Wenlack & Cimorelli
[2022] FedCFamC1F 180
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wenlack & Cimorelli [2022] FedCFamC1F 180
File number(s): SYC 2881 of 2013 Judgment of: HANNAM J Date of judgment: 28 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –
Where an oral application was made at the conclusion of final hearing for an order that the Department of Communities and Justice disclose the identity of a person who made a Helpline Report – Where application made pursuant to s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) – Where application made pursuant to s 69ZW(6) of the Family Law Act 1975 (Cth) – Where consideration given to Full Court decision in Department of Family and Community Services & Jordan and Ors – Where in the particular circumstances of the case the Court is satisfied that the identity of the reporter is critically important to the proceedings and that failure to admit it would prejudice the proper administration of justice – Orders made as sought by father disclosing the identity of the reporter with a further order relating to its use as evidence in parenting proceedings relating to the children
Legislation: Family Law Act 1975 (Cth) s 69ZW
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29
Cases cited: Department of Family and Community Services & Jordan & Ors (2012) 47 Fam LR 666; [2012] FamCAFC 147
Halsen & Nasser Talbet (2010) 44 Fam LR 248; [2010]
FamCA 1065
Wenlack & Cimorelli (No.4) [2019] FamCA 854
Division: Division 1 First Instance Number of paragraphs: 110 Date of hearing: 11 March 2022 Place: Parramatta Counsel for the Applicant: Ms Tabbenor Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Crown Solicitor’s Office NSW Counsel for the Respondent: Mr Moore Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central ORDERS
SYC 2881 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WENLACK
Applicant
AND: DEPARTMENT OF COMMUNITIES AND JUSTICE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
21 MARCH 2022
THE COURT ORDERS THAT:
1.The identity of the person who made a Helpline report to the Department of Communities and Justice (“the Department”) on 12 June 2020 in relation to the children D born in 2008, E born in 2019 and F born in 2012 (“the children”) be disclosed by the Secretary of the Department by providing to the Court an unredacted copy of the report as the Court is satisfied that the evidence of the reporter’s identity is of critical importance in the parenting proceedings relating to the children under the Family Law Act 1975 (Cth) and that failure to admit it would prejudice the proper administration of justice.
2.The identity of the person who made the report referred to in Order 1 disclosed by the Secretary of the Department is disclosed and admitted in these proceedings as the Court is satisfied that the identity of the reporter is critically important to the proceedings and that failure to admit it would prejudice the proper administration of justice.
3.Orders 2 and 3 are subject to further orders related to the use to which the evidence concerning the identity of the person who made the report may be put in the parenting proceedings relating to the children as may be agreed between the applicant father and the Secretary.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Wenlack & Cimorelli is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
In parenting proceedings between the parents (“the father” and “the mother”) concerning their three children now aged 13, 12 and nine, the father seeks orders pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the state Act”) and the Family Law Act 1975 (Cth) (“the Family Law Act”) in relation to disclosing the identity of a person who made a report of alleged abuse concerning the children to a state welfare agency.
Pursuant to the state Act the identity of such a person must not be disclosed to the Court without leave of the Court. Pursuant to the Family Law Act, the Court may only disclose such information if satisfied as to certain matters. Both Acts require that the Court be satisfied that the identity of the reporter is critically important to the proceedings and that the failure to disclose the reporter’s identity would prejudice the proper administration of justice.
The applicant father contends that the Court ought to be satisfied as to both of these matters, a proposition with which the Independent Children’s Lawyer (“ICL”) agrees. The Secretary of the Department of Communities and Justice (“the Secretary”), being the agency to whom the report of abuse was made, contends that the identity of the reporter is neither critically important to the proceedings nor will failure to disclose it prejudice the proper administration of justice.
The other parties to the proceedings at the time the order was sought being the mother and the maternal grandparents did not wish to be heard in relation to this application.
I am satisfied as to both of the required matters and accordingly made the orders as sought on 21 March 2022 indicating that Reasons for making such orders would be published shortly. These are those Reasons.
BACKGROUND
For the purposes of this application I set out the following brief background to the dispute and context of the application.
The parties separated in 2013. At that time the oldest child, a daughter (“the oldest child”), was aged five, the middle child, a son (“the son”) was aged three and the youngest girl (“the youngest child”) was an infant.
The first tranche of proceedings concerning the children
In May 2013 the father commenced parenting proceedings and in the course of those proceedings the mother raised concerns about matters that appeared to her to indicate that the parties’ oldest daughter, then aged five, may be at risk of sexual abuse by the father. This allegation was ongoing for some time throughout the course of the first proceedings, together with other allegations of physical harm said to have been perpetrated by the father. According to a report[1] provided by the Department then known as Family and Community Services (“the Department”) which outlines the history of notifications in relation to the children, 10 such notifications were made at that time about concerns for the children’s welfare in the father’s care. None of these notifications were substantiated but investigation of them and the mother’s withholding the children at times led to substantial periods of time where the children had no contact with the father.
[1] Exhibit 15 (provided pursuant to an order made under s 69ZW of the Family Law AcT)
According to the same report, Exhibit 15, there was a period of almost 12 months immediately prior to the final hearing in the first proceedings in which no further notifications were made to the Department. During this period, no concerns were raised by the mother regarding the father’s care or allegations made in the proceedings that the father posed a risk of harm to the children or any of them.
Ultimately, the first tranche of proceedings were settled by orders made with the parties’ consent in the course of a final hearing in August 2015 (“the August 2015 orders”). Notations to those orders included that the mother accepts there is no unacceptable risk posed by the father on the available evidence and that the parents acknowledge that the children have a strong and loving relationship with each parent. Pursuant to these orders, the children were to spend an increasing amount of time with the father until it reached an end point of an equal shared care arrangement from term 3 2017.
