Wardell and Wardell
[2013] FCCA 342
•23 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARDELL & WARDELL | [2013] FCCA 342 |
| Catchwords: FAMILY LAW – Practice and procedure – parties’ involvement in witness protection program – whether a subpoena or section 69ZW order to the police ought be issued. |
| Legislation: Federal Circuit Court Rules |
| England & McGarat [2007] FamCA 1697 T & F [1999] FamCA 738 |
| Applicant: | MR WARDELL |
| Respondent: | MS WARDELL |
| File Number: | PAC 2214 of 2011 |
| Judgment of: | Judge Harman |
| Hearing date: | 4 March 2013 |
| Date of Last Submission: | 4 March 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 23 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lohitharajah |
| Solicitors for the Applicant: | Slater & Gordon Lawyers |
| Counsel for the Respondent: | Mr Ulbrick |
| Solicitors for the Respondent: | G & D Lawyers |
ORDERS
Each of the parties shall forthwith and within 7 days of this order (and if they have not already done so), provide notice to the Commissioner of Police NSW of the existence of these proceedings and the fact that they are and will be required to give evidence in these proceedings.
IT IS NOTED that upon each party giving notice to Commissioner of Police NSW of the existence of these proceedings that the Commissioner of Police NSW must, pursuant to section 31B of the Witness Protection Act 1995 (NSW), provide to the Court a nondisclosure certificate as described therein and containing the information set out therein.
I direct that all future conduct of these proceedings shall occur in a closed Court.
I decline to issue an order pursuant to section 69ZW of the Family Law Act 1975.
The listing of the proceedings at 9.30am on 28 June 2013 for further mention and directions (following the release of the family report) is confirmed.
IT IS NOTED that publication of this judgment under the pseudonym Wardell & Wardell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2214 of 2011
| MR WARDELL |
Applicant
And
| MS WARDELL |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to competing parenting applications between Mr Wardell (who is the Applicant father) and Ms Wardell (who is the Respondent mother).
The children the subject of the proceedings are:
a)[X] born [in] 2004 (and thus aged 9 years of age); and
b)[Y] born [in] 2006 (soon to turn 7 years of age).
The two children presently live with their father.
The arrangements for the children spending time with their mother are unclear from the evidence filed. However, it would appear that the children have lived with their father since approximately 24 September 2010 and have spent some time with their mother since then, although the regularity or specificity of those arrangements is not apparent from the Affidavit material filed to date (noting that the Affidavit material filed to date is sufficient to comply with the Federal Circuit Court Rules in identifying issues rather than pleading all evidence relied upon by the parties).
An issue that arose early in the proceedings was a disclosure by the Respondent that the parties and each of them have previously been involved in criminal proceedings and, as a consequence of same, are both subject of orders under the Witness Protection Act 1995 (NSW).
As a consequence of the above disclosures and consistent with the Court’s obligations pursuant to section 67ZBB of the Family Law Act (the parties and each of them having alleged violence by each towards the other and, in the case of Mr Wardell, having alleged violence by
Ms Wardell towards the children) the parties were asked, through their Counsel, whether notifications had been made to the Police with respect to those matters. Each having answered in the affirmative, the parties were then asked whether they objected to an order being made pursuant to section 69ZW compelling the production of material by Police.
Each party indicated their involvement in the Witness Protection program and thus suggested concern as to whether it was possible or appropriate for such an order to be made or for any subpoena to issue which would identify the real names of the parties and such as would disclose their former, now protected, identities.
On 17 October 2012, and in light of those maters, notations in orders were made as follows:
12. IT IS NOTED that it is suggested that the parties are, as a consequence of their inclusion in and involvement in the witness protection program, known to the NSW Police and other law enforcement agencies by names other than those presently used by the parties, and on that basis it has not to date been possible for an order to be made pursuant to s.69ZW or subpoena to issue to obtain material that might be, or might be suggested to be, relevant to the proceedings.
13. Each party shall within 42 days undertake such research and obtain such instructions as are necessary to allow the legislative basis (if any) to be indentified as would preclude or would otherwise impede orders and directions being made pursuant to s.69ZW or s.69ZX to obtain relevant information and evidence, so that full and appropriate submissions can be made as to whether that material is necessary and relevant and, if so, whether it can and/or should be obtained and thus made available to family report writer and the Court.
