Supreme Court New South Wales Medium Neutral Citation: An Adoptive Father v Minister for Family and Community Services [2019] NSWSC 878 Hearing dates: 2 July 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Equity Before: Slattery J Decision: The plaintiff's access to the materials sought on his notice to produce is denied. Catchwords: CIVIL PROCEDURE – Subpoenas – application to set aside – access to documents sought under notice to produce – two young persons were removed from the care of their father, the plaintiff, who had adopted them in an overseas country – the removal from the plaintiff took place under authority conferred by the Children and Young Persons (Care and Protection) Act 1998 and left the children under the care of the defendants, the Minster and the Department of Family and Community Services – grounds for removal were the plaintiff's violence and alleged sexual abuse towards them – plaintiff admits a non-sexual assault on one child and is indicted for trial for alleged sexual assault on one child – Presidential Children's Court proceedings confirmed the removal of the two children and ordered they be kept under the care and control of the Minister until the age of eighteen – the plaintiff brings an appeal from the President of the Children's Court to this Court – plaintiff issues notice to produce – plaintiff abandons any contention on the appeal to this Court that the children should be restored to his care – plaintiff confines his appeal to submissions that an early foster carer of the children ("the first foster carer") was unsuitable for the future care of the children and the children's placement planning is inadequate – the first foster carer was since replaced by the defendants with new carers ("the second foster carers") – the plaintiff does not challenge the continuation of the children's care by the second foster carer – on the appeal the plaintiff issues a notice to produce for documents concerning the children's care by the first foster carer – the defendants submit that the documents sought under the notice to produce are no longer relevant to the issues for trial – whether the plaintiff should be given access to the documents produced in accordance with the notice to produce. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998, ss 7(a), 29(f), 78, 91 Children's Court Regulation 2014, r 5(1) Cases Cited: Alister v The Queen (1984) 154 CLR 404 ICAP Pty Ltd v Moebes [2009] NSWSC 306 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 R v Saleam (1989) 16 NSWLR 14 Rinehart v Rinehart [2018] NSWSC 1102 Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306 White v Tulloch (1995) 127 FLR 105 Category: Principal judgment Parties: Plaintiff: [not published] First Defendant: Minister for Family and Community Services Second Defendant: The Secretary of NSW Department of Family and Community Services Representation: Counsel: Plaintiff: Self represented First and Second Defendants: Sian McGee Independent Children's Lawyer: Nicholas Confos Solicitors: Plaintiff: Self represented First and Second Defendants: Karen Smith, Crown Solicitors Office File Number(s): 2019/2417 Judgment 1. The plaintiff adopted two children in a foreign country almost 5 years ago and brought them to Australia. He already had two other children in Australia. But he separated from his wife and was bringing up the four children together until recently. 2. A little under two years ago, as a result of the physical assault on one of the adopted children which the plaintiff admits, the first defendant, the Minister through the second defendant, the Department of Family and Community Services ("FACS"), removed the children from his care early in 2018. 3. The plaintiff appealed from this decision to the Children's Court, seeking restoration of the adopted children to his care. In November last year the President of the Children's Court dismissed his appeal ("the November decision"). By an Amended Summons, filed on 4 February 2019, the plaintiff now seeks to appeal to this Court under Children and Young Persons (Care and Protection) Act 1998 ("the Care Act") from the President's decision. 4. In the course of preparation for the conduct of the appeal, which is listed before me in September, the plaintiff issued a notice to produce to the defendants seeking a range of materials related to the conduct of a person who had foster caring responsibilities over the two children immediately after they were removed from the plaintiff's care ("the first foster carer"). The plaintiff presses for production of these documents saying that they are relevant to the conduct of his appeal. 5. But the Minister and the Department resist production. They do so on two grounds: on the bases that, (1) the documents sought cannot be relevant to the restricted issues that are now to be tried of the appeal, and (2) the production of the documents may be resisted, (a) on public interest immunity grounds as potentially prejudicing police investigations, (b) on the basis that the plaintiff would use them for a collateral purpose, and (c) on the basis of the statutory privilege afforded to risk of harm reports under Care Act, s 29(f). The Independent Legal Representative of the children supports the Department's submissions. 6. The Court is able to determine this application on the basis of the first issue. It does not have to decide any aspects of the second issues. 