FEDERAL CIRCUIT COURT OF AUSTRALIA
DOUGLAS & MAULDON	[2015] FCCA 2217	

Catchwords:
FAMILY LAW – Practice and procedure – objection to subpoena.	

Legislation:
Family Law Act 1975, ss.4, 4AB, 10B, 10D, 10E, 10H, 10J, 60CC, 60CC(2A), 60I, 67Z, 67ZBA, 67ZBB, 68LA, 69ZX, 69ZV, 69ZW
Federal Circuit Court Rules 2001, rr.15A.09,15A.13, 15A.14, 
Evidence Act 1995 (NSW), ss.126A
Evidence Act 1995 (Cth), s.55, 69, 81
Children and Young Persons (Care and Protection) Act 1998, ss.27, 29, 248
Family Dispute Resolution Practitioner Regulations 2008, s.25	

Jones & Dunkel (1959) 101 CLR 298
K & H (Children) [2015] EWCA Civ 543
Makita & Sprowles (2001) 52 NSWLR 705
Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611

Other Articles Cited:

Tom Altobelli and Hon. Diana Bryant “Has confidentiality in family dispute resolution reached its use-by date?” 2012

“Triangle Shirtwaist Company Fire”, West's Encyclopedia of American Law, 2nd Edition, Volume 10 (New York: Thomson-Gale, 2004)

Victorian Royal Commission into Domestic Violence 2015	

Applicant:	MS DOUGLAS	

Respondent:	MR MAULDON	

File Number:	PAC 5272 of 2013	

Judgment of:	Judge Harman	

Hearing date:	3 July 2015	

Date of Last Submission:	3 July 2015	

Delivered at:	Parramatta	

Orders Pronounced:	3 July 2015	

Delivered on:	17 August 2015	

REPRESENTATION
Solicitors for the Applicant:	Ms Ng of Metta Legal	

No appearance by the Respondent		

Solicitors for the Independent Children’s Lawyer:	Ms Stanford of Stanfords Solicitors & Conveyancers	

Counsel for The Benevolent Society:	Ms Price	

ORDERS
(1)	Grant leave to the parties and their legal representatives and the Independent Children’s Lawyer to inspect material produced on subpoena by the Benevolent Society subject to the following terms and conditions:
(a)	The material is not to be copied without further Order of the Court;
(b)	The solicitors for the mother and the mother shall have a right of first inspection, such inspection to occur within 14 days of today’s date and the mother and her attorneys shall be entitled to make further redaction from the documents so as to remove any reference to personal details or contact information that would or would have the potential to disclose matters such as the address or former address of the mother and the children, any contact details (telephone, email etc.) the children’s schools (present, past or future) the names of persons with whom the mother or children have been involved (including, but not limited to staff at the Benevolent Society, school teachers, doctors or counsellors);
(c)	Following any further redaction, the material is then to be recopied by the Exhibits section at the Court’s expense and the originals as redacted by both the Benevolent Society and the mother destroyed;
(d)	In the event that the father should seek to inspect the material then he is to first file and serve a Notice of Address for Service and any inspection as occurs is to be supervised by a member of Court staff at all times.
(2)	Leave is granted to the solicitors for the mother and/or Benevolent Society to relist the proceedings following inspection as above and in the event that it is suggested that any further Order is necessary or required.
(3)	Dismiss the objections filed 7 April and 26 May 2015 respectively.
(4)	Reserve reasons to be delivered as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Douglas & Mauldon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT parramatta	
PAC 5272 of 2013
MS DOUGLAS	
Applicant

