O'Sullivan Davies Lawyers

Introduction

The unique role played by an Independent Children’s Lawyer (“ICL”) (particularly when both parents are self-represented), and the ongoing developments in information sharing protocols between agencies, appear to have contributed to some confusion as to the obligations on ICLs to keep confidential information which they obtain in that role.

That confusion in turn has been compounded for some people by an apparent misunderstanding of the provisions of s121 of the Family Law Act 1975 (Cth) (“FLA”).

As an overview, there are a few fundamental propositions which need to be borne in mind:

  1. The rules of confidentiality and professional responsibility are no different for an ICL than they are for any other lawyer;
  2. The rules of confidentiality which apply in all other civil courts apply equally in the Family and Federal Circuit Courts (with the additional overlay of s121);
  3. The “Harman obligation” applies in relation to documents and information not in evidence and the production of which is compelled by court process;
  4. Section 121 applies in relation to all information in proceedings under the FLA; and
  5. The rules of confidentiality are no different in parenting cases than in any other case. While there can be more likelihood of a public policy exemption1 being relevant in a parenting case, nevertheless the rules which apply are the same.

When those basic principles are remembered, the application to ICLs of the rules outlined below is easier to discern.

The role of the Independent Children’s Lawyer

The ICL is the best interests advocate for the child2, while not being the legal representative or advocate for the child, and not acting upon the instructions of the child. The role is commonly compared to that of counsel assisting a court or royal commission3, and the emphasis is (as the name suggests) on the ICL remaining independent, objective and focused upon promoting the child’s best interests in all dealings throughout the proceedings.

The ICL acquires all the privileges and obligations of a representative for a party4. Significantly, that includes the duty to not disclose information that the ICL has obtained in the course of undertaking the role.

Having said that, the ICL’s role is largely welfare based, and the role has evolved in response to greater awareness of the importance of the voice of the child being heard. The evidencegathering role of an ICL, and the liaison that entails with various agencies, can often bring the confidentiality issue to the forefront.

A difficulty which often arises for an ICL in the evidence-gathering role, particularly when both parents are self-represented, and in an atmosphere where the judicial officers of an under-resourced court understandably seek the assistance of the ICL, can be the blurring of boundaries between the ICL’s role as an observer, gatherer of facts and presenter of those facts to the court, and the drawing of conclusions and opinions by the ICL based on that information and observation.

The ICL is not the decision-maker in a case, any more than the single expert witness is. The fact that busy Judges look to ICL’s for recommendations and opinions, and that it can be appropriate for the ICL to make submissions as to what orders should be made, does not alter that fundamental principle.

A misunderstanding of that, when coupled with an entirely proper concern to protect the welfare of the child, can on some occasions cause the best intentioned ICL to mistake his or her confidentiality obligations.

The bottom line, however, is that in terms of those obligations, an ICL is in no different position to any other lawyer. In short, an ICL may only disclose information where the law permits the disclosure.

An open Court

It is worth remembering that proceedings under the Act are held in open court (s97 FLA).

The common law principles are therefore worthy of at least brief consideration before discussing the Harman obligation and s121.

As the High Court has noted:5

“It is the ordinary rule of the Supreme Court, as of other courts of the nation, that their proceedings shall be conducted publicly and in open view. … The fact that courts of law are held openly and not in secret is an essential aspect of their character.”

These principles must allow certain exceptions where the requirements of justice so dictate.6 Historically, those exceptions have often included cases where the court is responsible for the welfare of a child or a person who is mentally ill.7

Similarly, at common law a distinction is recognised between the considerations relevant to keeping courts open to the public, and those relevant to allowing publication of proceedings through the media. Courts have historically been more willing to impose limitations on the reporting of proceedings up to judgment, than to make orders closing the courts to the public.