7. First though, the recent procedural history of this matter should be shortly stated. In the November decision, the President of the Children's Court was satisfied under Care Act, s 7(a) that the permanency planning for the children required under Care Act, s 78A had been appropriately and adequately addressed. The President proceeded to make the final order sought allocating parental responsibility for the children to the Minister until they attain 18 years of age. 8. The relief claimed in the plaintiff's amended summons in this Court includes claims that permanency planning has not been adequately and appropriately addressed; and a new Care Plan (Care Act, s 78) and Permanency Plan (Care Act, s 78A) be filed that appropriately and adequately addresses permanency planning for the children. 9. In February this year, the plaintiff filed an affidavit in support of his appeal. Then on 20 March, the Court issued on behalf of the plaintiff a notice to produce for inspection directed to the Secretary of FACS seeking the production of documents. Some of the documents sought included documents that post-dated the November decision, but most preceded it. 10. It is not necessary to reproduce the notice to produce in full in these reasons. But in summary, it asks for a wide range of information capable of covering: communications between the first carer and FACS, the first carer and police, the first carer and the children's schools; FACS or external assessments of the first carer; risk of harm reports in respect of the children; communications between FACS and police; interviews with the children; statements of witnesses to incidents involving the children; statements by the children to FACS officers or police; and, information given to the police in respect of police investigations into the alleged conduct of the plaintiff. 11. In April and May the defendants filed affidavits of the caseworker with the day to day responsibility for the casework of the two children ("the caseworker"). 12. On 17 May 2019, the defendants filed a notice of motion seeking orders that the plaintiff's notice to produce be set aside on the ground it demonstrates no legitimate forensic purpose. 13. On 31 May 2019, the plaintiff filed an affidavit in relation to the defendants' motion. This affidavit covers material potentially relevant to the hearing of the plaintiff's appeal. The defendants read in support of their motion an open affidavit of Gelina Talbot, an Assistant Commissioner of the NSW Police Force, and a closed affidavit of Assistant Commissioner Talbot, dealing with the particulars of a public interest immunity claim against production by the defendants under the notice to produce. 14. The plaintiff appeared for himself. Ms S. McGee of counsel, instructed by Karen Smith of Crown Solicitors Office, appeared for the defendants. Mr N Confos appeared for the independent children's lawyer. (1) Are the Documents Relevant to the Issues on Appeal? 1. The defendants submit that the documents sought are not relevant to the issues on the appeal. The plaintiff says they are. Determination of their possible relevance requires analysis of the background facts and some of the issues on the appeal. 2. In January 2018, the second defendant, FACS, received a significant risk of harm report that the plaintiff had physically abused the younger of the two children. The children were removed from the plaintiff's care the same day and placed with the first carer. She is identified by name in the notice to produce. 3. In February 2018, FACS received a further risk of significant harm report that the plaintiff had allegedly perpetrated acts of sexual harm towards the children. The plaintiff's contact with the children was suspended from that date. The plaintiff has always vigorously denied that he has been involved in any sexual misconduct towards either of the children. 4. In March 2018, the plaintiff was charged with assault occasioning actual bodily harm to the younger child. In April 2018, the plaintiff consented to an apprehended domestic violence order preventing contact with the children by any means whatsoever for a period of 5 years. On 11 April 2018, the plaintiff pleaded guilty to a charge of assault occasioning actual bodily harm against the younger child, for which he was sentenced to a term of 18 months imprisonment. This was subsequently reduced on appeal to an intensive corrections order with community service. 5. In November 2018 the plaintiff conceded that there was no realistic possibility of restoration of the children to him. Further in November 2018, the plaintiff was arrested and charged with two counts of sexual intercourse with a child under the age of 10 and two counts of indecent assault of a person under the age of 16, in respect of the older child. These criminal proceedings are listed for trial later this year. 6. The plaintiff accepted by the time of the November decision that, by reason of the combination of the AVO and the criminal trial, he could not be in contact with either of the children for some years. Thus, the only issue remaining before the President as to the children's future was whether or not the children would stay with the then current carer (who was still the first carer), or they would be placed with an alternative carer. At the time of the decision, FACS supported the first carer as the appropriate person to continue to have the long term care of the children. 7. In his November decision, the President found that there was no realistic possibility of restoration of the children to the plaintiff whilst the criminal proceedings against him persisted. The President also found that: the plaintiff's allegations of the unsuitability of the first carer were unsustainable; and, the permanency planning for the children had been appropriately and adequately addressed. 