Keywords: Publication of proceedings – Meaning of “the public” in s 121(1) of the Family Law Act – Court allows father to use family consultant’s report under s 11F in domestic violence proceedings – Child’s representations in the report differed from mother’s evidence in those proceedings
In Miller & Murphy [2016] FCCA 974 (2 May 2016), Brown J heard Mr Miller’s application to release the report of a family consultant (“Ms B”) for the purpose of domestic violence proceedings being heard in a separate action before a Magistrates Court.

 

Background

Mr Miller and Ms Murphy were married in 2003, and were the parents of two children, X and Y.  They separated in April 2015 following an incident that occurred in their home.  As a result, proceedings for an intervention order commenced in the Magistrates Court. In those proceedings Ms Murphy, the mother deposed in a statutory declaration that during that incident, her husband “had her by the arm” and “pulled her back into the house” while their child Y was “cowering in the corner”. She also deposed that “there is a Police Incident Report” in relation to Y being assaulted by Mr Miller when he pulled their daughter away from her.

After parenting proceedings were underway, Ms B, the family consultant provided the Court with a family report.  In that report, the child Y had been aware that her father had been arrested after a fight, but her disclosures to Ms B indicated that she had not witnessed the dispute between her parents escalate, and was unable to comment on what had transpired.  These facts differed from the account deposed by Ms Murphy in the intervention order application. The husband then filed his current application to have the report released and made available to defend the intervention order.

 

The Family Report

The report was prepared by Ms B, pursuant to section 11C(1) of the Family Law Act 1975 (“the Act”).  Any admissions made by parties involved with a family consultant are admissible in proceedings under the Act, as long as the parties had been informed.  The order made on 31 August 2015 for the parties to participate in counselling under s11F of the Act, was sufficient His Honour felt, to infer that the parties would have been informed that any admissions made to Ms B were not confidential and would in all likelihood be disclosed to the court.

 

Public Policy Considerations

There were also public policy considerations to ensuring the protection of family consultants engaged in child related proceedings. The interests of the community are best served if parents, engaged in proceedings concerning their children, can trust that child dispute resolution conferences are not disseminated beyond the associated court proceedings.

His Honour also stated that there is the added consideration that children may be reluctant to “unburden themselves to a family consultant” if they sensed that their disclosures could be used in any further proceedings between their parents.

Section 121(1) of the Family Law Act 1975

Section 121(1) of the Act prohibits the publication or dissemination of details of family law proceedings to the public or a section of the public.  In the present case, the Court considered that: “[t]he question arising is, if the report is released … will this represent dissemination to the public”.  The Court considered Re Edelsten; Ex parte Donnelly [(1998) 18 FCR 434] where Morling J held that the definition of “the public” should be read widely and refer to “widespread communication with the aim of reaching a wide audience.”

In this matter Brown J held that if Ms B’s report were released, it would at most be “scrutinised by… defence counsel for Mr Miller; the police prosecutor; and the presiding magistrate. In my view, this cannot be considered to be a wide audience. …”  And there is also the provision under section 121(9)(a) permitting the release of family law documents for proceedings in any other court.

In deciding whether the intervention application against Mr Miller would qualify, Brown J referred to R v Howe [(1978) 4 FamLR 166 which had considered the term “any court”, giving it a wide interpretation “to be entirely general and so wide to include any criminal court and any civil court in Australia”.

His Honour therefore found that: ‘Accordingly, I do not consider that Ms B’s report is captured within the strictures provided by section 121(1)’.
Special Circumstances

Finally, Brown J considered one last issue.  Was the family report  subject to any ‘implied … undertaking’ which would require leave of the court in order to release the parties from any obligations. Were there special circumstances in this case?

His Honour considered two cases where criminal proceedings ensued from family law proceedings in which allegedly false statements had been made.

It was held in Banks & Loffler [[2015] FamCA 380] that special circumstances had been established that justified the release of affidavit material produced by one of the parents in family law proceedings that the other parent wished to rely upon to defend significant criminal proceedings.  In Zarins Y Mylne (No 3) (2013) FamCa 737, Berman J had taken a similar approach.

Counsel for Mr Miller submitted that the report was being requested solely for use in his client’s criminal proceedings, and the Court was not required to make any determination as to its substantive value.  His Honour concurred and acknowledged that he was not permitted to seek information as to how Mr Miller wished to conduct his defence, and that Mr Miller had the right to challenge the intervention order against him.

In conclusion His Honour stated: “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.”

 

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