Waldman and Waldman
[2013] FCCA 1035
•6 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALDMAN & WALDMAN | [2013] FCCA 1035 |
| Catchwords: FAMILY LAW – Declaratory relief – unnecessary to make declaration – order made permitting release of family report to a psychiatrist in relation to criminal proceedings. |
| Legislation: Family Law Act 1975, ss.62G, 121(1), 121(3), 121(9)(a), 121(9)(d) Federal Circuit Court of Australia Act 1999, s.16 |
| Re Edelsten (a bankrupt); Donnelly v Edelsten and Others (1988) 12 FamLR 294 AH & SS [2005] FamCA 854, (2006) 34 FamLR 24 Jenkins v NZI Securities Australia Ltd and Others (1994) 124 ALR 605 R v Howe (1978) 19 SASR 303; 4 Fam LR 166 Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 In re Judiciary and Navigation Acts (1921) 29 CLR 257 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 University of NSW v Moorhouse (1975) 133 CLR 1 Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 |
| Applicant: | MS WALDMAN |
| Respondent: | MR WALDMAN |
| File Number: | BRC 8571 of 2012 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 22 March 2013 |
| Date of Last Submission: | 12 July 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 6 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Shannon Donaldson Province Lawyers |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Best Wilson Family Law |
ORDERS
That the Father be at liberty pursuant to section 121(9)(d) to provide the Affidavit of Ms C filed 20 December 2012 including all annexures thereto to the Psychiatrist retained by him to provide an assessment of him for use in pending criminal proceedings arising from events on 8 March 2013.
IT IS NOTED that publication of this judgment under the pseudonym Waldman & Waldman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOOWOOMBA |
BRC 8571 of 2012
| MS WALDMAN |
Applicant
And
| MR WALDMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 March 2013 I gave leave for the Respondent father to make an oral application for an order permitting the publication, pursuant to section 121(9)(d) of the Family Law Act 1975, of an affidavit filed in the substantive proceedings to a psychiatrist he has retained to provide an assessment for use in his upcoming criminal proceedings. This affidavit annexed a report from a family therapist and family consultant retained by the parties for the purposes of assisting them and the Court in relation to their parenting dispute. Although the report was not one prepared pursuant to s.62G the author of the report is a Regulation 7 Family Consultant and has styled the report as a Family Report. I will refer to it as such throughout these reasons.
Orders Sought
The father sought orders that provided for:
a)A Declaration that by virtue of section 121(9)(a) he was not restricted from disclosing the family report to the Psychiatrist he has retained to provide an assessment of him for use in pending criminal proceedings arising from events on 8 March 2013.
b)In the alternative that he be at liberty pursuant to section 121(9)(d) to disclose the family report to the Psychiatrist for the same purpose.
c)In the further alternative that he be at liberty to disclose paragraphs 144 to 169 (inclusive) and the paragraph labelled “Recommendations” of the report to the Psychiatrist for the same purpose.
The mother sought that the father’s application be dismissed.
Material Relied Upon
In support of his case the father relied upon:
a)His written submissions filed 19 & 24 April 2013;
b)His Affidavit sworn 8 November 2012 but not filed; and
c)The Affidavit of Ms C filed 20 December 2012.
The mother relied on her written submissions filed 3 May 2013.
In the mother’s written submissions a number of facts were asserted as to the details surrounding the alleged incident on 8 March and the consequences flowing to the mother and children therefrom. Those facts are more detailed than those asserted in the father’s written submissions. I am not able to make any detailed findings of fact as this application has been heard on a submissions only basis and no affidavit material has been filed addressing the facts surrounding the alleged incident on 8 March 2013. Notwithstanding that, it is common ground that the mother has suffered serious injuries as a result of an incident at her home; that some if not all of the children were present; and the father is now facing serious criminal charges.
Background
The parties were married in 1990 and separated in July 2012. They have four children: [W] aged 16; [X], 15; [Y], 13; and [Z] who is 11 years of age.