Events following the August 2015 orders – ongoing complaints about the father
The parenting arrangements proceeded for some years in accordance with the August 2015 orders without apparent difficulties known to the father at the time. It subsequently came to light, however, that the mother had various concerns about the father’s care of the children commencing from a time shortly after August 2015.
Exhibit 15, the report from the Department, also records that from December 2015 notifications about the father’s care began to be received once again by the Department. Four notifications made between December 2015 and February 2016 alleged that the father engaged in excessive discipline of the children and had physically harmed them.
The mother also expressed concern in different settings about the father’s explanation of the circumstances in which the son broke his arm in 2016, and the youngest child exhibited behaviour in about 2017 that the mother considered concerning which resulted in a referral to the school counsellor.
In November 2018, the mother enrolled the children in a program (“the program”) run by a service which provides therapy for children who have experienced trauma and for the purposes of increasing children’s resilience, though the father was not aware of the nature of the agency or the enrolment of the children in the program and had not provided his consent for their participation in it. The program commenced in early 2019.
By late March 2019, a further six notifications about the father’s alleged conduct with respect to the children had been made to the Department and there were a further three notifications of physical harm, neglect, sexual harm, psychological harm and excessive discipline made concerning the father in April 2019. The April 2019 reports were investigated but none of the allegations of abuse were substantiated. The contents of Exhibit 15 indicate, however, that it was assessed by the Department that the risk of psychological harm was at that time “high"”.
Despite the allegations not being substantiated, due to the children’s apparent distress at the prospect of spending time with him, the father agreed to the suggestions of case workers from the Department at the time which brought about a significant change in the father’s pattern of care with the children. Thereafter, rather than live in an equal shared care arrangement, the children lived with the mother and spent very limited time with the father, which mostly took place in the presence of the mother and often the mother’s sister (“the maternal aunt”).
The current proceedings
The father filed an application in April 2019 seeking to revisit the 2015 orders. In that application he sought orders that he have sole parental responsibility for the children, that they live with him and spend supervised time with the mother. In response, the mother sought that the equal shared care arrangement be reinstated and that the father’s Initiating Application be dismissed.
In the course of the current proceedings, the father became aware of numerous reports made to the police and especially the Department since the August 2015 orders which alleged that he engaged in a range of abusive conduct towards the children. Exhibit 15 sets out that notifications about the father’s conduct continued from May 2019 fairly regularly until October 2019 and that by 8 October 2019, 33 such notifications had been made including 23 since the August 2015 orders.
Reports of an especially bizarre nature which have particular relevance to this application were first made to the Department and police on 3 June 2019, with a second similar report being received by the Department the following day. The first report was that the father had placed a device on the neck of all of the children which was used to track them as well as electrocute them when they misbehaved. In the report on 4 June 2019, the device was described as a taser device and tracking device which was allegedly strapped on the necks of the children by the father and “zapped” them when they were naughty.
This notification, along with all of the other reports of the father’s maltreatment of the children in the proceedings, was not substantiated by the Department when it was made in mid-2019, nor did it lead to any further action by the police.
Events after the children moved to live with the father
For reasons given in Wenlack & Cimorelli (No.4) [2019] FamCA 854, the children began living in a completely new parenting arrangement from 5 October 2019, the day on which they were recovered from the mother and pursuant to orders made on the previous day moved to live with the father. Since that time, the children have continued to live with the father and have spent defined supervised time only with their mother and in more recent times with their maternal grandparents who are also parties to the proceedings.
After moving to live with the father, the intensity of the notifications about his allegedly abusive conduct significantly abated. According to Exhibit 15, only three further reports were received by the Department alleging that the father posed a risk of psychological harm to the children. These were made in the days following the execution of the recovery order on 5 October 2019.
Although the mother does not contend in the parenting proceedings that the father poses any unacceptable risk to the children and she had no involvement in any notifications made to the Department, it is also apparent from Exhibit 15 that she continued to suggest in email correspondence with the father that the Department have an ongoing role with the family even after orders had been made for the children to live with him. In particular, it is apparent from emails in relation to the children’s time with her over Christmas in 2019 that the mother continued to remain in contact with the local branch of the Department and a particular case worker who offered to pick the children up and drop them home and supervise contact events. This suggestion was rejected by the father for various reasons including that it was inappropriate for the Department to be involved, a position which is consistent with the orders made by the Court and as the Secretary has not intervened in the proceedings.
Although there is some dispute about the details concerning this event, there is no dispute that on 2 March 2020, the maternal grandparents and maternal aunt attended the oldest child’s school swimming carnival and made contact with this child on that occasion, although the father was not aware of this contact at the time. When this child met with these members of the maternal family on that occasion, the maternal grandfather provided her with his mobile phone number and this child also received the phone number of a friend from her previous school (where she was enrolled prior to 5 October 2019) (“the child’s friend”). It is the father’s case that this information was provided covertly to the oldest child.
On the following day, March 3, the father received a call from the director of student welfare at the oldest child’s school who informed him that this child had come to her very distressed and threatening self-harm and had been taken to see the school psychologist. The father deposes that after school that day the oldest child was visibly distressed and initially refused to leave the car. When she settled down that evening, she informed the father that she had met the friend from her previous school, she and the friend had swapped phone numbers and that she had subsequently sent the friend a message in which she said “some bad things” about the father which she had later regretted.
A short time later on the same evening, the father was shocked to find two police officers at his home who said that they were undertaking a welfare check on the oldest child due to a complaint that had been made by the father of the child’s friend as a result of the text messages to the friend about the father’s conduct. The father was then informed by the police officer that when the oldest child was spoken to alone about the messages, she burst into tears and immediately admitted that she had made up the allegation about her father because she understood that lying about being abused by the father and about wanting to harm herself was a way of seeing her mother quickly.