A further distinction is drawn between the reporting of proceedings up to judgment, and the publication of the judgment itself. As the Full Court has noted:8

“Thus, judgments of courts — the formal result and the reasons behind that result — stand in a different category from other elements of proceedings. The public has an interest in the way that decisions are made by their courts and in supervising the processes of reasoning that inform such decisions.”

As an historical note, the first version of the Act provided for proceedings to be heard in closed court. The High Court in Russell v Russell (supra) held that the relevant section was invalid insofar as it purported to apply to proceedings in State courts, but there was no discussion of the impact of s97 upon the Family Court.

Section 97 was amended in 1983 to provide for proceedings under the Act to be heard in open court.

The starting point — every lawyer’s duty of confidentiality

It is trite that a lawyer must not disclose any information which is confidential to a client and acquired by the lawyer during the client’s engagement, other than as permitted or required by law or in certain specified (and limited) circumstances.9

While the professional conduct rules specifically talk about client information, in my view the obligation extends to all information received by a lawyer in the course of acting in a matter. Were that not the case, a practitioner would have a duty not to disclose to any person information voluntarily provided by his or her client, but would not have a duty to the other party in the litigation to keep that party’ s information confidential. Bear in mind that the conduct rules are not an exclusive codification of what constitutes professional conduct.

It follows in my view that the fact that an ICL does not have a “client” does not make any difference to the overarching duty of confidentiality.

The Harman obligation

What is generally known as the Harman obligation10 was neatly summarised by the High Court in Hearne v Street11 as follows:

“Where one party to litigation is compelled, either by reason of a rule of Court, or by reason of a specific order of the Court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the Court, use it for any purpose other than that for which it was given unless it is received into evidence”.

That obligation is commonly referred to as an “implied undertaking”, but it is clearly a substantive legal obligation and it binds not only the litigant but also any third parties who know that the material was generated in legal proceedings, including lawyers for the litigant, and the ICL.

Rule 15.27(2) of the Family Law Rules codifies the obligation for Family Court proceedings.

The key elements are:

  1. The obligation extends to documents and information;
  2. The production of the documents or information by the other party must have been compelled in some way by a Court process;
  3. The material may not be used “for any purpose other than that for which it was given”; and
  4. The “implied undertaking” falls away once the material is received into evidence.

The obligation is an obligation to the court, not to the other party, and a breach is therefore contempt. Ignorance of the obligation is not a defence to contempt proceedings.12

In short, the documents and information may not be used for any purpose not connected with the conduct of the action. There is an important difference between the conduct of the action, and the subject matter of the action; the fact that the proceedings are concerned with the welfare of children does not mean that the documents and information can be used for a purpose that relates to that welfare, but not to the conduct of the litigation.

The implied undertaking applies not only to documents or other material obtained by compulsory means during the proceedings, but also the information derived from those documents “whether it be embodied in a copy or stored in the mind.”13 The obligation can, for example, apply to:

  • documents inspected after disclosure;
  • documents produced under subpoena including documents produced by a non-party;
  • witness statements;
  • expert reports;
  • affidavits;
  • answers to specific questions (interrogatories); and
  • disclosure lists.

It is very clear, therefore, that documents and information produced under subpoena or by virtue of disclosure, or reports generated, for example, by a single expert witness, may not be used for any purpose outside the litigation nor communicated to any person outside the litigation.

In all cases, if an ICL seeks to communicate to persons outside the court process information not in evidence and obtained by virtue of a subpoena, discovery, compulsory production by virtue of a court order, or a court-ordered expert’s report, he or she must first seek the leave of the court to do so.

What if the material is in evidence?