And

MR MAULDON	
Respondent

REASONS FOR JUDGMENT
1.	These proceedings involve competing claims for parenting relief with respect to three children:
[X] born [omitted] 2004;
[Y] born [omitted] 2007; and
[Z] born [omitted] 2009.
2.	The parties to the proceedings are the children’s parents, being their mother, Ms Douglas, who is the Applicant, and their father, 
Mr Mauldon, who is the Respondent.
3.	The proceedings are listed before the Court today with respect to objections to subpoena only. The substantive proceedings have previously been adjourned (to 20 November 2015) in anticipation of the release of a Family Report, which report is in the process of being prepared.
4.	There are two objections to subpoena. Both objections relate to the same subpoena, being a subpoena issued by the Independent Children’s Lawyer addressed to the Proper Officer, The Benevolent Society. 
5.	Upon those objections being lodged on 7 April and 26 May 2015 respectively, the proceedings were relisted to enable determination of the objections. Notice was forwarded to the parties and each of them as well as the Independent Children’s Lawyer and the Benevolent Society, the primary objector.
Due process
6.	The mother appears today via her legal representative. The children’s best interests are represented by an Independent Children’s Lawyer. The Benevolent Society is represented by Counsel and appears by telephone.
7.	The father does not appear today. That is unsurprising. The father is presently held in immigration detention. The father’s present status is unclear.  
8.	The father was, on 5 December 2007, found guilty and convicted of certain offences committed by him upon children under the age of 16 years. At the time the offences were committed, the children were, in fact, seven and nine years of age respectively.
9.	As a consequence of those convictions certain action has been taken by the Department of Immigration and Border Protection. Before the Court on a prior occasion, 28 August 2014, and marked Exhibits ICL1 and ICL2 respectively, are copies of:
a)	The transcript of proceedings before the District Court [omitted], Queensland; and
b)	Correspondence from the Department of Immigration and Border Protection delivered to the father by hand and whilst the letter itself is undated, the acknowledgement of receipt of it forms the fourth page of the document. The Respondent is suggested to have acknowledged receipt on 5 December 2013.
10.	The above correspondence advises the father that his resident visa has been cancelled. As a consequence, the father was, upon completion of his criminal sentence, taken into immigration detention to await removal. When or if that will occur is unclear.
11.	Certainly, communication has been received by Chambers prior to today wherein the former attorneys for the Respondent had sought to be provided with copies of Orders made by the Court and with one express purpose being to provide those Orders to the Department of Immigration and Border Protection. Whether that was to forestall removal or otherwise is unclear.
12.	Whilst the father does not appear today I am satisfied that the father is aware of the proceedings and, in light of the timeframe for the relisting, has had an abundant opportunity to make Application to appear by telephone or other electronic means. I accept that the father is not in a position to appear in person.
13.	It may be that little, if any, assistance is available to or has been provided to the father since his lawyers withdrew. The Court has no means of ascertaining this. In any event, the father does not appear today, and I am satisfied that the matter can and should proceed in his absence, he having been given over two months notice.
The subpoena
14.	The subpoena the subject of the objection is addressed to the Benevolent Society. The subpoena seeks production of the following documents:  
	…all files and documents held by you, including but not limited to clinical notes, file notes and writings, appointment dates and reports in relation to [both parents and all three children].
15.	It is common ground that the wife and children the subject of these proceedings have been attending upon various services afforded to them by the Benevolent Society, and no doubt with their great thanks.
16.	Fundamental to these proceedings are significant allegations of family violence and abuse. Those allegations are detailed at some length in the Affidavit material filed by the mother. That material filed by the mother includes photographs and other documents, including documents produced electronically, which suggest serious family violence has been perpetrated by the father upon the mother, as well as upon various children, including these children.
17.	The principal basis of the objection as lodged by the Benevolent Society, the recipient of the subpoena, is as follows:
	The documents contain allegations against the Respondent made in confidence to enable child welfare services to be provided. Disclosure of these allegations to the Respondent may have repercussions. Accordingly, the documents should not be copied, nor should they be inspected by the Respondent himself. Inspection should be limited to the Respondent’s legal representative.
18.	The objection raised on behalf of the mother is in the following terms:
	The documents that are likely to be produced by the Benevolent Society are likely to contain allegations the Applicant made against the Respondent in confidence. Disclosure of those allegations to the Respondent or to his legal representative/s, may have serious repercussions on the Applicant and the children who are residing with her. Accordingly, the documents should not be copied nor should they be inspected by the Respondent or his legal representative/s.
19.	Rule 15A.13(2) of the Federal Circuit Court Rules 2001 provides:
	If a person subpoenaed, another party or an interested person has not made an objection under rule 15A.14 by the date required for production, each party and any independent children's lawyer may, after that day: 