14. The proceedings are adjourned to 9.30am on 31 January 2013 for further mention and directions and on which date, inter alia, any application regarding the above evidential issues will be dealt with.
On 31 January 2013, the father’s solicitors withdrew from acting. On that basis the proceedings were further adjourned with a notation that on the next occasion the Court would consider:
What orders, if any, are sought and or should be made to facilitate production of material by the NSW Police and other agencies in light of the parties’ engagement in a witness protection program.
When the proceedings came before the Court on 4 March 2013, submissions were put with respect to the issue.
There would appear to be three clear issues relating to the matter and which should be specifically addressed and being:
(1)Is such material as may be held by the police relevant?
(2)Is the material required?
(3)Can the material be produced and, if so, how?
Is the material relevant
Section 55 of the Evidence Act 1995 sets out the basic principle of evidence, namely that evidence is admissible if it is relevant.
Whilst each of the parties has raised allegations with respect to family violence (within both the previous and present definitions of same) neither would appear, from the relief sought by them, to suggest any clear or specific relevance of any past allegation of violence.
Ms Wardell, by her Amended Response filed 15 October 2012, seeks orders, inter alia, that:
(1)That the parties have equal shared parental responsibility for the children.
(2)The children live with their mother in the event the father seeks to relocate outside the Sydney metropolitan area.
(3)That provided the father lives within the Sydney metropolitan area the children live with him and spend time with the mother:
(a)Each alternate weekend from Friday to Sunday;
(b)Half of school holidays;
(c)Other periods as agreed.
Mr Wardell, by his Amended Application filed 14 September 2012, seeks orders, inter alia, that:
(1)The father have sole parental responsibility for the children.
(2)The children live with the father.
(3)The father be permitted to relocate the children to Queensland.
(4)The children spend time with the mother:
(a)For half of the Christmas school holidays in each year;
(b)For half of all short school holidays;
(c)Such times as otherwise agreed between the parties.
Notwithstanding that both the material filed by the father and the Child Inclusive Child Dispute Conference memorandum produced following an attendance by the parties on 20 September 2012 suggests that each party alleges family violence as regards the other and that Mr Wardell alleges family violence by Ms Wardell towards the children, neither party seeks any restraint as against the other with respect to violence or other behaviour by that parent towards the other parent or the children.
One might infer from the relief sought by the parties and each of them that they do not consider that the allegations that they have related to the Family Consultant (and which are not canvassed in any detail in their Affidavit material) are relevant to the Court’s determination.
The relevance of family violence, however, is not a matter to be determined by the parties. It is mandated as relevant by the statute.
A number of provisions of the Family Law Act identify family violence as a relevant consideration. Indeed, family violence is fundamental to all that the Court does.
The starting point of the legislative pathway are the objects and principles set out in section 60B which identify behaviours which would cause physical or psychological harm to children including exposure to family violence.
Section 61DA (which contains the presumption of equal shared parental responsibility) provides that the presumption is rebutted by evidence, on reasonable grounds, that family violence has occurred.
Section 60CC specifically refers to family violence and family violence orders as relevant matters to the Court’s consideration.
Section 60CG requires that the Court consider the risk of family violence and ensure that orders are consistent with family violence orders and do not expose any person to an unacceptable risk of family violence.
Section 60CF requires that the Court be informed of relevant family violence orders.
Most germanely, section 67ZBB (and its predecessor) requires that the Court take prompt action in relation to allegations of family violence and including:
(2) The court must:
(a) consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained [emphasis added] as expeditiously as possible; and
(ii) to protect the child or any of the parties to the proceedings; and
The obligations under section 67ZBB are triggered by the filing of a Form 4 Notice of Abuse or Family Violence. Neither party has filed such a Notice although clearly that disclosed by them to the Family Consultant (but not in their Affidavit material) would suggest that a notice is warranted and, indeed, required.
On the basis of the above it would appear that past involvement with the police in connection with family violence is relevant.
Is the material available
Each of the parties would appear to assert, again through their representations to the Family Consultant and as then reported by the Family Consultant in their memorandum, that there has been some past involvement with the Police. However, it is not clear whether the involvement of the parties with the Police and thus records maintained by that agency (including records with respect to convictions and imprisonment) have any reference to suggested family violence.