The mother filed her Initiating Application seeking parenting orders on 20 September 2012. The father has not filed a Response. When the matter came before the Court on 1 February 2013 the parties had already obtained the family report from Ms C that is the subject of this application. On that day I was informed the parties were having discussions and the matter was adjourned to 22 March 2012.
On 8 March the mother sustained serious injuries as a result of events that occurred at her home. As a result of these events the father has been charged with the following criminal charges:
a)Wilful Damage;
b)Dangerous Operation of a Vehicle;
c)Entering a Dwelling with Intent; and
d)Acts Intended to Cause Grievous Bodily Harm.
He has been remanded in custody. In light of concerns as to the father’s capacity and mental state at the time of the alleged offences, his criminal solicitors have arranged for the father to be psychiatrically assessed with the view to potentially having him referred to the Mental Health Unit. To assist in that process the father wants to be able to provide the assessing psychiatrist with a copy of the family report. The mother opposed its release.
Legal Approach
Section 121 of the Family Law Act 1975 provides for certain restrictions on the publication of family law proceedings. Section 121(1) reads:
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
The phrase “disseminates to the public” has been held to be a reference to widespread communication with the aim of reaching a wide audience.[1]
[1] See Morling J in Re Edelsten (a bankrupt); Donnelly v Edelsten and Others (1988) 12 FamLR 294
The ‘harm’ s.121 aims to avoid is the identifying of certain persons involved or connected with family law proceedings namely the parties; a relative or associate of a party; and witnesses. Section 121(3) clearly sets out the many ways a person may be identified for the purposes of the section. That list is not exhaustive. The contents of the report of Ms C, herself a witness and therefore covered by s.121(1), would clearly identify the parties and the children.
Section 121(9) sets out a number of exceptions to this general prohibition. That section reads:
(9) The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d) the publishing of a notice or report in pursuance of the direction of a court; or
(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii) to a person who is a student, in connection with the studies of that person; or
(g) publication of accounts of proceedings, where those accounts have been approved by the court.
The father relies on two of these provisions: Sections 121(9)(a) and (d).
Before considering the competing submissions I am mindful of the decision in AH & SS[2] where Chief Justice Bryant considered the policy behind Section 121. Her Honour said:
[2] [2005] FamCA 854, (2006) 34 FamLR 24 at 29
[26] Section 121 of the Act was inserted into the Family Law Act upon its inception. It is commonly accepted that when the Family Law Act was enacted, section 121 was placed in the Act to overcome prurient reporting that had occurred prior to the passing of the Family Law Act in relation to parties who were involved in divorce proceedings.
[27] Initially the court was a closed court, but subsequent amendments to the Act made the court open so that members of the public were free to attend and listen to, and observe the proceedings. What they were not permitted to do however, by virtue of section 121, was to publish an account of the proceedings which identified parties or witnesses in the manner that I have described.
[28] In 1997, in a document headed Publicity in Family Law Cases, the Honourable Ian McCall reported to the Attorney‑General for the Commonwealth on proposals for amendments to section 121 of the Family Law Act. At page 54 of that document some of the policy behind section 121 is identified. The document says in particular:
Family law is an area of law which touches a vast number of people in the Australian community. It is also an area which interests many more who are not immediately involved in the administration of the law by the Family Court. As section 121 is now drafted, these persons are denied the opportunity of obtaining information concerning the administration of family law.
As has been pointed out, the amendments of 1983, which were passed because of the criticism generated because of the closed system of justice in the Family Court, have not overcome this problem. It is true the courts were opened. However, few people attend. Publicity was permitted, but the effect of the stringent restrictions on identifying information has, in practical terms, resulted in no publicity or public discussion of cases. The community is left with its hearsay sources to ascertain what is the law and how it is administered. This is unsatisfactory.
[29] The document goes on to day at page 55:
In a court which has such wide discretionary powers, the information or educative role of the media has particular importance. It is the way in which this discretion is exercised by the application of the broad principles of the Act to specific factual situations that provide information of utility to the community. This is an ongoing process as principles are developed and refined. However, from time to time the educative role assumes far greater importance.