8. Much of the plaintiff's 26 February 2019 primary affidavit, filed in support of his appeal, sets out material disputing: that the children were in need of care and protection at the time they were removed from his care; or that he committed any offences of sexual assault and indecent assault against the older child. But the affidavit also frankly explains some of the difficulties in parenting the children, due to traumas and abuse that they had suffered before he adopted them. 9. The plaintiff's 31 May 2019 affidavit, filed in relation to the notice to produce, states his belief that, motivated by personal advantage, the first carer coached the older child to disclose false allegations of offending conduct against him, which resulted in him being charged. With it is Professor D.T. Kenny's report, which highlights a number of weaknesses in the ways that the children were interviewed and ambiguities in their answers. The police will maintain that the disclosures are reliable and accurate. 10. At the President's hearing in November 2018, the plaintiff objected to a long term placement of the children with the first carer. But by then, the plaintiff had accepted that there was no realistic prospect of restoration of the children to his care. Although his recent evidence suggests he was forced to adopt this position only because of the criminal charges against him and that he does not accept it. But he did not indicate in submissions that he was seeking restoration of the children to his care. 11. But the children's care arrangements have changed since November last year. The affidavits of the case worker show the first carer is no longer caring for the children. Following the November decision, FACS assessed the first carer as suitable for giving short-term care but not long-term care for the children. The plaintiff claims some credit for this change, as being the result of his agitation about the character and conduct of the first carer. But whether or not that is correct is not something that is being examined on this appeal. 12. In early 2019, FACS undertook assessments for an alternative female long-term carer. FACS made a matching assessment in mid-April 2019. As a result, the children were moved from the first carer to another carer ("the second carer"), on the basis that she was proposed to be their long-term carer. The children remain with this long term carer. The defendants were prepared to undertake to give notice if that position were to change. 13. The matter is before this Court in September for hearing. The important conclusion that can be drawn from what the Court has been told is that that hearing will be conducted on the basis that the defendants will not contend that the children should ever again be placed in the care of first carer and that there is no prospect that the children will be so placed. 14. The applicable legal principles in relation to setting aside or access documents on subpoena may be shortly stated. The issuing party of a subpoena, or a notice to produce, must be able to demonstrate the existence of a legitimate forensic purpose in the proceeding in question for the production of, and access to, the documents. Ordinarily it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis, beyond speculation, that it is likely that the documentation will so assist: ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [30]), approved by the New South Wales Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307. Deciding whether a legitimate forensic purpose exists "requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist": Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306; (1989) 88 ALR 90. 15. The Full Court of the Family Court said in White v Tulloch (1995) 127 FLR 105; (1995) 19 Fam LR 696, that the documents sought to be produced must have "a sufficient apparent connection [to the issues in the case] to justify their production or inspection": see also Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, per Brereton J (as his Honour then was). In Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306; (1989) 88 ALR 90, Beaumont J considered that a compulsory process has a legitimate forensic purpose if the documents sought to be produced "could possibly throw light on the issues in the main case". 16. In respect of the production and access to documents in criminal trials, the High Court said in Alister v The Queen (1984) 154 CLR 404, at p 414; (1984) 51 ALR 480; [1984] HCA 85, and R v Saleam (1989) 16 NSWLR 14, at 18; (1989) 39 A Crim R 406, that a document has a legitimate forensic purpose and it "may be enough that it appears 'on the cards' the documents sought will materially assist the defence". 17. All the formulations of the test embody the idea that, "what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings": Rinehart v Rinehart [2018] NSWSC 1102, (at [47]), per Ward CJ in Eq. 18. Where a subpoena or a notice to produce has not been issued for a legitimate forensic purpose, the production of documents pursuant to it, or the access to those documents (depending on the stage of production that has been reached), can be prevented by the Court. 19. The Court accepts the defendants' general analysis of the issues and accepts their contentions that, measured against those issues, the notice to produce lacks legitimate forensic purpose. Their analysis is set out here first, then the Court deals with the plaintiff's submissions in reply. 