The father deposes that subsequently when he had further conversations with the oldest child about the circumstances in which she received the phone number of her friend, this child again broke down in tears and confessed to having lied about meeting the friend to obtain the phone number. He deposes that the oldest child confessed that when the maternal grandparents and maternal aunt all unexpectedly attended her swimming carnival, they provided her with the phone numbers of the maternal grandfather and the friend.
Records produced on subpoena by police and the Department indicate that a notification was made to the Department about the father on 3 March 2020 and by the father of the child’s friend to police, which caused the welfare check from police and a further interview of the oldest child at school by a Departmental caseworker who had been involved with the family since at least the time the recovery order was issued.
The father deposes to having concern about ongoing Departmental involvement in the parental dispute at the behest of the mother where the Secretary has not intervened in the proceedings and deposes to information being given by the caseworker to the children which he contends is inappropriate.
The father’s concern arises as he deposes that in the course of her ongoing casework the particular caseworker has made statements to both himself and the children that she did not believe that the children’s time with the mother should be supervised and that the existing court orders restricting that time were not appropriate or warranted.
The events of 2 and 3 March 2020 also led to involvement of police a month later on 2 April 2020 when the father of the child’s friend again attended on police asking for an update on the investigation into the matters of concern he previously raised. This led to another police welfare check on the oldest child at 9.30pm on 2 April at a time when the child would normally be asleep, and further Departmental involvement.
The ongoing involvement of the Department with the family includes on 8 April 2020 the caseworker undertaking a lengthy virtual home visit by FaceTime (a time when the restrictions associated with the COVID-19 pandemic were in place) at the father’s home and speaking to the children at length. The father’s sister (“the paternal aunt”), with the agreement of the caseworker, was a silent observer to this visit in which the father deposes that the caseworker had further conversation with the son suggesting that the orders in place with respect to the children’s time with their mother may not be “right” and stressing the importance of the children being able to see their mother “a lot” if not living with her.
The father also deposes to the mother regularly including the caseworker from the Department in email correspondence between the parties and that the mother responded that she was doing this as the caseworker had “expressed an interest in being updated on the contact situation; for efficiency and transparency reasons”.
The next notification to the Department about the children appears to be the report of 12 June 2020 (“the June 2020 notification”) made by a mandatory notifier whose identity the father seeks in this application be disclosed.
The 12 June 2020 notification
Neither party deposes in their respective affidavits to any matter relating to the circumstances in which this notification was made. Evidence of the notification was contained in documents produced on subpoena by the Department and admitted in the proceedings[2].
[2] Exhibit 35.
The notification in question was received as an “e-report” and appears to have been in the form of an email with documents attached. The email is in the following terms:
To whom it may concern.
Attached please find my report stating concerns for the safety of the three children of [the mother] and [the father].
I found the online form extremely difficult to fill out and was advised some time ago that I may use this email address for any reports I feel I should make.
(Emphasis added)
The first document annexed to the email is headed “Helpline report – dated 12 June 2020” and is described as a “mandated report”. This report includes the following:
As a mandatory reporter I am obliged to report that I have reasons to believe that the three [name deleted] children are in a harmful situation, living with their father who may have used an electronic Dog Training Device as a form of discipline on his children, causing fear and pain, particularly to the oldest boy [name deleted] in this case.
I’ve attached the drawings of the two oldest children [named]. Their drawings closely resemble the front panel of a remote control for a Dog Training Device used by people to discipline dogs.
I respect, and will accept, whatever conclusions are reached by the caseworkers of the Joint Child Protection Response Program (JCPRP) after reading my report, however believe information provided by me might be considered as fresh evidence.
Notably, NSW has banned the use of such Dog Training Electronic Devices, except under certain circumstances as written on page 3 of this report.
I was assured by the mother that the father has never owned a dog and that there is no dog at his house.
It is my understanding that the drawings of [the two oldest children] depicting the remote control have not been viewed by the caseworkers of the Joint Child Protection Response Program (JCPRP).
Also attached are drawings, which I believe the caseworkers have not viewed, made by the boy [named] depicting him using a gun, a knife and other weapons to kill or harm his father.
Having viewed these drawings I submit this report with serious concerns as to the level of psychological abuse the children may be subjected to, particularly the boy [named].
My concerns were raised when I was contacted by [name deleted] the mother of the three children early in 2019. I provided support for approximately one month then lost contact with her when someone else was attempting to help her and I felt I should not interfere with the work of another.
Some weeks ago [the mother] reconnected with me expressing her concerns for the children, who were removed from her care in 2019. I asked her reasons for being concerned and she then shared the words of her children when they told her of how they were “zapped” by what I now believe to be an illegal electronic Dog Training Device.
(Emphasis added – otherwise as written)
The report then goes on to describe what the children told their mother about the father putting the device around their necks and the way in which the device was said to have harmed them. The report also describes the reporter finding “the honesty of all three children in this regard impressive”. The reporter also then describes browsing the internet herself to obtain more information about the dog collar training device and then says that “this information, along with the drawings of [the older two children] depicting remote controls persuaded me that it is indeed possible that the device may have been used on the [name omitted] children”. Extracts from New South Wales statutes dealing with electronic dog training devices are then set out in the report. The reporter then writes “I am unsure to what extent the children have disclosed to caseworkers of the Joint Child Protection Response (sic), however I do believe they have aptly described an electronic Dog Training Device to the mother”.
The report then goes on to provide a commentary on the attached drawings of the remote control said to have been drawn by the two older children which includes reference to things “stated” by the son and to this child’s “notes” written around his drawing of the device (attached to the report). The report then says:
The designs of the devices vary, however the face panel of the remote controls are similar in that they have buttons to raise or lower the power of the electric current to administer to a dog. [The son] wrote his description emphasizing with asterisk to depict the frequency of his father “favouring” what he called the “extreme” button highlighting the levels of current used. His writing was difficult to read and I’ve provided my transcription for easier reading with spelling corrections. I believe you will find my transcription is accurate…I am aware that the children wrote private notes expressing feelings regarding their father, which according to the mother, have not yet been viewed by caseworkers. At my request the mother searched for evidence of notes and can produce these if requested.
