Family report allowed in domestic violence case
The following is annotated.
FAMILY LAW – Practice and Procedure – applicant husband seeks release of family consultant’s advice to court for use by him in defence of family violence intervention order sought against him by police – advice to court included interviews with parties’ children aged 13 & 11 – youngest child reported to family consultant that she did not see incident of violence complained of by the wife – wife deposed in her statement to police that child did observe the incident in question – husband seeks to use statement of child in the criminal proceedings – is document covered by provisions contained in section 121 of the Family Law Act – is document subject to implied undertaking that it will not be used in proceedings other than the family law proceedings arising between the parties – should the husband be released from such an undertaking – do special circumstances exist – interests of justice.
The legal considerations applicable
- Mr Dillon concedes that the family report in question is subject to an implied undertaking, provided by both parties to the family law proceedings, that the report itself would only be utilised in those family law proceedings and not for any other purpose. Such an undertaking is commonly referred to as a Harman undertaking following the case in which the concept was formulated: Harman v Secretary of State for the Home Department.
- In general terms, the undertaking arises on the rationale that information that is not is not otherwise in the public domain should not be used for a collateral or ulterior process, unrelated to the proceedings for which the information was obtained in the first place.
- In the current matter, the report of Ms B came into existence, as a consequence of an order made by this court, with the consent of each of the parties, that Ms B, counsel the parties and the children concerned, pursuant to the provisions of section 11F of the Family Law Act 1975.
- Part III of the Act deals with the functions of family consultants. I am satisfied that Ms B falls within the definition of Family Consultant, provided by section 11B of the Act. The functions of family consultants are set out in section 11A and include the following:
- Assisting and advising people and the court in family law proceedings;
- Giving evidence, in relation to such proceedings;
- Helping people involved in family law proceedings to resolve disputes; and
- Preparing family reports.
- Pursuant to section 11E the court is authorised to seek the advice of a family consultant, as to the services appropriate to the needs of the persons concerned.
- Pursuant to section 11F the court has the authority to order parties to attend or arrange for a child to attend, an appointment with a family consultant. The court has this power on its own initiative or on the application of a party to the proceedings concerned.
- Pursuant to section 11C(1), evidence of anything said, or any admissions made, by a person involved with a family consultant carrying out his/her responsibilities, as a family consultant, is admissible in proceedings under the Family Law Act, subject to the provision that the persons concerned have been advised to this effect.
- However, admissions, by an adult, in respect of child abuse or disclosure by a child in respect of such matters remain admissible regardless of whether or not the parties concerned have been advised of the waiver of privilege.
- It is implicit in the order of 31 August 2015, to which both the husband and wife consented, that they were aware that relevant matters disclosed by each of them to Ms B were not confidential and were liable to be disclosed to the court by her.
- The essential underpinning logic of the order was that the parties hoped to be able to resolve the issues between them, with Ms B’s assistance, but if they were unable to, Ms B would provide open advice, both to the court and the parties themselves, as to what was an appropriate outcome in the case, reflecting the best interests of the children concerned.
- I do not know if either Y or X were formally advised that their discussions with Ms B were not in confidence. Y was however described by Ms B was described as being “cautious in her responses, consistent with a child of conflicted parents.” In these circumstances, it may be the case, for all I know, that Y has chosen not to align herself, one way or the other, in respect of the controversial incident between them on 15 April 2015.
- The Family Court and this court, when exercising family law jurisdiction, is a specialist court exercising a specialised jurisdiction, particularly as it relates to the well-being of children. As a consequence, through the provisions of theFamily Law Amendment (Shared Parental Responsibility) Act 2006 the legislature has made significant directions as to how courts, such as this one, are to conduct “child related proceedings”. These provisions are contained in Division 12A of Part VII of the Act.
- Pursuant to section 69ZN the court is required to give effect to a number of principles, whilst exercising jurisdiction in proceedings concerning children. These principles are as follows:
- the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings.
- the court is to actively direct, control and manage the conduct of proceedings.
- proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect.
- proceedings are to be conducted in a way they will promote cooperative and child-focused parenting.
- proceedings are to be conducted without undue delay, formality and legalism.
- Pursuant to section 69ZQ, the court is provided with a number of duties in order to enable it to give effect to these principles. It may:
- decide which issues require full hearing and which may be dismissed summarily;
- decide the order in which issues are determined or what steps should be taken to determine issues;
- in deciding whether or not a particular step is taken, consider the cost implications of such a step;
- use appropriate technology;
- use family dispute resolution or family counselling where appropriate;
- deal with as many aspects of the case as possible on a single occasion and if appropriate without the physical attendance of the parties.