20. The documents sought on the plaintiff's notice to produce do not have obvious relevance to the plaintiff's case on appeal. His case on this appeal (being a new hearing allowing fresh evidence - see Care Act, s 91 and Children's Court Regulation 2014, r 5(1)) appears, from the evidence filed in support, to be one that the President: erred in rejecting his contentions that the first carer was unsuitable as a long-term carer; and, erred in determining that permanency planning for the children had been appropriately and adequately undertaken. 21. The plaintiff's contention that the first carer was unsuitable as a long-term carer cannot be an issue on the appeal any longer. The first carer no longer cares for the children, who have been placed with a different long-term carer. FACS submits it will not propound the first carer as a long term carer. Future permanency planning may not necessarily even involve close consideration of the "exact placement in the long term" with the second carer: see Care Act, s 78(2A). 22. This limits the range of issues the plaintiff could now maintain in his case on appeal. He may perhaps argue that the current permanency planning for the children is inadequate or inappropriate. But that can foreseeably only involve looking at the current care planning for the children and would not involve any criticism of the conduct of the first carer. 23. In those circumstances, the Court concludes there is no identifiable legitimate forensic purpose to the contents of the notice to produce, nearly all of which concern the first carer. The documents sought do not bear upon the remaining issues on this appeal. 24. The plaintiff advances various arguments against this conclusion, but in my view they are not persuasive. They are analysed below. 25. First, the plaintiff argues that the first carer was merely "not recommended" for long-term care of the children but that does not mean that FACS is obliged to follow or will follow these recommendations. But this submission does not take into account the Court's control of these proceedings and that the defendants will themselves have to comply with any care plan approved by the Court for the children. 26. Secondly, the plaintiff argues that the fact the children have had their placement changed to another approved long term carer does not mean that this placement may not break down in the future. If that happens, the plaintiff submits that there will be nothing stopping FACS from placing the children long term elsewhere, including with the first carer. He submits they could even be placed with the first carer in the short-term, as she has been recommended for that more limited purpose. But the defendants submit this is not in prospect. And the children's transfer to the second carer is the strongest evidence of the correctness of this submission. 27. Thirdly, the plaintiff submits it is of significant concern that FACS will continue to use the children and the first carer as a tool to cover up its negligence and traumatise the children by allowing the first carer to deliberately implant false memories in them. The plaintiff proposes to adduce evidence from Professor Kenny, among other things analysing certain police interviews with the children, to suggest that some of their memories have been implanted. 28. This contention is likely to be part of the contest at the plaintiff's forthcoming criminal trial. But it has no apparent relevance to what the Court has to decide on the appeal that the plaintiff brings in this Court; which is permanently planning and dealing with the children's needs, welfare and well-being and a care plan, not the care of the first carer: Care Act, ss 78 and 78A. 29. Fourthly, the plaintiff submits that FACS has been slow to respond to the plaintiff's allegations about the first carer, and despite having reached the position that the first carer is not suitable for long-term care, FACS is now trying to save face by denying access to the documents sought. He says that this face-saving involves FACS concealing that he was right all along about the first carer. He says that all of this would show that FACS does not, even now, act in the best interests of the children. 30. But the answer to this is that even if the plaintiff was right about the first carer, (and his contentions about her were not necessarily the reason she was found to be unsuitable as a long-term carer) in this appeal the Court will be looking at current care plans, and, in doing so, the Court will be scrutinising FACS's regard for the best interests of the children on the basis of current evidence as to their circumstances. The fact that FACS may have once advanced the first carer as appropriate for the longer term will be displaced on appeal by the issue of examining the current care plan. The appeal is not in the nature of the Royal Commission into FACS. If the plaintiff's argument were to be accepted, one could equally advance the untenable proposition that on the appeal, the Court should undertake a general enquiry into all other care plans and care arrangements that FACS had abandoned. 31. Fifthly, the plaintiff argues that FACS has adopted a minimalist approach in terms of the provision of information to him declining to provide him with any information as to the progress individually and generally of each of the children, save for material that has been filed either in or as an annexures to affidavits. The plaintiff says he believes that this withholding of information was because of the AVO. 32. But this is not an argument for the provision of the specific information being sought here, contrasted with information relevant to the current care plan supported by the second carer. Notwithstanding the AVO, sufficient information can be provided in the course of these proceedings to the plaintiff (protecting the identity of the second carer and the whereabouts of the children) to allow the proceedings to be fairly conducted. How much more information the plaintiff gets in any form can be the subject of submissions on the appeal. 