I am hopeful that the information I provide raises fresh concerns and that the case will remain open and under the watch of state welfare authorities.
(Emphasis added)
Attached to the report are a number of additional documents. First, there is a page with writing and drawing which bears the date “14-5-19” and some type-written commentary containing the writer’s opinion of what is depicted on this page. This includes statements such as “this drawing depicts the psychological distress levels of the boy [name omitted] and suggests he has thought of ways to use weapons upon his father” and “the subjects mentioned in the circled words below the drawings were most likely the subject areas where [the son] felt inadequate”.
The next annexure is four handwritten pages from a notebook. There is a transcription of each of the written pages. One page is transcribed as being a drawing of the zapper remote control with settings (though it is not apparent that this description is written on the page in question). In addition to the words appearing on the diagram, the transcription includes some commentary such as “in this field [the son] has depicted lots of fingerprints, depicting that this is the button his dad uses most - aka his dad’s “favourite button ever” to use on him”. On another page, the transcription is as follows:
My signature
So my dad***as one of the millions of punishments he used to put a tracking devise(sic) which is over there <-* with a dog collar zapper remote control and made me do 10-15 laps around the block at night time and so if I went off track I knew I was dead because he would zap me and in the night I would cry myself to sleep even if all of those things happened is happening and will happen if FaCS or somebody helps us and until then I will not give up
My signature
By the way I made that up to inspire other kids whether better, the same or even worse you can do it!!
The last page is transcribed as:
F***k u D
Actually fuck u D u dumbass
You’ve ruined my
Life but
I will not give up
You’ve pushed me down 7 times in 1
Will get up 8 times
This transcription also includes the words “(D = Dad)” even though there is no corresponding handwritten entry.
The final page is a handwritten document with some drawings attached with staples which says:
When [the son] or [the oldest child]
“stuffed up” Dad would
Zap them by pushing
a button on the zaper.
He could also make
The zap hurt more or less when he wants
High-midium-low
(As written)
Underneath a drawing are written the words “stoping dad for sure” (As written)
The typewritten commentary below this document is as follows:
[The oldest child]’s drawing and description above of the dog training device and electronic zapper and remote control is extremely similar to those drawn by [the son], with settings described as “high medium and low”. You will note both children draw a lightning bolt on one of the buttons, which I was told by the dog training company is the button which administers the electric current. It is likely that the darkest blackish- coloured drawing is [the oldest child’s] attempt to show an electronic signal transmitting.
As previously noted, the mother does not refer to this notification in her affidavit or to any other notifications made to the Department other than the children’s own helpline reports on 7 and 8 October 2019 and the report by the service who conducted the program which the children attended in early 2019 on 19 March 2019.
Under cross-examination about the 12 June 2020 notification, the mother initially said she did not recall whether she had spoken to anyone about the electric dog collar allegations after mid- 2019 (when they were originally made and investigated), but then agreed that she gave “people” drawings and notes that the children made about the disclosure if she was asked. When asked why she needed to speak to people about this matter, the mother said that she was seeking legal representation at the time but denied that the only people she spoke to about the allegation were her lawyers.
Under cross-examination about the 12 June 2020 notification, the mother was then taken to statements within the report about information that the reporter says she received from the mother. These include that the reporter “was assured by the mother that the father has never owned a dog”. The mother denied that that was an accurate description of what she had said to the reporter but later agreed that she had given the reporter this information.
When the mother was asked who raised the question of whether the father had a dog she answered that she only knew the person’s first name, Ms RR or Ms SS, and that this person was called “Ms TT” by the mother. When asked about the context in which she had a conversation with this person, the mother said she was someone recommended to her who could “make legal recommendations” as the mother was at that time looking for legal representation. The mother then agreed that she first met and spoke to this person in early 2019 but said it was not accurate that the person provided support to her for approximately one month. The mother agreed that she made contact with this person again in 2020, about three weeks before the report was made, though the mother added that she did not know when that report was made.
When asked under cross-examination about the written documents and drawings annexed to the 12 June 2020 report, the mother agreed that the person reporting would only have had those documents because she gave them to her. The mother could provide no other explanation for giving the drawings to his person other than that the person asked for them and that the mother was “looking for help”. The mother then reiterated that this person asked to see the drawings and writing from the children “because she was interested”. The following question was then asked and answered:
Are you saying that this person didn’t tell you that they were going to make a notification? --- That’s exactly what I’m saying. She didn’t tell me she was going to make a notification. I didn’t ask for her to make a notification. I – I did not know.
The mother then agreed that she must have known at the time that more JIRT investigations as a consequence of disclosures would have been really bad for the children and would have restarted allegations against the father but agreed that without questioning she handed over documents which made alarming disclosures about the children who were in the primary care of the father at the time. The mother also agreed that some of the writing did appear in a notebook that she had in her possession and gave to “Ms TT” but did not recall whether she still had that notebook in her possession. The mother also agreed that she had created the typewritten transcript of the notebook entries as she “was asked to write what it said”. The mother did not recall when she had prepared this transcript.
Events following the 12 June 2020 report
On 25 June 2020 at a time when the mother was representing herself, she filed an affidavit in the proceedings in support of a Notice of Risk filed 25 June 2020. In that affidavit, the mother deposes that on two occasions, being 24 April 2019 and 6 January 2020, the Department has substantiated that the children were at high risk of significant harm while in the care of the father.