To the extent that the information held by the Police relates to matters unrelated to family violence between the parties, that material might still also be relevant. Each of the parties has disclosed that their concerns relate to prior and/or present involvement of the other parent with organised crime, drug-dealing and other forms of crime.
Clearly, from the disclosures made by each of the parents, there is material held by the NSW Police. Its relevance, without it being produced to the Court, is unclear to the extent that they are records which relate to involvement with that agency and activities not directly connected (at least it would appear) with family violence.
Can the material be produced and, if so, how
From the outset the proceedings have been adjourned to enable the parties to make submissions regarding the appropriateness of orders pursuant to section 69ZW and/or the issue of subpoena by the parties.
For an order pursuant to section 69ZW or subpoena to produce material to be effective or have any validity or integrity it would be necessary for the former names of the parties to be known.
The submissions put by the parties and each of them and the authorities to which the parties have referred, would specifically relate to efficacy, legality or otherwise of orders being made compelling the disclosure of that information.
In the Applicant’s case it is submitted that if a subpoena is to be issued to the Police that it should issue and the Police should then be given the opportunity to appear to object to production should they consider it appropriate. Whilst that course is urged upon the Court in the Applicant’s case, there would appear to be some difficulty in that course being undertaken as there would appear to be a preclusion, by operation of section 32 of the Witness Protection Act 1995 (NSW), of information being disclosed about the identity or location of a person who is or who has been a participant in the Witness Protection program. The identification of such information is subject to criminal penalty.
Section 33 of the legislation creates an offence whereby disclosure of that information “either directly or indirectly” is a criminal offence punishable by imprisonment for up to five years.
In the above circumstances, I am not satisfied that it would be appropriate to allow, cause or permit either party to file a subpoena in the proceedings which identified themselves or the other parent by their former identity and to then serve that subpoena upon the police.
I have been referred by Counsel to two authorities, namely:
a)A decision of Justice Burr in England & McGarat [2007] FamCA 1697. In that decision his Honour adopted a clear view regarding the inappropriateness of an issue of a subpoena in such circumstances. I do not propose to cavil with his Honour’s position. His Honour also undertook a most erudite discussion of prior authorities including the second authority to which I have been referred.
b)A decision of T & F [1999] FamCA 738. This case involved a Case Stated referred to the Full Court by Faulks J and posing a number of specific questions with respect to the efficacy of orders made with respect to parents the subject of the witness protection program. Again, I am satisfied by reference to the NSW legislation, that I need not cavil with any issue raised by or touched upon by the Full Court and germane to these proceedings.
Whilst submissions by Counsel for the parties have focused upon sections of the NSW legislation which would either grant to the police a basis to object to production or potentially preclude production, I note that a solution to the dilemma at hand is readily available from the State legislation.
Counsel for the Applicant has specifically referred me to three portions of the NSW legislation, being:
a)Section 26 which precludes the disclosure of the identity of a participant in the Witness Protection program, other than in closed Court;
b)Section 32 which creates the offence of disclosure of certain information by a person included within the Witness Protection program; and
c)Section 33 which creates an additional offence relating to disclosures by participants within the Witness Protection program.
It was by reference to the above provisions that, following the mention of the proceedings on 4 March 2013, orders were made by me relating to that to be included within the Family Report. On 4 March 2013 Counsel for the Applicant had indicated that the Applicant had been specifically questioned by the report writer as to his former names and details (being those prior to his inclusion within the Witness Protection program) and was concerned that that material might, therefore, be disclosed in the Family Report.
On the above basis, and by consent, an order was made that:
Direct the family consultant who has met with the parties and is in the process of preparing a family report to:
a) Ensure no reference is made within their report to the circumstances surrounding or the fact of the parties inclusion within a witness protection scheme;
b) Ensure no reference is made within their report to any name provided to the family consultant by either party by which they are and have been known other than their names as used in the proceedings;
c) Redact and remove from any notes any reference to such information.
Whilst clearly the provisions of section 121 of the Family Law Act and the express terms of any order for the release of the Family Report might obviate against concerns for such information, if included in the report, becoming information available in the public sphere, there are other circumstances which may see that information inadvertently become available (such as any request pursuant to s.248 of the Children and Young Persons (Care and Protection) Act 1998 for a provision of the report and its subsequent release (although one would hope that due diligence would preclude same)).