33. Sixthly, the plaintiff says that in 2018 he already had some information about the identity of the first carer and did not make inappropriate contact with her or the children. And he says that he has been cooperative with FACS. Whether or not this is right, it is not an argument for access to this information, as it is not relevant to the issues on the appeal. Nor are the plaintiff's contentions of past non-compliance by FACS with subpoenas relevant to the issues on the appeal. 34. Seventhly, the plaintiff submits that the nature of the material sought on the notice to produce is directly related to the nature of the appeal, specifically his objections to the adequacy of the current permanency planning, based on the history of placing them with the first carer. This contention has already been dealt with above. 35. Eighthly, the plaintiff argues he has already inspected the majority of the material. He says it was presented to Professor Kenny for the assessment. But the relevance to the issues in the appeal of Professor Kenny's evidence, relating as it does to the period the children were with the first carer, is not obvious. But the Court will listen at the hearing of the appeal to the plaintiff's submissions about how Professor Kenny's material can be deployed to advance his case. 36. Finally, the plaintiff seeks in submissions to have access to the material sought by the notice to produce not just up to the date of the notice to produce itself but up to the date of the Court's judgment on this application. To what current material the plaintiff might have access should await FACS filing its evidence on the appeal relating to the current care arrangements for the children. It may be that the plaintiff is entitled to access some material relating to the period after the first carer ceased to be the children's carer. This can be dealt with at or just before the appeal. 37. Consideration of this first issue is sufficient to dispose of the defendants' motion of 20 March 2019 in the defendants' favour. The Court will consider the other group of issues briefly. (2) Prejudice to the Criminal Proceedings Against the Plaintiff? 1. The plaintiff has been indicted for the alleged sexual assault of one of the children. He denies the charges and has pleaded not guilty. The trial is set for later this year, after the Care Act appeal is to be heard before me. The defendants filed evidence in support of an application on public interest immunity grounds, seeking nondisclosure of some of the material to be produced in accordance with the notice to produce, on the basis that its production would be likely to prejudice police investigations. 2. The defendants also say that the plaintiff would be likely to use the documents for a collateral purpose, namely to assist his defence in the criminal proceedings and that the documents need not be produced on the basis of the statutory privilege afforded to risk of harm reports under Care Act, s 29(f). 3. It is neither necessary, nor in the interests of justice, for these issues to be determined at this time. It is not necessary, because the Court has been able to dispose of this application on the basis of the first issue the defendants have raised. The documents sought are not relevant to the issues to be determined on the appeal. That is a sufficient answer itself to the plaintiff's present application. 4. Nor is it in the interests of justice for second group of issues to be determined now. The defendants contended that the documents sought on the notice to produce may be potentially relevant to, and usable in, the plaintiff's criminal trial. This was the foundation of the public interest immunity claim and the collateral purpose and statutory privilege contentions, by which the defendants sought to prevent the plaintiff's access to the documents. The plaintiff denies that he is seeking to obtain the documents for use in his criminal trial. 5. But the question of whether the documents are being sought for a collateral purpose related to his forthcoming criminal trial can be put to one side. If the plaintiff were to seek the same documents in the criminal trial, which he is free to do, the public interest immunity claim can be decided then as an incidental matter in those proceedings. The judge determining the plaintiff's criminal trial will have all the evidence in that trial available and will be well placed to determine the public interest immunity claim than. Conclusion and Orders 1. For these reasons, the Court will not require the production of or allow the plaintiff access to the documents he has sought from the defendants by notice to produce. I see no reason why costs should not follow the event, unless the defendants do not press for an order for costs. Whether they do or not can be raised and the issue then decided at the hearing in September. 2. The Court orders: 1. Set aside the plaintiff's notice to produce documents dated 20 March 2019. 2. List the question of the disposition of costs of this application together with the hearing of these proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2019