[30] The document then went on to consider the other side of the argument and at page 56 said the following:
A policy of retaining non-identifying publicity in cases strictly dealing with parenting of children can be justified. This is the legislative approach that has been taken with respect to children's courts. This was the position at common law with respect to wards, although the restriction was not unlimited in time. This is the position taken in England and New Zealand. It is not, however, a universally held view.
[31] They are some of the competing policy proposals which relate to the genesis of section 121 and indeed its maintenance in the Family Law Act.
[32] In relation in particular to section 121(9)(d), the exception when the court directs publication, the Act gives no guidance as to how that discretion should be exercised, but I am assisted by various decisions of the court. In F and R (No 2) (1992) FLC 92-314 Fogarty J considered the background to the enactment of section 121. In doing so he identified as relevant criteria the best interests of children and whether the matter involved raised an issue of public interest. At page 79-354 his Honour said:
Whilst the welfare of the child may not be the absolute determinant of the matter, it is, nevertheless, a most critical circumstance.
[33] In Re Lowe, Herald and Weekly Times Ltd (1995) FLC 92-592 Nicholson CJ, as he then was, released information by way of a media report about a case and said at page 81-853:
It is certainly true that the authorisation of publication is often of considerable assistance to the Court in matters such as the location of children. However, I do not believe that it should be confined to that object. There is a recognised right of freedom of public discussion of matters of legitimate public concern.
[34] His Honour then quoted from the judgment of Deane J in Hinch v Attorney‑General (Vic) (1987) 164 CLR 15 at 57:
Freedom of public discussion of matters of legitimate public concern is, in itself, an ideal of our society. The fact that judicial proceedings have been instituted does not remove such matters from the area of legitimate public comment, public discussion and public inquiry. Matters of importance or concern or interest to the nation, to a particular section of the community or to particular individuals, are commonly involved in judicial proceedings and it would be oppressive and futile to adopt the approach that the mere fact that they are so involved should automatically remove them from the public domain.
[35] Dawe J took a similar view more recently in B v Minister for Immigration and Multicultural and Indigenous Affairs and The Advertiser Newspapers Ltd (unreported judgment delivered on 6 September 2002). At paragraph 23 her Honour said:
In relation to the order that is to be made, I accept that there is a public interest in the type of these proceedings and the very arguments that are before the court. I think the public would benefit greatly from an informed, intelligent debate about the laws that parliament has put in place in relation to matters in the Family Law Act and other matters which are before the court, namely the Migration Act. Those matters in my view can be publicly aired in an appropriate manner, whilst at the same time exercising care that the parties and the children are not identified.
The cases referred to by the Chief Justice involved the widespread communication to the general public. In this case the father seeks to provide the report to a medical professional. The mother is concerned however that by doing so there is potential for its contents to form part of any criminal proceedings which will be heard in open court. It must be remembered of course that family law proceedings are also heard in open court.
In Re Edelsten (a bankrupt); Donnelly v Edelsten and Others[3] Morling J when considering the giving of evidence in bankruptcy proceedings about evidence given in family law proceedings had this to say:
[3] (1988) 12 FamLR 294
Quite apart from the involuntary nature of such answers, I do not think a witness who gives such answers disseminates to “the public” the information contained in the answers. The publication, if it be regarded as such, is to the court. Compare In the Marriage of T & T [1984] FLC 91-588 where a Full Court of the Family Court of Australia held that the transmission of documents to the Attorney-General or to responsible officers in his department was not a publication to the public or to a section of the public of the information contained in the documents.
Counsel for the Deputy Commissioner submitted, in my view correctly, that in the context of s 121 “disseminates to the public” should be taken as a reference to widespread communication with the aim of reaching a wide audience. It cannot have been intended by the legislature that the restriction on dissemination should apply, for example, to conversations between a party to Family Court proceedings and a close personal friend.
Prior to amendments made to the Family Law Act in 1983, s 121(1) provided as follows:
121(1) A person shall not print or publish—
(a) any statement or report that proceedings have been instituted in the Family Court or in another court exercising jurisdiction under this Act; or
(b) any account of evidence in proceedings instituted in the Family Court or in another court having jurisdiction under this Act, or any other account or particulars of any such proceedings.