	(a) inspect a subpoenaed document; and 
	(b) take copies of a subpoenaed document, other than a child welfare record, criminal record, medical record or police record. 
20.	The above rule is significant to this determination as:
a)	The procedure for administrative access to inspect the documents produced (as provided by rule 15.13A(1) and (3) of the rules would, but for the objections lodged, permit inspection by all parties and the Independent Children’s Lawyer. A request to inspect has already been filed by the Independent Children’s Lawyer;
b)	Upon inspection being permitted copying of the documents would also appear to be permitted as:
i)	The records are counselling rather than medical records;
ii)	The records are clearly not Police or criminal records; and
iii)	The records would not appear to be “child welfare records”. Whilst that term is not defined by the rules the note to the rule provides, “For child welfare records, there may be restrictions on inspection imposed by protocols entered into between the Court and the relevant child welfare department”. This would suggest that the rule is intended to capture child welfare agency records rather than any broader interpretation of the phrase.
21.	The Benevolent Society objects to copying of their records on the basis that the records are sensitive.
22.	I accept that the Court has a power under rule 15A.09 of the rules to set aside a subpoena in whole or in part. However, that power must be exercised by reference to the rules of evidence and having regard to requirements of due process.
23.	Rule 15A.14 of the rules provides the procedure for objection to subpoena both as to inspection and copying. The rule provides:
	(1)A person who objects to producing a document subpoenaed, or another party or an interested person who objects to the inspection or copying of a document subpoenaed by a party to the proceedings, must notify the Registrar and the issuing party, in writing, of the objection and the grounds of the objection before the day stated in the subpoena for production
24.	The process provided by Rule 15A.14 has been followed.
25.	I am conscious that rule 15A.14 permits a right of “first inspection” by a party of their medical records. That has not been sought by the mother or her attorneys. That is not a criticism of them. The records produced would not appear to fall within the class of medical records and thus “first inspection” would not be available as of right.  
26.	The objection raised by the mother’s attorneys is broader than that raised by the Benevolent Society. I propose to deal with each of the objections and the issues that are raised thereby.
Disclosure of allegations
27.	I have some concern that each of the objections is significantly founded upon the proposition that the production of documents would reveal allegations that fall within the definitions of abuse and family violence in sections 4 and 4AB of the Family Law Act 1975 respectively, have been made “in confidence”.
28.	A category of counsellor/counselee privilege is not recognised at law. Whether it should be recognised or not is not a matter for this Court. Appellate jurisprudence has established that such a claim for privilege with the possible exception of claims for privilege under section 126A of the Evidence Act 1995 (NSW), are not recognised.
29.	More fundamentally there is an obligation upon the mother, as the Applicant in these proceedings, to make full disclosure of evidence relevant to issues in dispute. The obligation of full and frank disclosure arises under common law and is also an obligation imposed by statute.  
30.	Sections 67Z and 67ZBA of the Family Law Act 1975 require that a Notice particularising all allegations of family violence or abuse (a Notice of Risk) is to be filed when:
	An interested person in proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused
	or
	alleges that there has been family violence by one of the parties to the proceedings; or there is a risk of family violence by one of the parties to the proceedings
31.	The filing of that Notice is of some particular significance, triggering as it does the obligations imposed upon the Court by section 67ZBB.
32.	The common law, the Federal Circuit Court Rules 2001 and the Family Law Act 1975 all impose obligations upon the mother to adduce the very evidence which she has disclosed to a counsellor, albeit “in confidence”.
33.	Authors such as Altobelli and Bryant opine:
	The orthodox view about confidentiality reflected in practice would suggest that disclosure is more likely in a confidential setting, rather than in a non-confidential one
34.	It is not argued that the confidentiality and inadmissibility provisions of sections 10D and 10E Family Law Act 1975 are enlivened in this case. Whilst the services provided to the wife and children (and possibly the husband) are described as “counselling” the services do not fall within the definition of family counselling in section 10B of the Act such as to enliven the above protections. Similarly, it is not suggested that the records contain evidence of communications during Family Dispute Resolution such as to attract the protection of sections 10H and 10J of the Act. On that basis the information is not excluded as confidential and inadmissible.
35.	The above authors raise important points as regards the need to have information available to the Court including ready access to information held by third parties so as to aid alleged victims in advancing their case and in not having to repeat the same evidence (and thus potentially avoiding distress and consequences as might arise from, for example, inconsistency between reports – see Triangle Shirtwaist Company Fire case).
36.	Whilst I disagree with the authors as regards confidentiality having “reached its use by date” (indeed I am far from convinced that confidentiality, as an essential element of mediation and negotiation generally, has a use by date any more than I am satisfied that due process, as an essential element of judicial process, has a use by date). I concur with the opinion expressed by the authors and others (see for example the inquiry of the Victorian Royal Commission into Domestic Violence 2015) that victims of family violence should be aided in every way possible in the presentation of their evidence without barrier.  