The general theme of this affidavit reaffirms the mother’s allegations that the father has caused significant harm to the children and reiterates allegations that the father threatened to kill the mother and maternal family, threatened to kill the children’s pets or stated that he had done this in the past, and has perpetrated physical, emotional and psychological abuse against the children. In that affidavit she raises the son’s allegation that the son’s fractured arm in 2016 resulted from the father throwing him against the bathroom door or into the bathroom sink, that the father locks the children in their rooms and denies the children meals/food and a litany of other forms of abuse. The mother also makes extensive allegations in this affidavit of domestic violence said to have been perpetrated by the father during the marriage and on separation.
In August 2020, an expert was appointed to provide a report on his assessment of the family for the purposes of the proceedings and over two days in October 2020 the parties participated in interviews with the expert. The expert’s report dated 21 January 2021 was released to the parties on 29 January 2021.
Expert evidence
When interviewed by the expert, the mother’s proposal was a return to the shared care arrangement between the parties (albeit on a changed ‘week about’ basis) and she asserted to the expert that shared care between the parents had been a success. Apart from reporting that the previous pattern of care which involved numerous changeovers each week was disruptive (which would be remedied by a ‘week about’ arrangement), the mother denied that there were any other significant issues. The expert records that he questioned the viability of her proposal given the extensive concerns identified in her June 2019 affidavit (which I assume to be a reference to the June 2020 affidavit). The mother said that she considered it really important for the children to have a relationship with both parents and proposed that the current proceedings be dismissed to enable the parties to sort things out together.
In summary, the expert was extremely critical of the mother and maternal extended family who he held directly responsible for repeatedly undermining the father’s capacity to maintain a relationship with the children which was to their detriment. The expert considered the mother’s longstanding focus on the father’s alleged demeanours as pathological and opined that this focus had undermined the children’s relationship with their father and fuelled their hostility and resentment towards him which had a profound impact upon the children’s emotional security. The expert was gravely concerned that the mother dismissed her own conduct in focusing on those issues as irrelevant in the current family law proceedings. He also did not accept the mother’s assertion that all previous behaviour by her should be discounted and that her ill-advised focus on allegations against the father related to her misinterpretation of the legal process as she was self-represented at the time these allegations were made.
The expert considered that the sudden change of the proposal by the mother (and maternal grandparents) from alleging a range of risks posed by the father to seeking shared care was “strategic and unreliable” and that the mother’s assertion that she totally respected the father and his role and would always encourage a close and continuing relationship between he and the children could be viewed as disingenuous.
Further, in his report the expert also reiterated that should the mother’s proposal for shared care be implemented, it is probable that the cycle of alignment with her and alienation from the father will be invigorated which would not be in the children’s best interests. There was no indication to the expert that the mother and maternal extended family had taken responsibility for their actions and the impact thereof on the children and given this, he considered it was likely that such patterns of behaviour would continue if orders were made as sought by them.
The expert’s opinion in relation to the proceedings generally remained unchanged following cross-examination. Of particular relevance to this application is the expert’s steadfast view that the nature of the risk posed by the mother if the children were to spend unsupervised time with her is “that it is likely that the mother will support and amplify any experiences that the children report to [her]”[3]. The expert explained that there is extensive experience of that occurring over a long period of time and although it is difficult to ascertain where many of the allegations against the father arose from, there has been a very long history of the children when with the mother identifying concerns in relation to their experience of the father which the expert explained:
…have then been elaborated, repeated, disclosed to others – resulted in child protection enquires, medical investigations, involvement of numerous services, including counselling services, which have then resulted in investigation upon investigation, which has been disorganising for the children and for the family as a whole.
[3] Transcript 18 February 2022, p.512
The expert further explained in oral evidence that:
…by the reinforcement of rather than containment of their disclosures and statements, even when they have been outrageous and improbable statements – wittingly or unwittingly, it is my view that the mother has reinforced such view, resulting in ongoing disturbance for the children emotionally and behaviourally, which had –which has been to their detriment.
The expert went on to opine that the concern about harm posed by the mother arises not from her simply repeating the allegations to others and not stating that she did not believe that the allegations were true (and in this way reinforcing the children’s beliefs), but also from her recruiting other agencies and parties to propagate the concerns which in turn leads to statutory notifications, interventions by child protection agencies and so on.
Under cross-examination, the expert was concerned about the mother’s evidence surrounding the circumstances of the notification under consideration being that eight months after the orders for supervised time were made she gave an unrelated third party the children’s pictures and handwriting excerpts of the children in respect of the allegation about the father’s use of the electronic collar as a discipline device.
The expert also agreed that if further allegations against the father are made and if he is subjected to further investigations, this will have a devastating impact on the children. The expert explained that this is because the children are currently relying upon their father to provide a secure and stable environment in which their developmental needs are met and that he had been through a lot as a result of the numerous allegations and very unstable family dynamics including the involvement of child protection authorities. The expert explained that the more frustrated, distressed, angry and exhausted the father becomes the less he is able to provide a safe and secure environment in which he can prioritise the children’s developmental needs.
In relation to the particular notification under consideration, it was put to the expert that there is no evidence that the mother was present when two of the children reported that their father was putting a collar around them and “zapping” them. The expert did not agree with the proposition that this indicates that the mother is not directly involved in the complaints made by the children.
THE APPLICATION
At the completion of the evidence on 18 February 2022, the father’s counsel made an oral application pursuant to s 69ZW(6)(b) of the Family Law Act that the identity of the person who made the 12 June 2020 notification be disclosed. None of the parties, including the mother, sought to be heard on that application (though subsequently the ICL did make submissions at the hearing in support of the father’s application). Initially, the father’s counsel proposed that subject to the agreement of the Secretary, who was to be given an opportunity to be heard in order to afford procedural fairness, the application be dealt with in chambers upon receipt of written submissions.
The Secretary also initially agreed that the application could be dealt with in chambers by way of written submissions.
