· 2021-08-13T16:24:26+0000 · 750 posts

Mother Alleges Family Violence Against Father

Janzen & Janzen [2021] FCCA 1815 (5 August 2021)

The Mother alleges family violence against the father who is a NSW Police officer. The Independent Children's Lawyer ("ICL") issued a subpoena to NSW Commissioner of Police ("The Commissioner") seeking records of complaints against the father. The Commissioner resisted the production of the documents pursuant to statutory privilege against admissibility of documents in Police Act NSW.

Facts:

The father is a serving NSW Police officer. The mother asserts that his family violence was of a coercive and controlling nature. The Independent Children’s Lawyer has become aware that the father has potentially engaged in inappropriately violent or intimidating conduct towards minors at work. The ICL then issued a subpoena to NSW Commissioner of Police seeking all records regarding complaints of excessive force, violence, coercion or control, investigations, findings and/or judgments in respect to the father. The Commissioner resists the subpoena and seeks that it be set aside. The ICL and the mother jointly contend that the subpoena requires the Commissioner to produce not just the admissible complaint documents, but also the related inadmissible documents. The Commissioner resists producing any documents in answer to the subpoena. The Commissioner contends that the statutory privilege against admissibility is also a privilege against production of those documents. If the Court concludes that the Commissioner is required to produce so much as one document, the Commissioner intends to press a “public interest privilege”.

Issues:

I. Whether or not the statutory privilege against admissibility of documents in Police Act NSW is also a privilege against production of documents for inspection.

II. Whether or not there is a legitimate forensic purpose for subpoena.

Applicable law:

Family Law Act 1975 (Cth), Part VII - provides that making a parenting order is a discretionary exercise in which the Court must regard the best interests of the children as the paramount consideration.

Judiciary Act 1903 (Cwlth) s 79(1) - provides that the laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Police Act 1990 (NSW) - an Act to establish the NSW Police Force, to provide for the management of the NSW Police Force and for the employment of its members of staff; and for other purposes.

Belrose & Belrose [2020] FCCA 177 - where it was held that the statutory privilege against admissibility is also a privilege against production of those documents.

Burmah Oil Co Ltd v Bank of England [1979] UKHL 4; [1980] AC 1090 - defines a document as “a vital part of the law of discovery, enabling justice to be done where one party knows the facts and the other does not”.

Commonwealth of Australia v Northern Land Council & Anor (1991) 103 ALR 267 - observed that a document “relates to a matter in question between the parties” and is thus discoverable if it is “reasonable to suppose” that the document “contains information which may either directly or indirectly enable the party requiring it either to advance his own case or to damage the case of his adversary”.

Dupont & Chief Commissioner of Police & Anor (2015) 53 Fam LR 378 - considered whether a parent’s violent, intimidating or coercive behaviour in a workplace can be relevant to the likelihood of that parent perpetrating family violence at home.

Grant and Downs [(1976) [1976] HCA 63; 135 CLR 674] - pointed out that the public interest that trials should be conducted in circumstances in which all relevant documents are available to the parties has always given way to the paramount public interest reflected in legal professional privilege.

Relationships Australia v Pasternak & Pasternak and Children’s Representative (1996) FLC 92-699 - relied upon in the case of Belrose in holding that the Police Act did not confer an immunity against production.

Strickland v State of NSW [2016] NSWDC 30 - in this case, the defendant (on behalf of the Commissioner) contended that s 170 of the Police Act extended to a privilege against production.

Trade Practises Commission v Port Adelaide Wool Company Pty Ltd and Sinclair (1995) 132 ALR 645 - provided that the Court shall not order a party to produce a document unless satisfied that the order is “necessary”.

Unitingcare – Unifam Counselling & Mediation and Harkiss & Anor [2011] FamCAFC 159 - relied upon in the case of Belrose along with the case of Pasternak, in holding that the Police Act did not confer an immunity against production. In this case the trial Judge had ordered Unitingcare to produce documents evidencing communications made in the course of family counselling. On appeal, Coleman J overturned that decision.

Analysis:

Adverse findings about a parent’s perpetration of family violence can impact findings regarding the parent’s capacity to provide for the child’s needs or the parent’s attitude to the responsibilities of parenthood. When making a parenting order, the Court should apply a rebuttable statutory presumption that it would be in the children’s best interests for the parents to have equal shared parental responsibility for them. However, the statutory presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence.

The ICL contends that there is no pre-existing privilege in evidence of a complaint concerning a police officer. The Commissioner needs to be able to fully and properly investigate allegations of Police misconduct. This can include assessing the integrity of Police officers. The Police Act did confer an immunity against production.

Conclusion:

The Court concluded that the statutory privilege against admissibility of documents in Police Act NSW is not a privilege against production of documents for inspection. There is a legitimate forensic purpose for subpoena. The Court ordered the objection on behalf of the NSW Commissioner of Police to the ICL’s subpoena dismissed. As to the listing of the proceedings for further argument on the public interest immunity claim and as to any other relevant issues arising out of these reasons for judgment, the Court will still hear from the parties. The proceedings are adjourned to 19 August 2021 at 9.30am for Directions.

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