37.	The divide between State and Federal jurisdictions means that victims of family violence are often required to repeat their testimony between different Courts and tribunals. There are provisions which are available to assist victims of violence such as the production of transcripts and reliance upon them (see section 69ZX(3) of the Act). When a statement has previously been given, especially when given as evidence on oath, the tender and adoption of that transcript aids both the Court and the witness/victim in avoiding evidence and distress associated therewith being repeated.
38.	When previous representations are made in a context that is not legislatively excluded, (such as Family Dispute Resolution or Family Counselling records) then the record of such representations may be extremely valuable in:
a)	Producing a prior consistent, contemporaneous statement by the alleged victim which might tend to be corroborative;
b)	Producing evidence of a prior admission by the alleged perpetrator (admissible by reference to section 81 Evidence Act 1995 (Cth));
c)	Placing that prior consistent statement before the Court as evidence; and
d)	Avoiding repetition of the alleged victim’s evidence.
39.	Ironically, in this case, both the mother and the recipient of the subpoena seek to exclude the very material that would, on the bases advanced above, be admissible.
40.	In this case things are suggested to be disclosed by the mother (and possibly the children and the father) to a counselling service, (using that term not within the definition of Part II of the Family Law Act 1975 but in a more broad and general sense).  
41.	Any representation by the children would be admissible as an exception to the hearsay rule by reference to section 69ZV of the Act.
42.	Any allegation of abuse or neglect, whether within the Family Law Act 1975 definition or within the ambit of the Children and Young Persons (Care and Protection) Act 1998, would be the subject of mandatory notification by the member of staff at the Benevolent Society to whom the disclosure was made, whether that disclosure was made by the wife or one of these children or by the father and irrespective of whether the disclosure was suggested to have been made “in confidence” or not. The effect of mandatory reporting obligations is that there is no such thing as “in confidence” or “off the record” reports of abuse or serious risk of harm. If the information is made known to a mandatory reporter then it must be reported.
43.	The mandatory notification requirement arises from section 27 of the Children and Young Persons (Care and Protection) Act 1998, which provides:
	(1)This section applies to:
	(a) a person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children’s services, residential services, or law enforcement, wholly or partly, to children, and
	(2) If:
	(a) a person to whom this section applies has reasonable grounds to suspect that a child is at risk of significant harm, and 
	(b) those grounds arise during the course of or from the person’s work, 
	it is the duty of the person to report, as soon as practicable, to the Director-General the name, or a description, of the child and the grounds for suspecting that the child is at risk of significant harm.
44.	The information held by the Benevolent Society, if it does, in fact, (and I do not for one moment doubt that it would) contain “allegations made against the Respondent”, would comprise allegations that the Benevolent Society would be obliged to notify to the Department of Community Services. Thus, the information could be obtained by this Court by way of a request pursuant to section 248 of the Children and Young Persons (Care and Protection) Act 1998, section 69ZW Order or subpoena issued at the request of either of the parties or the Independent Children’s Lawyer for production of that material by the Department. The Department would be entitled, if not obliged, to redact detail that would reveal the notifier (section 29 of the Act) but would otherwise be compellable to produce material revealing the bases of reports. However, the Department would be compellable as regards production of the substance of the report.
45.	The “best evidence” that would be available would be the record of the Benevolent Society and being a direct record of representations by the wife and/or children. The best evidence is, subject to redaction to ensure protection of the wife and children and the Court’s discharge of its section 67ZBB obligations, the records subpoenaed from the Benevolent Society. The record of the Department is, at best third hand hearsay.
46.	This Court, in dealing with parenting proceedings and especially when allegations of family violence or abuse are raised, requires production of all information readily available that would assist in illuminating the Court’s significant duties under section 67ZBB of the Act, (i.e., the duty to protect persons from family violence). The material that would be sought by the subpoena, on that basis alone, would clearly be relevant (see section 55 of the Evidence Act 1995 (Cth)). The Court’s obligation per section 67ZBB to ensure that appropriate and available evidence is produced would also be relevant to the address of any objection to production and suggesting that discretion should, as far as practicable, be exercised in favour of production. That would not allow or permit interference with legislative confidentiality and inadmissibility.
47.	The wife seeks Orders for sole parental responsibility and for the children to live with her. The wife does not propose that the children spend time or communicate with the father by any means whatsoever. The father resists the mother’s position and seeks to pursue a relationship with these children.  