As noted above, the “implied undertaking” under the Harman principle ceases to apply once the material is in evidence. The matter has arisen in the Family Court of Australia when Watts J said:

“As pointed out in Esso Australia Resources Ltd v Plowman, the implied undertaking ceases once material is adduced in evidence, unless the Court restrains publication of it. It is therefore the case that had the information and documents in this case been used during a contested hearing in the Family Court (as opposed to consent orders being made as is the circumstance in this case), the documents would have been available to the [child support] Registrar, free of any argument, based on the Harman obligation.”14

The cessation of the Harman obligation once a document or information is in evidence must, I suggest, relate to the proposition that it would be a nonsense to pretend that statements made in open court (where members of the public can be present) should somehow retain their confidentiality. That somewhat begs the following questions:

  1. When is the content of an affidavit actually “in evidence”?; and
  2. Is there a difference in position between trial affidavits and affidavits in interim or interlocutory proceedings, bearing in mind that there is generally no oral evidence in those proceedings and accordingly no scope for the evidence to be “heard” by a member of the public sitting in the back of the court?

Subpoenaed documents

Documents produced under subpoena are not thereby admitted into evidence.

That is a fundamental point which (somewhat surprisingly) still seems to be occasionally misunderstood.

A document produced under subpoena is not in evidence until a judicial officer formally admits it into evidence, generally as an exhibit and often only at trial.

The fact that a subpoenaed document not in evidence might inappropriately be referred to in submissions in an interim hearing does not, in my view, alter that position.

In almost every case, therefore, documents produced under subpoena (and the information contained in them) will remain subject to the Harman obligation throughout the proceedings.

Affidavits

This is the area in which I think there are real traps for practitioners.

Some of us tend to assume that because material is in a sworn affidavit, and the affidavit is filed, the material is therefore in evidence. It is not.

As the Full Court said in Crowe15:

“An affidavit which has been placed on the court file does not become part of the proceedings until it is opened to the Court… [in this case] the affidavits… [were not read aloud but became part of the evidentiary material by counsel stating to the court “I formally read the affidavit into evidence.” The same result could have been achieved… [by tendering a list of affidavits relied upon. A mere statement to the effect that reliance is placed on a particular affidavit could (my emphasis) also be sufficient.”

Bear in mind also the following Family Law Rules:

  • Rule 15.05 (a party may file an affidavit without leave only if in accordance with the Rules or an Order). By way of simple example, affidavits filed late are in breach of that Rule;
  • Rule 15.06 (an affidavit filed with an application may be relied on in evidence only for the purpose of that application); and
  • The notation under Rule 15.04:

“The filing of an affidavit does not make it become evidence. It is only when the affidavit is relied upon by a party at a hearing or trial that it becomes, for that hearing or trial (subject to any rulings on admissibility), part of the evidence.”

The position is somewhat trickier in relation to affidavits filed for interim proceedings. While practitioners (understandably) treat those affidavits as being in evidence without ever going through the formality of asking the judicial officer to admit them, it is at least arguable that without being at least expressly admitted into evidence for the purpose of that hearing they are not in evidence.

On any interpretation, an affidavit filed is not in evidence until the hearing to which it relates commences. That is self-evident — as (for example) the party objecting to reliance on a clearly inadmissible affidavit does not have the opportunity to object to it until that hearing.

The fact that practitioners assume a document is in evidence, and the fact that some Judicial Officers in general or duty lists do not have the time or inclination to deal with objections to evidence, does not change that position.

For the purposes of complying with the Harman obligation the only safe position for a lawyer to take is to proceed on the basis that an affidavit is not in evidence unless and until it is formally admitted into evidence at a hearing.

Absent that, in a “typical” proceeding the Harman obligation will apply to all material in affidavits up to the point at which the deponent gives oral evidence at trial, or the affidavit is relied upon at trial without the witness being required to attend for cross-examination.

Section 12

The Harman obligation falls away once the relevant document or information is in evidence — but s121 does not. Section 121 of the FLA16 makes it an offence to publish any account of proceedings under the FLA that identifies a party, a person who is related to or associated with a party, or a witness in the proceedings. The provision as to when information will be taken as identifying a person is very broad, and so effectively prevents any but a very general account of proceedings.