- These various principles and duties have been collectively described as being procedures designed to make proceedings in regards to children “less adversarial”.
- In this context, pursuant to section 69ZS the court is authorised to designate a person to be a family consultant in relation to the proceedings. A note to the section reiterates the functions of family consultants, which include assisting and advising the parties to the proceedings, particularly helping them to better understand the effects of things on the child concerned.
- In this particular case, I am satisfied that the reference of the parties, with X and Y, to Ms B was influenced by these less adversarial principles. It was hoped that an early canvasing of the children’s views would assist the parties to resolve the proceedings expeditiously, in a child focussed way. This objective seems to have been achieved in the present case, notwithstanding the obvious difficulties arising between the parties following their difficult separation. This is to their mutual credit.
- In my view, given the principles contained in division 12A, there are public policy considerations relating to the protection of family consultants in child related proceedings. It is in the interests of the community that parents, who are involved in litigation regarding their children have confidence that child dispute resolution conferences, instigated pursuant to section 11F, are not disseminated beyond the court proceedings to which they relate and for purposes other than those arising under the Family Law Act.
- In general terms, it may be the case that children will not feel inclined to unburden themselves to a family consultant, in the context of a child inclusive family dispute resolution conference, if they perceive that what they report to the family consultant, will be utilised in collateral proceedings between their parents. This is likely to be particularly so if the child concerned or a parent has the fear that statements made in such a milieu may be used to attack their credit.
- It was for reasons of this nature that I closely questioned Mr Dillon as to whether or not Y was to be called as a witness in the proceedings. He told me that he thought not, but as he is not conducting either the prosecution or the defence, he could not be certain. This causes me some concern. I am uncertain how, in the absence of Y as a witness, the credibility of Ms Murphy can be attacked.
- Section 121(1) of the Family Law Act proscribes the dissemination, to the public or a section of the public by any means, any account of proceedings arising under the Act, which identify a party to the proceedings or a person who is related to, or associated with, a party to the proceedings.
- Accordingly, if Ms B’s report is released and utilised in the court proceedings concerning Mr Miller , it will necessarily identify both he, Ms Murphy and indeed Y. The question arising is, if the report is released, for the purpose identified by Mr Dillon, will this represent dissemination to the public. In Re Edelsten; ex parte Donnelly Morling J considered that the reference to the public in section 121(1) should be read widely and refer to “widespread communication with the aim of reaching a wide audience.”
- In this particular case, if Ms B’s report is released, it will be scrutinised by potentially defence counsel for Mr Miller ; the police prosecutor; and the presiding magistrate. In my view, this cannot be considered to be a wide audience. Rather, the individuals concerned will be conducting their professional obligations within a curial setting.
- Considerations of this kind engage the provisions of section 121(9)(a) of the Act, which authorises the provision of information to be used by a person in connection with proceedings in another court. The section reads as follows:
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(9) The preceding provisions of this section do not apply to or in relation to:
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(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings;
- In R v Howe the Full Court of the Supreme Court of South Australia, considering the legislative precursor to section 121(9) considered that the expression any court to be entirely general and so wide enough to include any criminal court and any civil court in Australia. Accordingly, I do not consider that Ms B’s report is captured within the strictures provided by section 121(1).
- The remaining issue is whether the report is subject to an implied Harman undertaking and therefore whether the leave of the court is required to release the parties from it. Y was not a party to those proceedings, but given the her particular vulnerability, I am gravely concerned, at possible unforeseen consequences, which may arise relating to her wellbeing, if the report is utilised against her personally, in some way, in the criminal proceedings her parents.
- It has been said, in a number of cases, that special circumstances must be established before leave is granted to release a person from such an undertaking. In Liberty Funding Pty Ltd v Phoenix Capital Limited the Full Court of the Federal Court said as follows;
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“In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”… It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.”
- The Full Court identified the following considerations, depending upon the circumstances of the case concerned, as being relevant to the exercise of the discretion:
- the nature of the document;
- the circumstances under which the document came into existence;
- the attitude of the author of the document and any prejudice the author may sustain;
- whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
- the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
- the circumstances in which the document came in to the hands of the applicant; and
- most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.