48.	Family violence is of significance to all that is done by this Court.  Family violence is a term used throughout Part VII of the Family Law Act 1975 and frequently. Family violence becomes relevant before proceedings are even commenced by parties, it being one of the bases, (see section 60I of the Act), by which parties might be assessed as unsuitable to attend Family Dispute Resolution (see regulation 25 of the Family Dispute Resolution Practitioner Regulations 2008) or by which a party might make an Application for exemption from attendance at Family Dispute Resolution and approach the Court directly. That would appear to be what has occurred in these proceedings at the time of their instigation (albeit in a Local Court).
49.	Family violence informs the Court’s approach to the proceedings through, for example:
a)	The objects and principles (which are in similar, though not identical, terms to the primary considerations in section 60CC of the Act) and which require a consideration of the need to protect children from abuse, neglect and family violence;
b)	Section 60CC(2), the primary considerations.
50.	In balancing, if it might be so described, the child’s meaningful relationship with each parent against the need for protection from harm, there is clear statutory mandate to prioritise protection above all else (60CC(2A) of the Act). 
51.	Section 60CC(3)(c), the additional considerations, requires that the Court turn their attention to family violence and family violence Orders. Various other provisions throughout the legislation direct the Court’s attention to family violence.
52.	Importantly section 67ZBB of the Act imposes upon the Court an obligation in the following terms:
	(2) The court must: 
	(a) consider what interim or procedural orders (if any) should be made: 
	(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and 
	(ii) to protect the child or any of the parties to the proceedings; and 
	(b) make such orders of that kind as the court considers appropriate; and 
	(c) deal with the issues raised by the allegation as expeditiously as possible
53.	The obligations imposed by section 67ZBB of the Act can only be discharged on the basis of evidence. The Court has an obligation to “enable appropriate evidence about the allegation to be obtained”. The release of information as sought by this subpoena would further that purpose.
54.	The documents that are sought to be produced are clearly relevant. The allegations contained within the documents are clearly evidence which the wife would be obliged to disclose in any event. The production of material from the Benevolent Society will merely corroborate the wife’s evidence. Further, there would be some difficulty for the wife, by reference to Jones & Dunkel (1959) 101 CLR 298, were she to identify the documents as existing and available (as they clearly are) and were she to not seek to adduce them.
55.	The documents by and of themselves would appear relevant and admissible as business records (section 69 of the Evidence Act 1995 (Cth)) as well as being probative.
56.	Fundamentally, however, the contents of those documents, containing as they do the “allegations the Applicant made against the Respondent in confidence”, is material that the Applicant is obliged to disclose to this Court. On that basis the material should, subject to the safety of the Applicant and the children being protected, be produced and inspected.
Repercussions of disclosure
57.	Both the Benevolent Society and the Applicant assert that there may be “serious repercussions on the Applicant and the children” if the material held by the Benevolent Society is disclosed. On the basis that the Applicant is obliged to advance evidence of that which she has disclosed to the Benevolent Society, I have some difficulty with accepting that position. 
58.	Submissions from Counsel for each of the Benevolent Society and the Applicant have been of great assistance in fleshing out that which is intended to be put to the Court. It would appear that the reality for each of the service and the wife is that the “repercussions” referred to is that which might arise if any information were produced which would disclose the wife’s whereabouts, the children’s school, specific staff of the service or any other information that would assist in identifying, locating or contacting the wife or the children were made available to the husband.
59.	It would appear that what is, in fact, sought is a right of first inspection by the wife and/or the Benevolent Society to allow them to redact information from the documents to ensure that such information is not disclosed. I have no difficulty in adopting the above course. Indeed, I am satisfied that it is entirely consistent with the Court’s obligations pursuant to section 67ZBB of the Act. 
60.	I am satisfied that Orders that facilitated such protection are entirely appropriate. This would include:
a)	A right afforded to the Benevolent Society to redact material before material is produced. The Court is advised that this has already occurred; 
b)	A right of first inspection by the wife and her attorneys and a right to redact information from that produced.
61.	For both the wife and the Benevolent Society to have the opportunity to inspect the material and redact anything considered to disclose contact details and the like is beneficial. Two sets of eyes are far better than one. Whilst there is an obligation upon litigants (and external third parties who hold material and are summoned to produce it pursuant to section 69ZW Orders or subpoena) to produce material, it should not be done in a fashion that does not give full and proper protection to the safety and security of alleged victims. 
