Wilford and Commissioner of Police, NSW & Anor

[2018] FamCA 1007

FAMILY COURT OF AUSTRALIA

WILFORD & COMMISSIONER OF POLICE, NSW AND ANOR [2018] FamCA 1007

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilford

1^ST RESPONDENT: The Commissioner of Police, NSW Police Force

2^ND RESPONDENT: Ms Paxton

INDEPENDENT CHILDREN’S LAWYER: Ms Connor

FILE NUMBER: SYC 1354 of 2015

DATE DELIVERED: 3 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 6 November 2018

REPRESENTATION

THE APPLICANT: Mr Wilford appeared on his own behalf

SOLICITOR FOR THE 1^ST RESPONDENT: Mr Wallace

SOLICITORS FOR THE 1ST RESPONDENT:	Makinson d'Apice Lawyers
THE 2ND RESPONDENT:	Ms Paxton appeared on her own behalf

INDEPENDENT CHILDREN’S LAWYER: Ms Connor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The objections to the subpoena issued to the Commissioner of Police by the father, Mr Wilford, are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilford & Commissioner of Police, NSW and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1354 of 2015

Mr Wilford

Applicant

And

The Commissioner of Police, NSW Police Force

1^st Respondent

And

Ms Paxton

2^nd Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. Mr Wilford and Ms Paxton are parties to litigation in relation to parenting orders concerning their daughter X (the child), born in 2007, and currently 11 years of age.  The mother has levelled allegations of child sexual abuse against the father and the child has spent no time with him for over four years.

2. In 2014 the father was charged with three counts of sexual intercourse with a child under the age of ten years.  On the application of a police officer, a provisional Apprehended Violence Order ("AVO") was issued against the father.  In December 2014 the father was charged with breach of AVO in relation to the maternal grandmother, Ms B.  He defended this charge successfully in 2015.

3. In 2016 the father was acquitted of all charges in the District Court of New South Wales.  Nonetheless, police officers pursued an AVO against the father.  He successfully defended this application and was awarded costs against the police.

4. At all times, the father has denied strenuously the allegations that he sexually abused the child.  A Local Court Magistrate saw fit to comment upon the actions of police as follows:

   The reticence of the police informant to serve all the prosecution evidence relied upon in the criminal trial did appear to me somewhat unusual, if not inappropriate ... 

   The Magistrate stated further inter alia:

   A reasonable evaluation of the evidence would lead to a very firm conclusion that the prospects of succeeding in this application were doomed to failure.

5. In her report of 24 September 2018 Family Consultant Ms C expressed these opinions:

   49.As outlined in the first Report, the Family Consultant considers it to be quite a possibility in this matter that the initial child protection investigation was somewhat flawed.  Specifically, questions remain as to whether or not plausible explanations for the child's comments were explored, in addition to the sexual abuse explanation.  If this is found to be the case by the Court, the consequences of such for the child and all members of her family are tragic.  This tragedy includes the child's loss of a relationship with her father and paternal family, including her step mother and half sibling, and also the child having been required to endure the trauma of cross examination in a criminal Court, plus assessments for these Court proceedings.  In addition, it would seem that the not guilty verdict has left the child with the emotional struggle, and likely shame and guilt, of feeling that she has not been believed when it has been adults who have not adequately and carefully considered her statements and their context.  In the event that such a scenario is determined as likely by the Court, it is recommended that the Family Consultant and the Independent Children's Lawyer explain such aspects of the Judgment to the child.  ..."

6. The father contended that the mother and her current husband, Mr Paxton, had "a hidden agenda" and "benefited from all the criminal charges and allegations I was defending in this time in 2014".  Effectively, the father alleged that they created a situation in which they could pursue their relationship and relocate to the Central Coast with the child without him being involved in the child's life.

7. On 23 October 2018 the father issued a subpoena to the Commissioner of Police ("the Commissioner") for production of the following documents:

   1.A copy of this subpoena.

   2.Original or clear and legible copies of all sent and received Cellebrite communications between 1 March 2014 and 30 November 2014 between [Ms Paxton], born … 1982 and the following telephone numbers, noting that copies of non-redacted versions of Short Message Service messages are specifically requested.  Between [Ms Paxton's] mobile phone (+…) and:

   (a)      [Mr Paxton] (telephone number +…); and

   (b)      Ms B (telephone number +…); and

   (c)      Mr D (telephone number +…)

   Celebrite report completed by Detective E, Exhibit number …, Item 1, Folder Name – …, File Name – Report.html

   3.Original or clear and legible copies of non-redacted call log associated with [Ms Paxton's] mobile phone (+…) between the dates of 1 March 2014 and 30 November 2014.

   Optus reference number ...

   Agency reference number …

   Service Identifier ...

   4.All file notes and records of interviews and transcripts, in relation to JIRT interviews with [the child], born … 2007."

8. It seems that the Commissioner has produced redacted documents in response to a subpoena issued by the Independent Children's Lawyer ("the ICL").  The written submissions on behalf of the Commissioner set out his position in relation to these documents as follows:

   "17.The Commissioner produced documents to the Family Court pursuant to paragraph 4 of the Schedule to this Subpoena on 18 May 2018, in compliance with a Subpoena issued by the Independent Children's Lawyer.  The Commissioner understands that the issuing party can inspect these documents.  For clarity, the Commissioner does not object to inspection of these documents but maintains an objection to the copying of the audio-visual recordings of the interviews with [the child] on 2 May 2014 and 3 October 2014 when she was aged 6 and 7 years respectively."