In their respective written submissions, each of the parties relied upon the Full Court decision in Department of Family and Community Services & Jordan & Ors (2012) 47 Fam LR 666 (“Jordan”) and in reliance on Jordan the Secretary submitted that the father’s application made under s 69ZW(6) was invalid and should be dismissed. Rather than dismiss the application on the basis of written submissions, it was listed for hearing.
At the hearing the father was given leave to amend his application and seek orders pursuant to both s 29 of the state Act and in the event it was necessary, s 69ZW of the Family Law Act.
As indicated, the Department opposes the application and seeks that it be dismissed.
LAW & DISCUSSION
Section 29 of the state Act broadly provides for certain protections for people who make reports or provide information about children to the Department. Of relevance, s 29(1)(f) and s 29(2) provide:
(f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with-
(i) the consent of the person who made the report, or
(ii) the leave of a court or other body before which proceedings relating to the report are conducted…
…
(2)A court or other body cannot grant leave under subsection (1)(f)(ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.
Section 29(3) provides that a court which grants leaves under s 29(1)(f)(ii) must state the reasons why leave is granted (s 29(3)(a)) and must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed (s 29(3)(b)).
As observed earlier, the application was originally brought under s 69ZW(6) of the Family Law Act. Section 69ZW creates a regime by which the Court may require a state welfare agency such as the Department to provide the Court documents and information in relation to notifications to the agency of suspected abuse of a child and associated assessments and reports. This section also provides a similar regime to the state Act for the protection of people who make notifications to such agencies. Pursuant to s 69ZW(5) the Court must admit into evidence any document or information provided in response to such an order on which the Court intends to rely.
Section 69ZW(6) is almost identical terms to the state Act. It provides:
(6)…the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless:
(a) the person consents to the disclosure; or
(b) the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice.
Critical importance of the evidence of identity
The father submits that his contention that the identity of the person who made the report of 12 June 2020 is of critical importance in the proceedings must be considered in light of the wide disparity in relief sought by the parties and each of their cases overall. The relief sought by the father is that the children live with him, that he exercise sole parental responsibility for them and that they spend quite limited defined time with their mother. The mother seeks orders that will see the parties equally share parental responsibility for the children and that the children live with each parent in an equal shared care arrangement.
The father's case is that the mother poses an unacceptable risk of psychological harm to the children as she plays a significant role in amplifying and perpetuating the children’s disclosures of harm allegedly perpetrated by the father and in these disclosures being notified to the Department even if she does not make those notifications herself. He contends that that unless the parenting orders are made as he seeks, there will be continued disruption of his relationship with the children such that the children will ultimately be deprived of having a meaningful relationship with him.
In addition to jeopardising the ongoing meaningful relationships between the children and himself, the father also contends in the proceedings that there is a direct risk of psychological harm to the children and to his capacity as a parent arising from the cycle of unwarranted reports to various authorities which results in the children being subjected to investigations by the Department and/or police. This is consistent with the evidence of the expert that, should this pattern of complaints, reports and investigations be reinvigorated, the pattern of emotional and behavioural instability in the children and dependence on the mother and maternal extended family will also re-occur which is detrimental to the children and not in their best interests.
In the circumstances of this case, it is submitted on behalf of the father that the mother’s credit in relation to the role she played in the June 2020 disclosure is critical as it not only reflects upon the credibility of the mother’s evidence generally but goes to the heart of each of the parties’ cases concerning the question of any risk posed by the mother.
As I understand it (though for the reasons explained final submissions have not yet been filed), a finding concerning the mother’s credit in relation to this notification in particular is relevant to the mother’s central contention that there are no difficulties in the co-parenting relationship between herself and the father as it is the only significant claim of alleged misconduct of the father that has been made since the children have lived with him on a full time basis and caused an investigation by the Department.
In the father’s case, a finding as to the mother’s credit in relation to her involvement in this notification also relates to another significant domain of risk. If it is found that the mother has played a role in this notification as the father suspects, this finding is consistent with the opinion of the expert. The expert explained that this significant domain of harm to the children in these proceedings arises from the mother’s lack of insight into the impact of her actions in amplifying and propagating the children’s complaint upon the father’s capacity to maintain a relationship with the children, fuelling the children’s hostility and resentment towards him (which itself has a profound impact upon the children’s emotional security) and of the harms associated with the cycle of alignment with her and alienation from the father.
The mother seeks a return to an arrangement of equal shared care between herself and the father for the children on a “week about” pattern, rather than in accordance with the previous arrangement which involved several changes of care each week. Although this application was made at a stage in the proceedings where final submissions were yet to be made (and the proceedings have now been reopened), it can be gleaned from the mother’s proposed orders, her affidavit and oral evidence, questions asked of the father and expert in cross-examination and her Outline of Case that she considers it in the children’s best interests to return to such an arrangement. It is central to her case that she was unaware or otherwise not involved in the notifications made to the Department, especially since the children were moved to live with the father in October 2019, and in particular the notification under consideration of 12 June 2020. On the basis that the Court accepts this evidence, the mother contends that the equal shared care arrangement “can work”.
Although the mother did not participate in this application for disclosure of the identity of the person who made 12 June 2020 report, her Outline of Case filed at the commencement of final hearing says this in relation to that notification:
There apparently has been one “hiccup” since the orders of October 2019 wherein a report has been made to the Department by a person without authority or knowledge of the mother. The documents produced by the Department indicate that the person had a separate agenda. The mother simply was seeing this person for advice and not interference in her life or the case.
The submissions of the Secretary, to the effect that neither limb of the two part test have been satisfied, rely greatly upon the Full Court decision in Jordan. For the purposes of understanding those submissions the background to the appeal in Jordan must be outlined.