The sections to which Counsel have referred me within the State legislation have not included the very provision which would appear to deal with the issue at hand.
Sections 31B, 31C, and 31D of the State legislation would appear to entirely and appropriately govern this situation. This would permit a mechanism, without involvement of the Court, by which information can be obtained, at least as regards convictions of each party. Those provisions are as follows:
31B Requirement if person given new identity becomes a witness in relevant proceeding
(1) If a protected person is or may be required to give evidence in a relevant proceeding before a court, whether under the person’s new identity or previous identity, the person must notify the Commissioner of Police that the person is or may be required to give evidence in the proceeding. Maximum penalty: 50 penalty units.
(2) The Commissioner of Police must give the court concerned a certificate (a "non-disclosure certificate") relating to the protected person.
(3) If the court considers it appropriate in the relevant proceeding, the court may disclose to each party to the proceeding:
(a) that the court has been given a non-disclosure certificate relating to a person who may be required to give evidence in the proceeding, and
(b) what the certificate states.
(4) The court may only disclose what the non-disclosure certificate states in the absence of any jury empanelled for the proceeding and the public. When disclosing the certificate’s existence, the court must inform the parties of the effect of the certificate.
31C What non-disclosure certificate must state
(1) The non-disclosure certificate must state:
(a) that the person is, or has been, included in the witness protection program, and
(b) that the person has been given a new identity under this Act, and
(c) that the person has not been convicted of any offence other than an offence stated in the certificate.
(2) The certificate must not include any information that may enable the protected identity of the person to be revealed.
31D Effect of non-disclosure certificate
(1) On the giving of a non-disclosure certificate in respect of a protected person:
(a) a question may not be asked in the relevant proceeding that may lead to the disclosure of the protected identity of the protected person or where the protected person lives, and
(b) a witness in the relevant proceeding, including the protected person, cannot be required to answer a question, give any evidence, or provide any information, that may lead to the disclosure of the protected identity of the protected person or where the protected person lives, and
(c) a person involved in the relevant proceeding must not in the relevant proceeding make a statement that discloses or could disclose the protected identity of the protected person or where the protected person lives.
(2) This section applies despite any other Act but subject to section 31E.
Thus, pursuant to section 31B there is a legal obligation imposed upon each of the parties to notify the Commissioner of Police of the existence of these proceedings. A criminal penalty applies to a failure to provide such notice.
If the parties have not already provided such notice, then the orders I propose to make will compel them to do so and will do no more than to act in aide of this Court’s (and State) jurisdiction and to compel the parties to meet their legal obligations.
Upon the provision of such notice and in the event that the Commissioner of Police holds any concern regarding the conduct of the proceedings, provision or release of information, or any other circumstance, then they would have a right of audience and to be heard.
Upon provision of notice, the Commissioner of Police must provide to the Court a non-disclosure certificate relating to the protected person (that is, each of the parties) and which discloses the offences for which that person has been convicted or, at least, the absence of convictions other than those as may be disclosed within the certificate.
The issue of a certificate will also have the effect of precluding questions relating to the persons protected identity, obviate against compulsion to answer questions relating to and which would have the effect of disclosing the protected identity and otherwise provides sufficient and adequate protection on public policy grounds and without the need for further action by the Court.
It is regrettable that the provisions referred to above (sections 31B, 31 C and 31D) were not asserted at an earlier time in the proceedings. In any event they would appear, for present purposes and having regard to the relevance which each party would seek to assert as to past criminal behaviour, to be more than adequate and sufficient to produce evidence to the Court which will allow the Court to discharge its obligations under Part VII and specifically sections 60CG and 67ZBB and to thus prioritise the children’s best interests as paramount.
In the event that further information is required and/or either party seeks leave to issue subpoena, then that issue will be addressed separately and distinct to this consideration.
On the basis of the above and noting the capacity to provide, in essence, a summary of convictions (the relevant contents of which would not appear to be an issue in dispute between the parties) I am satisfied that I need not make any order pursuant to section 69ZW. I am satisfied that the provision of the non-disclosure certificate will, for present purposes and in all probability all purposes in the proceedings, meet the Court’s obligations.
Therefore, I make orders as set out at the commencement of this Judgment.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 23 May 2013
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