Wardell and Wardell - [2013] FCCA 342

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
Witness Protection Act 1995 (NSW), ss.26, 31B, 31C, 31D, 32, 33, 34
Family Law Act 1975, ss.60B, 60CC, 60CF, 60CG, 61DA, 67ZBB, 69ZW, 69ZX, 121
Evidence Act 1995, s.55
Children and Young Persons (Care and Protection) Act 1998, s.248

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wardell and Wardell

Details

AGLC: WARDELL & WARDELL [2013] FCCA 342
Case: [2013] FCCA 342
Decision Date: 23 May 2013

CaseChat Overview and Summary

In proceedings before Judge Harman, the parties, identified as Wardell and Wardell, presented allegations of family violence and concerns regarding each other's involvement with organised crime and drug-dealing. Despite the absence of a formal Notice of Abuse or Family Violence, the court noted that disclosures made to a Family Consultant suggested such a notice was warranted. The central dispute revolved around the relevance and discoverability of information held by the NSW Police concerning the parties, including potential past police involvement related to family violence, organised crime, and other criminal activities.

The court was required to determine the appropriateness of making orders pursuant to section 69ZW of the Family Law Act 1975 (Cth) or issuing subpoenas to compel the production of material from the NSW Police. A key legal issue was whether such orders or subpoenas could be effectively made or issued without knowing the parties' former names, and the legality and efficacy of compelling the disclosure of information held by the police. Furthermore, the court had to consider the potential preclusion of disclosure under section 32 of the Witness Protection Act 1995 (NSW), which carries criminal penalties for revealing information about participants in the Witness Protection program.

Judge Harman reasoned that section 67ZBB of the Family Law Act 1975 (Cth) mandates prompt action regarding allegations of family violence, requiring the court to consider interim orders to obtain evidence expeditiously and protect parties and children. While no formal notice was filed, the court found that the disclosed information indicated a need for police records, even if not directly related to family violence, as they might pertain to organised crime and other criminal activities relevant to the proceedings. The court acknowledged the applicant's submission that subpoenas should be issued, allowing the police to object to production if appropriate, but highlighted the significant impediment posed by the Witness Protection Act. Consequently, the court ordered that each party must, within seven days, notify the Commissioner of Police NSW of the proceedings and their requirement to give evidence.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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