Section 121(1), in its old form, was considered by a Full Court of the Family Court of Western Australia In the Marriage of Bateman and Patterson (1981) 7 Fam LR 33; 51 FLR 263; [1981] FLC 91-057. It was there held that the use of pleadings, affidavits and transcript of evidence in Family Court proceedings in proceedings under the Bankruptcy Act did not amount to publishing that material within the meaning of s 121(1) of the Act in its then form. This decision is consistent with the view I take of the Act in its present form.
Even if I had been of the view that s 121(1) of the Family Law Act applies to answers given by a witness examined under s 81 of the Bankruptcy Act, I would have held that Mrs Edelsten would be protected by the provisions of s 121(9)(a) of the Family Law Act, which provides as follows:
121(9) The preceding provisions of this section do not apply to or in relation to—
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings.
Section 121(9)(a) was substituted in 1983 for the former s 121(5)(a) which, in relevant respects, was in almost identical terms. In R v Howe (1978) 19 SASR 303; 4 Fam LR 166 the Court of Criminal Appeal of South Australia held that the former s 121(5)(a) operated so as to exclude from the operation of the former s 121(1) (which was in terms not dissimilar to s 121(1) of the Family Law Act in its present form), a reference by counsel to evidence given in proceedings in the Family Law Court by persons against whom proceedings were subsequently brought in the Criminal Court. I respectfully agree with this decision. In Howe, the Court held that the phrase “persons concerned in the proceedings” in s 121(5)(a) were apt to include, inter alios, judge, counsel, reporters and any members of the public present in court. Section 121(9)(a) was inserted into the Family Law Act after Howe's case was decided. I think it is plain that the legislature must have intended that s 121(9)(a) should give the same immunity from prosecution as was given by the almost identical provision which it replaced. It therefore seems to me that if answers given by Mrs Edelsten disclose something that appears in the transcript in the Family Court, she would be protected by s 121(9)(a).
Submissions and Discussion
It was argued on behalf of the father that the Affidavit of Ms C annexing her family report constitutes an “other document” pursuant to s.121(9)(a), and accordingly there exists no basis to restrain its disclosure to the Psychiatrist, who is “concerned” in the Father’s criminal proceedings. A declaration was sought to that effect.
The mother argued that any findings of the psychiatrist as to the father’s mental capacity impact upon whether or not that report is ultimately utilised by the father in his criminal proceedings, depending of course on whether or not the report is favourable or unfavourable to him. It was submitted that s.121(9)(a) of the Act does not apply because the psychiatrist the father wishes to publish the family report to has not been retained for the assistance of the Court nor has the Court directed a report be obtained by a psychiatrist. The obtaining of a psychiatric report is a decision by the father and the father’s solicitors.
Whilst it is true to say the decision to retain the services of a psychiatrist is that of the father’s, it is one that is open to him in the preparation of his criminal proceedings. I am satisfied that the father’s criminal proceedings are “proceedings in any court” as contemplated by the subsection.[4] The family report is evidence in the family law proceedings and therefore in my view a “document” covered by the subsection. To provide a copy to his psychiatrist would be to “communicate” it. The remaining question therefore is whether the psychiatrist is “a person concerned in proceedings”.
[4] R v Howe (1978) 19 SASR 303; 4 Fam LR 166 at 169
The use of the phase “a person concerned in proceedings” appears to be of wide ambit. Morling J in Edelsten when discussing the decision of the South Australian Court of Criminal Appeal in R v Howe referred to above used the phrase “inter alios” to indicate his view that the list of potential persons referred to in that authority was not exhaustive. Although those cases involved witnesses giving evidence and therefore under compulsion I am satisfied that “a person concerned in proceedings in any court” would include a psychiatrist retained for the purposes of assisting the father in his criminal proceedings even if that psychiatrist was not ultimately called to give evidence. A defendant in criminal proceedings is entitled to mount a defence. Obtaining a psychiatric assessment in the preparation of that defence is a legitimate option open to defendants to pursue. The provisions of the section would attach to the psychiatrist upon his or her receipt of the affidavit and they would not be able to publish it further other than in accordance with the exceptions provided for in s.121(9). The situation may be different if the father sought to provide the affidavit to another psychiatrist that was not retained by him for any court proceedings. For example if he sought mental health care as opposed to an assessment from a psychiatrist he would not be able to show that psychiatrist the report under s.121(9)(a) although he may seek an order under s.121(9)(d).