9. The Commissioner, the mother and the maternal grandparents all lodged objections to this subpoena.  These objections were argued before me, with the benefit of written submissions, on 6 November 2018 when I reserved my decision.

Consideration

1. The lawyer for the Commissioner submitted that the subpoena "lacks a legitimate forensic purpose".  This contention was encapsulated as follows in the written submissions on behalf of the Commissioner:

   12.The Commissioner submits that the subpoena has no legitimate forensic purpose and is an attempt by the issuing party to obtain access to documents to see whether the contents of those documents may assist their case.

   13.No effort is being made by the issuing party to identify to the Commissioner any forensic purpose for seeking the material pursuant to paragraphs 2 to 4 of the schedule to the subpoena.

2. The submissions on behalf of the Commissioner read further as follows:

   16.The Commissioner submits that the redactions were necessary to maintain the privacy of persons that are not relevant to the proceedings in this court.  It is difficult to see how the production of "non-redacted" documents pursuant to paragraphs 2 and 3 could be anything other than a fishing expedition.

3. The mother and the maternal grandparents also submitted that the subpoena has no legitimate forensic purpose and relied also on privacy considerations in opposition to the subpoena.  Inter alia, the written submissions of the mother read as follows:

   20.There is a large amount of personal information, unquestionably irrelevant, that is captured under Mr Wilford's subpoena.

   21.This is not only my personal information, but personal information of my parents' and my husband on completely unrelated matters.

   22.This information could extend to places we routinely attend, medical information or attendances, financial information, passwords, addresses, identifying or confidential information of others.

   23.Mr Wilford has already been provided by the Police with all the text messages that were sent or received during that period relating to him or the child, or bearing any possible relevance to proceedings.

   24.The third requested item under his subpoena is repeating what has already been subpoenaed and provided twice, and is already held in the Court.

   25.The Court should find that the subpoena is without legitimate forensic purpose (aside from those items which have already been produced under the previous subpoena), irrelevant and oppressive, and order that it be set aside."

4. The father stated inter alia as follows in his written submissions:

   2.Previously the ICL was allowed first access to certain material produced by NSW Police, under the ICL's subpoena.  I have not been granted leave to inspect that material.  The mother has already seen that material.  It is highly questionable, that party to the case be excluded from the evidence that is available in the exhibits room for all to see.  The allegations against me and the reason I have no time with my daughter is because of the 'allegations' made against me by my child [X] and her mother.  The JIRT interviews go to the very heart of this matter and are facts in dispute.  They are 100% relevant and I should be allowed to view the material, otherwise I am highly prejudiced.  I seek an order that leave be granted and I be permitted to view the said material."

5. The father noted that he has seen a document from a police officer in subpoenaed material which suggested that the Commissioner has not complied fully with a subpoena issued by the ICL.  His written submissions stated relevantly as follows:

   The evidence I am seeking to access has previously been subpoenaed by the first appointed ICL, Mr. Norman O'Dowd, and more recently by the current ICL, Anne Connor (with the exclusion of [Mr Paxton]).  I note that neither subpoena was fully complied with, nor were formal objections made by the Police.  During my perusal of evidence at the Family Court, I saw a response from Detective [F] in relation to the subpoena submitted by Mr. O'Dowd where she acknowledges:  "there is material that I possess that is captured under the schedule of the above subpoena that will not be produced...I am happy to revisit this in the future if need be".

6. At a prima facie level it thus appears that a police officer has elected not to produce certain documents in response to a subpoena, for reasons which were unexplained at the hearing on 6 November 2018.  I can envisage no circumstance in which failure to comply with a subpoena for production of documents is a course preferable to lodgement of an objection.

7. I have regard to this material contained in the written submissions of the father, despite the fact that the lawyer for the Commissioner contended that "no weight should be given to the material on the last page" of his submissions.  The lawyer for the Commissioner made no submission to the effect that the father put an incorrect proposition to the Court.

8. The father's written submissions spelled out clearly that he strongly denies all allegations of sexual abuse, which he believes to be "a direct result of [Ms Paxton] manipulating the child".  The Family Consultant entertained a scenario in which the court finds that the father does not pose an unacceptable risk of sexual abuse to the child as one outcome of the proceedings.  It seems abundantly clear to me that the father's "legitimate forensic purpose" is to establish that the child the child was manipulated and/or coached by the mother, with the assistance and/or encouragement of her husband and the maternal grandparents, to make allegations of sexual abuse.

9. The Family Consultant opined as follows in relation to a scenario of a finding of no unacceptable risk of sexual abuse:

   46.On the other hand, in the event that the Court determines that [Mr Wilford] does not pose an unacceptable risk of sexual abuse to the child and no attempts are made to reintroduce the child to her father, there is the very real risk that the child will grow up with the belief that she has been the victim of child sexual assault when she has not been.  For the child, such a false narrative will be a tragedy, as she will likely bring such a narrative to her own future adult relationships, including to her partner relationship and also as a parent herself."

10. The ongoing exclusion of the father from the life of the child, and the potential impact on her current future welfare are squarely at issue in these proceedings. The best interests of a child must be regarded as the paramount consideration when the court determines whether to make a particular parenting order: Section 60CA Family Law Act 1975.  I am acutely conscious of the great difficulties of a potential re-introduction of the child to the father which were identified by the Family Consultant.  I am also conscious of the privacy considerations which were relied upon in the objections to the subpoena.

11. In the overall circumstances of these proceedings, I conclude that the subpoena should not be set aside and that the Commissioner should produce the specified documents.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 3 December 2018.

Associate: 

Date:  3 December 2018