The parenting proceedings which were the subject of the appeal in Jordan related to two young children who had the same mother but two different fathers. Each of the parents, together with two sets of paternal grandparents, were all seeking orders in relation to the subject children. At the time of the final hearing the children were the parental responsibility of the Director General of the Department due to a wide range of risk factors, and in particular, allegations of family violence said to have been perpetrated by both fathers and possibly the mother to which the children were exposed.
In the course of the hearing before the primary judge, a particular notification concerning the risk said to be posed by one of the paternal grandparents assumed great significance. Although that notification had been investigated by the Department and found to have had no substance, when the single expert appointed by the Court was instructed, the substance of the notification in question was described as being “established” even though this was at odds with the Department’s own investigation. The single expert was not informed of the flimsy foundation for the asserted facts in relation to risk posed by one of the paternal grandparents and proceeded to provide his opinion on the basis that those asserted facts could be accepted as already proved and did not require further investigations by him.
In making a recommendation that it would be the best outcome for the children to be placed in appropriate long-term foster placement, the single expert assessed that the paternal grandmother against whom the notification was made was not to be considered as an appropriate kin placement for anything but the short term. On the basis of the expert’s opinion, the “established” notification, as well as ongoing concerns that the father of one of the children was still living with his parents and having unsupervised contact with the children, after the release of the report the children were removed from placement with one set of the paternal grandparents and placed with foster parents where they remained when the final hearing commenced.
In the foregoing circumstances in Jordan, nine days into the hearing the primary judge, of her own motion, made the order under consideration in the appeal pursuant to s 69ZW of the Family Law Act requiring the Director General of the Department to provide to the Court the notification in question “including but not limited to the identity of the notifier on that occasion”.
Ultimately, the appeal was successful as the Full Court considered that the primary judge could not have been satisfied of the required matters in making an order to disclose the identity of the reporter. There is also considerable attention in Jordan given to the question of the legislative power to make such an order and the interrelationship between s 29 of the state Act and s 69ZW of the Family Law Act. The Full Court confirmed that the relevant legislative provision in relation to compelling the disclosure of a reporter’s identity to the Court is s 29 of the state Act, consistent with the decision of Johnson J of Halsen & Nasser Talbet (2010) 44 Fam LR 248.
In relation to the primary judge’s approach to the test for compelling the Department to disclose a reporter’s identity, the Full Court held that there was insufficient basis for the primary judge to have found that the notifier’s identity was of critical importance to the proceedings and that the primary judge did not balance the critical importance to determine the child’s best interests with the public policy considerations that ensure an effective system of child protection notification. In other words, the Full Court was also not satisfied that the primary judge had satisfied herself that failure to admit the evidence would prejudice the proper administration of justice.
In reliance upon Jordan and in particular on the Full Court’s observations at [53], the Secretary submits that in these proceedings the identity of the notifier is not relevant and that it is the findings and investigation which resulted from the notification that is relevant.
In advancing submissions about the critical importance of the identity of the person who made the 12 June 2020 notification, the Secretary’s counsel conceded that the Secretary is not a party to these proceedings (in contrast to Jordan where the Director General of the Department was a party to the proceedings) which means that the Secretary is not aware of the cases run by the respective parties in the proceedings. Despite these circumstances, the Secretary’s counsel submitted in these proceedings that Departmental officers reacted to the June 2020 notification by treating it as a repetition of the May 2019 notification concerning the same allegation and did not substantiate that allegation. Thus, in the proceedings it is argued that the findings and investigations from that notification, being the only matter the Secretary contends is of relevance in the proceedings, is known. Accordingly, it is contended on behalf the Secretary that there is nothing further of relevance to be gleaned from the June 2020 notification.
In the course of the Secretary’s submission it appeared to be assumed that if the identity of the notifier on 12 June 2020 were disclosed, there then will be an application to reopen the proceedings and further cross-examine the mother or even the notifier. In these circumstances, it is argued that disclosing the identity of the notifier will be a matter of “pure credit” in the proceedings because such a disclosure can only go to the credit of the mother.
Although in Jordan, and most likely in most cases, the findings and investigations which resulted from the notification will be the relevant matter rather than the identity of the notifier, I accept the submission of the father that this is not a case similar to most others for the following reasons.
In most cases, the question in relation to a notification is whether the matters alleged give rise to a risk for the children involved. In this case, however, both parties agree that the father does not pose any risk to the children and each seeks orders that will see the children either live primarily with him and he exercise sole parental responsibility for them or that he has equal shared care of them with the mother. The only risk contended for in these proceedings is potentially posed by the mother, and her conduct is not in question in the matters alleged in this notification.
It is central to the mother’s case that she has little knowledge of the complaints and allegations made by the children against the father (except in two cases where she became aware after the complaint had already been made to the Department) and asserts in particular that the notification of 12 June 2020 had nothing to do with her. This particular notification is of great significance as the mother asserts in particular that she had had no role in the children making allegations or the reporting of those allegations to the Department including through other people after October 2019 when the children moved to live with the father.
It is the father’s case that throughout the proceedings the mother has played a role in both the children making allegations against him and the reporting by a wide range of other people such as school teachers, gym coaches, parents, counsellors and members of the mother’s family, while simultaneously claiming in these proceedings that she has no concerns about his care of the children. As explained, the expert opines that an unacceptable risk of harm is posed to the children as a result of the mother’s amplification and propagation of the children’s complaints about the father and the investigations that flow from the cycle of notifications made by the Department. The father also identifies harms that he says are generated by ongoing Departmental involvement in these proceedings generally.
In the circumstances of this case (which I accept may be unusual), I consider the identity of the reporter is critically important as, if it is a person who is connected to the mother (and many such persons have been identified by name in the proceedings), then this adds weight to the father’s contentions about the mother’s conduct. Disclosure of the notifier’s identity is a matter that does relate to the mother’s credit generally but also in particular in relation to the issue of her involvement in ongoing notifications to the Department which is central to the father’s contentions and an assessment of risk in the proceedings.
