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Leave to Issue a Subpoena to the Department of Child Safety

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT

BRISBANE

 

Appeal Number: NOA 54 of 2019

File Number: BRC 9223 of 2017

 

Ms Jebbett

Applicant

 

And

 

Mr Corey

Respondent

 

And

 

Independent Children’s Lawyer

 

REASONS FOR JUDGMENT

 

1. By an Application in an Appeal filed on 8 July 2020, Ms Jebbett (“the applicant”) sought leave to issue a subpoena to the Department of Child Safety, Youth and Women (“the Department”) in Queensland for the production of documents to be used by her in an appeal against parenting orders made by a judge of the Family Court of Australia on 29 May 2019. Mr Corey (“the respondent”) and the Independent Children’s Lawyer opposed the application.
2. I dismissed the application on 14 July 2020 and these are my reasons for doing so.
3. The hearing before the primary judge, which lasted for nine days with further written submissions filed by each party, raised difficult and complicated issues.
4. In summary, the outcome was that the parties’ child was to live with the applicant and spend no time with the respondent. The applicant was granted sole parental responsibility for the child but she was required to consult with the respondent in writing as to decisions to be made in the exercise of that responsibility.
5. Relevantly, the applicant appeals against the aspect of the orders requiring her to consult with the respondent in the exercise of sole parental responsibility and the orders that effectively prevent her from home schooling the child, amongst other orders.
6. The applicant’s appeal from the orders made on 29 May 2019 is listed for hearing on 30 July 2020, along with her other appeal against the primary judge’s refusal to stay the parenting orders.
7. The subpoena which the applicant wishes to issue to the Department seeks “a copy of all notification records notified by way of, phone call, fax, email, mail to the [D]epartment … from August 2018 till now” (as per the original). The applicant explained that the purpose of the subpoena was to obtain a copy of the records of a notification made about the child to the Department in late November 2018, which was just before the commencement of the hearing before the primary judge.
8. The applicant explained that the documents are relevant to the appeal because the copy of the documents that she currently holds has the name of the notifier redacted. Thus, the point of the subpoena is to try and identify the notifier. The applicant suspects that the notifier is one of the experts that gave evidence in the proceedings before the primary judge and she submits that if that is the case, then it follows that the expert was biased against her and dishonest and that the expert’s evidence and opinions should not have been accepted.
9. All this is said to be relevant to Ground 1 of the appeal, which is: “[t]he [primary judge] relied heavily on expert evidence which was given without knowledge and experience.”
10. Ground 1 does not raise the issue of bias or dishonesty and the identity of the notifier seems to have less than tangential relevance to the ground of appeal.
11. For obvious public policy reasons, government departments that receive notifications in relation to the safety of children are quite properly reluctant to disclose the identity of the notifiers. If it were otherwise, there might be a reluctance for people to bring matters of concern about children to the attention of the relevant departments. They are, thus, entitled to object to the un-redacted production of documents that could tend to identify notifiers on the ground that such production would offend public policy.
12. Thus, as has been done with the document presently in the possession of the applicant, it is likely that the Department would object to disclosing the identity of the notifier when responding to the subpoena. It is most unlikely that this issue would be resolved before the hearing of the appeal on 30 July 2020.
13. The difficulty with the production of the document sought by the applicant is confirmed by s 186 of the Child Protection Act 1999 (Qld) which provides that the recipient of a notification of harm or risk to a child “must not disclose the identity of the notifier to another person unless the disclosure is made … by way of evidence given in a legal proceeding under subsections (3) and (4)” (s 186(2)(f)). Those subsections provide that the identity of the notifier must not be revealed without leave of the Court (s 186(3)) and the Court must not grant leave unless it is satisfied that “the evidence is of critical importance in the proceeding” (s 186(4)(a)(i)) and “there is compelling reason in the public interest for disclosure” (s 186(4)(a)(ii)).
14. As I have already said, the identity of the notifier is of tangential relevance to one of the grounds of appeal. I am not satisfied that the identity of the notifier is of critical importance in the appeal, although I accept that the applicant sees that differently. I also find that there is no compelling reason in the public interest for disclosure of the identity of the notifier.
15. The applicant submitted that it would be appropriate for the identity of the notifier to be revealed only to the members of the Bench hearing the appeal. That creates obvious difficulties of procedural fairness and is not an appropriate way to proceed.
16. The Department should not be the subject of the applicant’s proposed subpoena because the document sought is most unlikely to be made available to the parties in un-redacted form. Further, given the complexities in the matter, the issue of the subpoena is likely to give rise to applications which would require the appeal to be delayed.
17. Accordingly, the Application in an Appeal filed on 8 July 2020 was dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 July 2020.

 

Associate:

 

Date:  16 July 2020

Posted in: Derek Legal Blog at 18 August 20

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