62.	There is no prejudice to the husband if the wife’s current address, telephone number, the children’s schools and such details are deleted from the material prior to it being made more generally available for inspection. It is no prejudice to the Independent Children’s Lawyer for such redaction to occur. The Independent Children’s Lawyer is able to obtain that information confidentially from the wife and her attorneys and to go about sensitively obtaining information as may be required and placing it before the Court (as the Independent Children’s Lawyer is entitled to do and, to some extent, has an obligation to do pursuant to section 68LA of the Act), ensuring, first, that any material that would have the effect of disclosing the wife’s whereabouts or contact details or exposing the wife or any of the children to any alleged risk is redacted.
63.	I am satisfied that this right of first inspection and redaction is the best way to address the objection that is raised. It is unfortunate that the right to attend to such redaction is not made expressly clear through the Federal Circuit Court Rules 2001. 
64.	It is entirely appropriate that the Benevolent Society has lodged the objection that they have and I am grateful to them for having done so.  Without such objection, criticism might have been raised that the Benevolent Society had taken it upon themselves to interfere with documents produced by them other than in full and proper compliance with subpoena. Alternatively, material might have been produced which would have had the potential, which I am satisfied the Benevolent Society would never desire, nor wilfully allow to occur, that might prejudice the health or safety of a client. However, such redaction, in broad terms and by each of the producer and the wife, should address the concerns that are raised as regards the disclosure of information to the husband. 
Limiting of inspection
65.	I am urged by the Benevolent Society to not permit inspection of documents by the husband in person and to restrict any access to the legal representatives for the husband. This is problematic as the husband is no longer legally represented, his solicitors having filed a Notice of Ceasing to Act shortly after the last Court event.  
66.	On the wife’s part, I am urged to restrict inspection of documents produced by the Benevolent Society to the wife and the Independent Children’s Lawyer.  
67.	I am asked by both the Benevolent Society and the wife to restrain and preclude the copying or inspection of documents by “the Respondent or his legal representatives”. 
68.	The interests of justice cannot be served by conducting proceedings in camera. Whilst I am satisfied that the allegations raised by the wife (and supported by the Benevolent Society) are serious, they are, at this point in the proceedings, allegations. The Respondent has a right to challenge the evidence which is to be presented by the wife, (although that will raise its own problems should the father remain self-represented and it may be necessary for a course as urged by the English Court of Appeal in K & H (Children) [2015] EWCA Civ 543 to be adopted).  
69.	The Respondent has a right to know the case that he is required to answer by the wife, she being the Applicant in these proceedings and the agitator for restrictive relief which would preclude the Respondent having an allocation of parental responsibility or any communication with these children.
70.	Whilst I am aware of the tensions which exist regarding access to such information by an alleged perpetrator, and extending to cross‑examination of alleged victims by alleged perpetrators (see again the English Court of Appeal decision in K & H (Children)), the interests of due process and the administration and delivery of justice, require that the Respondent, self‑represented and struggling with the particular and peculiar disadvantages that he presently faces as a person held at an immigration detention centre pending removal, have access to the evidence that will be considered by the Court.
71.	I am satisfied that the material should not be copied. Such copying is opposed by the Benevolent Society. They are, after all, the owners of the documents. There is no basis for them to be copied.  
72.	The inspection of material by the Respondent should not be restricted beyond the ability of the Benevolent Society and the wife to redact from that material all and any identifying information. That may have the potential to render significant proportions of the documents redacted. So be it. What must be made known to the Respondent are the specific allegations that are raised with respect to his alleged conduct and that which the wife will rely upon in seeking the relief that she does. However, the interests of due process and justice require that the Respondent be permitted to inspect material which, I have no doubt, will ultimately be tendered to the Court and which the Court will be asked to take into account as part of its decision. 
73.	The parties are in the process of attending Family Report interviews (subject to the logistical difficulties which may be presented by the Respondent’s present placement at an immigration detention centre pending removal being overcome), and, accordingly, the Family Report writer may seek to inspect material produced on subpoena, including that produced by the Benevolent Society. Certainly, that information would be highly relevant and probative to the proceedings and, thus, of great potential assistance to the Family Report writer. If it is to be viewed by the Family Report writer then, it must be made available to the Respondent lest significant issues per Makita & Sprowles (2001) 52 NSWLR 705 and Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 arise.
Conclusion
74.	I am satisfied that the objections that are raised by each of the Benevolent Society and the wife support Orders for:
a)	Redaction of information by the Benevolent Society and the wife to ensure that all information that would reveal the whereabouts of the wife and children or Benevolent Society staff is removed before inspection;
b)	Photocopying of material to be refused;
c)	Subject to the above being attended to, inspection of material by all parties, their legal representatives and the Independent Children’s Lawyer.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:  

Date: 17 August 2015