I am therefore satisfied that if the father was to provide the report to a psychiatrist for the stated purpose he would not be breaching s.121(1). The father has sought a declaration to that effect. Whilst the Court has power to make a binding declaration of right[5] in my view it should exercise care in doing so.[6] It is a discretionary power. Gibbs J in Foster v Jododex Australia Pty Ltd[7] held that it was neither possible nor desirable to fetter the broad discretion by laying down rules as to its exercise. Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission[8] after referring to Foster held:
However, it [the discretion] is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The persons seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”.[9]
[5] Section 16(1) Federal Circuit Court of Australia Act 1999
[6] See Jenkins v NZI Securities Australia Ltd and Others (1994) 124 ALR 605
[7] (1972) 127 CLR 421 at 437
[8] (1992) 175 CLR 564 at 582
[9] References and citations removed from quote. See In re Judiciary and Navigation Acts (1921) 29 CLR 257; Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Ltd [1921] 2 AC 438 at 448; University of NSW v Moorhouse (1975) 133 CLR 1 at 10; and Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 and 189. See also summary by Lockhart J in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 at 670
Although I am satisfied that the issue in question is neither hypothetical nor abstract and the father has a real interest in raising the issue, the declaration is raised in relation to a possible future event. One however that is likely to occur. In my view the declaration is unnecessary as what is sought is merely a restatement of the law to cover an intended action. Any breach of s.121(1) would not arise until there has been a publication or dissemination in a way that does not attract the exceptions set out in s.121(9). That is something that can only be determined on the facts after the event. Accordingly I will decline the request to make the declaration.
In case I am wrong in finding that the father is permitted to disclose the affidavit pursuant to s.121(9)(a) I propose to consider whether it is appropriate to exercise my discretion to allow him to do so pursuant to s.121(9)(d).
It was submitted on behalf of the mother that in the ordinary conduct of criminal court proceedings and in circumstances where a defendant’s mental health at the time of the commission of an offence is in question, the defendant does not ordinarily have access to a family report therefore the father in these circumstances will be in no worse position than any other defendant as a result of the Court exercising its discretion not to allow the publication of the family report. It was further submitted that given the nature of the report writer’s qualifications and that no psychometric testing was undertaken the report would be of little value to the psychiatrist undertaking the assessment and that as the report contained a number of unsubstantiated and untested allegations by the father the mother would be prejudiced.
The report may or may not be of any value to the psychiatrist conducting the intended assessment but in my view it may at the very least assist the psychiatrist to understand the context and the father’s perception of the family dynamic in making an assessment as to his culpability for the offences with which he is charged. One is entitled to assume that a properly briefed psychiatrist familiar with court processes would understand that factual assertions in an untested report are purely that. I do not consider the mother would be prejudiced by the report being read and used by the psychiatrist. As I have already said the father is entitled to mount an appropriate defence. To prevent him from using the report in the way intended may compromise his ability to do so.
It was further submitted that the Court’s primary consideration should be the best interests of the children and the release of the family report for the sole purpose of assisting the father in defending his criminal proceedings in which both the mother and the children are alleged victims would not advance the interests of the children nor protect them from further harm. I am not persuaded that this is the case. A psychiatric assessment that has been prepared with appropriate and full information will ultimately assist a resolution of the criminal proceedings which would be in the children’s best interests. I am not persuaded that the release of the report for the purpose intended will of itself cause harm to the mother or children. I will therefore exercise my discretion and make the order sought.
The father had as an alternative order a release of a limited part of the family report dealing only with the author’s summary and recommendations. To restrict the report’s release to that part alone would not do justice to either party or the children as it would deny the reader of the report an ability to understand the context in which the conclusions were drawn and recommendations made.
For these reasons I will make the Orders set out at the beginning of this judgment.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 6 August 2013
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