Although the ICL did not initially wish to be heard in relation to the application when it was first made, the ICL’s counsel did appear at the hearing and made submissions in support of the father’s application. I accept her submission that the disclosure of the identity of the notifier in question relates to both the mother’s credit and to the issue of risk that may be posed by the mother as it may demonstrate that she knowingly made disclosures about the children’s complaint to third parties aware that these third parties would make the notification. Moreover if this is proved to be the case the mother will have been able to ensure that a notification was made while being able to deny having a role in the notification in these proceedings as she knows that the identity of the notifier is protected.
For the foregoing reasons, I am satisfied that in the circumstances of this case, the identity of the notifier is of critical importance in the proceedings.
Prejudice to the proper administration of justice
Submissions made on behalf of the Secretary were directed in particular to the question of whether the failure to admit evidence of the identity of the person who made the 12 June 2020 notification would prejudice the proper administration of justice.
In advancing submissions in relation to the second limb of this test, counsel for the Secretary was particularly concerned about events that may follow the disclosure of the identity of the notifier and in particular the assumption that the proceedings would be reopened and even that the notifier him or herself may be the subject of cross-examination. This concern appeared to be addressed by the father agreeing that if the Court were to grant the application to disclose the identity of the notifier, he would not be opposed to further orders placing limitations or conditions on the use to which that evidence may be put in the proceedings, and making it clear that there was no intention to cross-examine the notifier if his or her identity was disclosed.
It is submitted on behalf of the Secretary that there is no prejudice to the proper administration of justice as the parties have been able to run their cases and present their evidence without the necessity of the evidence of identification which is sought in this application.
It is submitted on behalf of the father that not disclosing the identity of the person who made the report will prejudice the proper administration of justice as the fundamental task in this case is risk assessment and that without the identity of the notifier being known there is a significant likelihood that the Court may be misled about the circumstances in which the June 2020 notification was made and the mother’s role in it and would also leave the Court unable to engage properly with the required risk assessment to make orders in the children’s best interests.
The general scheme of both the state Act and the Family Law Act is to provide protection to notifiers of reports about the welfare of children from their identity being disclosed. These protections promote the goal of ensuring that risks to children are brought to the attention of the Department by anyone with concerns about the welfare of children to enable the Department to carry out an investigation into such matters. However, in this case it is common ground that the nature of the allegation of risk (that the father placed an electric dog training device around the children’s neck in order to punish them by discharging an electric shock and monitor their activity) has at all times been considered by both parties in the proceedings to be bizarre and preposterous and there has never been any evidence to suggest there is any substance to it. The Department itself considered that when made the second time it was simply a repeat of an earlier unsubstantiated allegation. The mother’s evidence under cross- examination in relation to the allegation when it was first raised in mid-2019 was that she was not bothered by it and that she told the person who brought it to her attention at the time to forget about it.
In the unusual circumstances of this case, if the father’s contentions about the mother’s role in ongoing notifications are correct and the identity of the notifier were not disclosed, the Court may not be able to make a finding central to the issues of risk and the mother would be permitted to gain the advantage of the protection provided by the legislation without the central matter being determined. It is to be remembered in this regard that the expert’s evidence is that the propagation of these complaints including through third parties while claiming to have no concerns about the substance of them herself gives rise to the risk posed by the mother. In these circumstances, I am of the view that failure to disclose the identity of notifier will give rise to a prejudice to the proper administration of justice.
Balancing the foregoing public policy considerations with the critical importance of the evidence in these proceedings, I am satisfied as to both limbs of the test under s 29 of the state Act and accordingly make the orders disclosing the notifier’s identity and admitting it in these proceedings as sought.
Section 69ZW(6)
Although the father was given leave to amend his application for disclosure to an application under s 29 of the state Act, in Jordan the Full Court said from [45]:
45.Critical to this appeal, ss 29(2) and (3) set out the requirements and test which must be applied by a court (including a federal court) before a s 29(1)(f)(ii) disclosure question may be asked or an order made for production of notification material which discloses the identity of the notifier to the court (not the parties) before which the proceedings (in relation to the child) are conducted.
46.Section 69ZW of the Act is concerned with evidence relating to child abuse and family violence. In particular (in child related proceedings) the Court's power and the circumstances under which an order may be made to an agency (such as the Director General) is to provide to the Court documents or information in relation to those types of notifications…
(Emphasis in original)
The Full Court later in Jordan said at [52]:
52. Other than the two circumstances referred to in s 69ZW(6), that subsection prohibits the Court from disclosing the identity of a notifier or information that could identify that person. To the extent that s 69ZW deals with disclosure of identifying material it can be seen that the section addresses disclosure of information produced to the Court by the Court (not the agency). Whether and if that material is to be disclosed is decided by reference to ss 69ZW(6) and (7). Excluding where the notifier consents, s 69ZW(6)(b) imposes a strict two part test that must be satisfied before disclosure is ordered. Clearly the severity of the test is designed to ensure that there is no disincentive to notification of child protection concerns.
(Emphasis in original)
In other words, pursuant to s 69ZW(6) of the Family Law Act, I may also be required to consider the question of disclosure of the notifier’s identity a second time as s 29 of the state Act is only concerned with that disclosure to the Court. However, s 69ZW may not arise in these circumstances as that section is directed to disclosure of information provided to the Court under those provisions in the Family Law Act whereas the document under consideration here was produced by the Department pursuant to a subpoena.
In the event that I am required to be satisfied as to the strict two part test in s 69ZW(6)(b), as it is effectively identical to the two part test under s 29 of the state Act, my findings with respect to the state Act and satisfaction as to the matters referred to there equally apply to the s 69ZW(6)(b) test.
For the foregoing reasons, I made the orders as sought by the applicant father.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 28 March 2022