscoring his application.
The father submitted that the WWCC should be provided with, and have access to, “all relevant documentation to make an informed decision”. On enquiry, this was revealed to be a process of a government department, being the Office, “reconsidering all material” with the objective of that process to revisit the findings of fact recorded in the reasons of Rees J, being not dissimilar to relitigating the parenting enquiry in a different forum.
This conclusion is supported by the father’s response as to what the mother’s affidavit, or experts report, would contribute to the administration of justice in the Office’s enquiry above the findings in the reasons for judgment. He said the mother’s affidavit would demonstrate her “attitude generally to the risk” posed by the father, which he said, “goes further in her material, and there is not reference to all of it [the affidavit material and her attitude] in the judgment.” He said the experts report provides a detailed summary of investigation undertaken at that time, providing “a full and complete picture”. Implicitly, the reasons for judgment do not.
One of the father’s objectives in seeking to use selected documents from the trial is to machine or reengineer the findings made by Rees J as recorded in the published anonymised reasons. This attracts considerable weight against his relief sought, save as to leave being granted as to the anonymised reasons on condition as supported by the mother.
The following are additional indicative considerations falling against the relief he seeks:
(a)The nexus identified by the father between the parenting litigation concluding on 29 March 2019 and the 2020 to 2023 events recorded in the Office’s notice is that the mother being the notifier to the DCJ for the entries between 2020 and 2023. The contention is speculative. The mother denies the accusation of the father. She gives evidence in her affidavit as to notifications being made to the DCJ expressly by the OO Hospital, and implicitly, by way of a child’s therapist. She gives further evidence as to interviews being conducted with the children by both the Police and the DCJ sourcing the material recorded in the Office’s notice. The father did not make any submission as to why the mothers evidence on these topics ought not to be accepted. Her evidence is logical and cogent. The father did not give direct evidence as to the reasons he did not participate or engage in the DCJ investigations after the March 2019 orders. The accumulation of all the matters led to the Office’s conclusion in paragraph 5 of the notice;
(b)There is no expectation, having regard to the legislative framework, that the mothers trial affidavit, the experts report, or the reasons, save for the anonymised judgment, would be used outside the family law litigation;
(c)No reason was proffered, or evidence was given, by the father to support why the non-anonymised version of the judgment was required. The mother’s submission that the judgment was published in an anonymised form by the Court is to ensure that parties cannot be identified, has some merit;
(d)The mother, being the author of her affidavit, opposes the relief sought by the father. The father seeks to leave to use the entire document. It contains personal information as to her health and financial circumstances including as to child support, being wholly irrelevant to the reasons identified by the father grounding leave;
(e)No evidence was provided by the father to demonstrate that the expert is on notice as to the application for leave. The expert’s report records knowledge of the rules restricting the use of the contents of the report. The expert’s report considers and records the content of a raft of other documents, including documents produced on subpoena originating from sensitive sources including the Police, the DCJ, medical experts and health institutions;
(f)The children have not been heard as to documents pertinent to their welfare being used for the purposes identified by the father. The mother gave extensive evidence as to the recent and continuing psychological and physical impact on the children including specified hardship, distress, and anxiety connected with consultations with therapists and other interview processes. The father did not challenge this evidence. No submissions were made by the father as to how the granting of leave as sought would promote the subject children’s interests or engage with their privacy;
(g)The absence of evidence particularising the identity of the father’s employment or it terms. His evidence that not having a WWCC could have an impact on him employment is equivocal and attracts little weight. His solicitor submitted that he works at a company that provides goods to schools. Discretion is exercised on evidence. The father had the opportunity to adduce as to these particulars and elected not to do so; and
(h)The father’s submission the Office had a significant and legitimate interest in receiving the documents for which leave is sought is hollow. If there was any evidence that the Office sought the documents, it could make such application as it was advised. The DCJ has differing avenues to secure family law documents as a prescribed authority of a State that has responsibilities for the welfare of children (s 114S(2)(c) of the Act).
CONCLUSION
For all of the above the reasons, the father has not established special circumstances to warrant being released from his implied undertaking and compliance with the legislative framework or to vary existing orders as to non-publication save as to that conceded by the mother. His Initiating Application and Application in a Proceeding will be otherwise dismissed.
The injunctive relief as sought by the mother as to her trial affidavit is otiose for the above reasons. It will be refused.
Each party sought costs. Neither has had an opportunity to make submissions on that subject matter. In the event either wishes to progress their application for costs, they are to file and an affidavit and written submissions relevant to costs within 14 days of the date of these orders. If no material is filed, the applications for costs will be dismissed. If material is filed, and the other party wishes to be heard, they are to file written submissions and an affidavit in response within 14 days thereafter. The costs issue will be then listed for determination.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 July 2024
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