- I turn now to consider whether there is good reason to justify the release of the report to Mr Miller ’s defence counsel for use in the criminal proceedings against him. Clearly, there is nothing untoward in how Mr Miller came into the possession of the report. He, in part, commissioned it and its contents were of vital interest to him. More difficult considerations arise when the nature of the document is considered and the purposes to which it is proposed it be put. Is it release necessary for Mr Miller to achieve justice in the proceedings against him.
- The document, which is the subject of this application, is the report of a family consultant compiled for a child related proceeding. The report was commissioned by the parties, in the case concerned, in order to assist them and ultimately the court, to resolve the proceedings between them in a way which was child focussed, particularly in the sense that the compilation of the report would entail both a frank and sensitive canvassing of the views of the children concerned.
- It was for this purpose that the document came into existence, which falls under the rubric of advice to court. It was not anticipated that the document would come into the public domain per se. In my view, it was necessarily a sensitive document, which arose at a difficult and emotional time for all who took part in the process of its creation.
- I do not know what is the attitude of Ms B to the release of the report compiled her, particularly in the light of anything she may or may not have said to Y about it and its uses. In my view, the information in the report is certainly likely to be sensitive to Y. The parties seem to agree on one thing namely that Y loves both her parents and therefore her interests are served by her having a close and loving relationship with each of them.
- It is not likely to be helpful to Y that she has any perception that what she has said to Ms B has prejudiced one or other of her parents or has been used in the criminal proceedings between them. In this context, it is noteworthy that, at an early stage, Ms Murphy took steps to release Y from the protection order in question.
- In Banks & Loffler Dawe J considered that special circumstances existed to justify the release of affidavit material, prepared by one parent in family law proceedings, for use by the other parent in what Her Honour described as “his defence of significant criminal proceedings concerning another child, The mother is likely to be a significant witness in those proceedings.” She said as follows:
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“In those circumstances, I consider that justice requires that the father be able to use the material in the appropriate fashion without the risk of being found to be in breach of the Harman obligation, the Act or rules.” 
- Berman J took a similar approach in Zarins & Mylne (No 3). He said as follows:
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“As already discussed, the purpose for which the documents are to be used are in respect of criminal proceedings which involve the mother as the alleged victim. It is predominantly her affidavit material and the collateral and associated documents for which leave to be released from the implied undertaking is sought. I consider that there exists “special circumstances” which would justify a release from the implied undertaking.”
- Both these cases involved criminal proceedings, which arose after allegedly false statements had been made in family law proceedings. In Zarins the father had been charged with the mother’s rape, undoubtedly a very serious charge.
- In support of the application in Zarins, it was asserted that the mother in question had made a number of falsehoods in earlier family law proceedings, including that she had cancer; had falsified medical certificates; and asserted that the father of one of her children was dead. She had subsequently acknowledged, in further family law proceedings that these statement had been fabricated.
- It seems axiomatic that this affidavit material would be highly germane to the mother’s credit, containing as it did her prior inconsistent statements and self-acknowledged lies. As such, the material’s release was clearly necessary to achieve justice in the criminal proceedings.
- The documents released by Berman J appear to have included social science material. However, I do not know what the exact nature of this material was and what its connection was to the criminal prosecution brought against the father.
- In the present case the use of the applicable material – the disclosures of Y to Ms B – does not appear to me to be so clear cut, particularly when the context in which the document was created is considered, namely the canvassing of X and Y’s views about parenting arrangements, in difficult circumstances for them.
- Mr Dillon submits that once it is asserted that the document sought is to be utilised for use in criminal proceedings, in another jurisdiction, it is not for the court concerned to make its own assessment of the validity of the asserted forensic purpose.
- In any event, it is Mr Dillon’s preference not to disclose that purpose so as to avoid forewarning to the prosecution. I accept that I am not entitled to enquire as to how precisely Mr Miller intends to mount his defence. That is a matter for him and his counsel.
- I also accept that Mr Miller is entitled to contest the intervention order against him with the upmost rigour. If the prosecution against him is successful, it will have implications for his character and good name. As such, he is entitled to test all allegations against him, within the legal avenues available to him.
- In my view, this is the factor which tips a finely balanced case in Mr Miller ’s favour. I have come to the conclusion that it is in the interests of justice that Mr Miller be released from the implied undertaking regarding the use of Ms B’s report because special circumstances have been established.
- It is axiomatic that Mr Miller is released from his implied undertaking only for the purposes of the contested intervention proceedings in which he is the defendant.
- For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.