The definition of “publish” in s102P is also very broad, and is to “disseminate or provide access to the public or a section of the public by any means”. Given the breadth of the definition of “to publish”, the key phrases in s121 are:

  • “any account of any proceedings”; and
  • “the public” or “a section of the public”.

The Federal Court of Australia has held that for the purposes of s121 an “account” of the proceedings is a “narrative, description, retelling or recital of such proceedings.”17

The Court went on to say

“Before there can be an account of proceedings in the relevant sense, a communication must purport to narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings.”

The meaning of the phrase “to the public or to a section of the public” was considered in Re Edelsten; ex parte Donnelly18 where Morling J said:

“In the context of section 121, ‘disseminates to the public’ should be taken as a reference to widespread communication with the aim of reaching a wide audience. It cannot have been intended by the legislature that the restriction of dissemination should apply, for example, to conversations between a party to Family Court proceedings and a close personal friend.”

Similarly, in considering s5(4) of the Companies (South Australia) Code, the High Court observed19:

“For some purposes and in some circumstances, each citizen is a member of the public and any group of persons can constitute a section of the public. For other purposes and in other circumstances, the same person or the same group can be seen as identified by some special characteristic which isolates him or them in a private capacity and places him or them in a position of contrast with a member or section of the public.”

and later:

“When the offerees’ special interest is substantially greater than or substantially different from the interest which the offerees would have had in the subject matter of the offer if the antecedent relationship did not exist, the ground for distinguishing them from a section of the public is substantial… The criterion which distinguishes an offer to a group of offerees who are not a section of the public from an offer to a section of the public is this: whether the offerees are members of a group who, by reason with their antecedent relationship with the offeror, have an interest in the subject matter of the offer substantially greater than or substantially different from the interest which others who do not have that relationship would have in the subject matter of the offer.”

The Full Court of the Family Court considered the issue in Re W: Publication Application20. In that case the Court considered the position of an ICL seeking to provide information from a judgment to the relevant state child welfare authorities. The Court said:

“Where the purpose of provision of the information is to assist the child welfare authorities in the discharge of their responsibility for the protection of children it is difficult to suggest that the “rational connection” focused on in Corporate Affairs Commission does not exist. If the separate representative, or another person, sought to provide the authorities with a copy of the portions of the judgment which related to a property settlement, it could easily be argued that for that purpose the authorities would constitute a “section of the public”. That is because they have no legitimate interest, above and beyond any other sections of the public, in acquiring that information. That sharply contrasts with the information concerned here in which they may have a significant and legitimate interest which is not shared by other sections of the public (my emphasis).

A later Full Court21 said:

“We would not regard the principle stated in Re W as being restricted to ‘child welfare authorities’. Even had his Honour not directed that a copy of his reasons and orders be provided to the contact centre, it is quite arguably (my emphasis) the case that the independent children’s lawyer could have made the documentation available to the centre without leave of the Court. In any event, in our view it was an entirely proper exercise of his Honour’s discretion to direct the provision of the materials to the contact centre in order that its staff could understand the role they were required to perform in facilitating contact between the father and the children.”

So what does all that mean for ICLs?

Bear in mind firstly that s121 deals with “an account of” the proceedings. That clearly captures, for example, orders made or reasons for judgment. Different considerations apply to information and documents obtained during the course of the proceedings, as opposed to an account of the proceedings themselves.

The critical issue for an ICL, therefore, in considering the application of s121 will be the issue of whether or not the intended recipient of the information has a legitimate interest above and beyond any other section of the public in acquiring that information.

For that reason, in my view there is no difficulty with an ICL publishing, for example:

  • copies of orders relating to contact to a contact centre or supervisory agency;
  • copies of orders relating to school reports, provision of information by a school, or for that matter excluding a parent from attending at the school, to the school; and
  • orders relating to parental responsibility to a school.

Note in each case that care should be taken to provide only the information in which there is a legitimate interest. So, a contact centre should not receive property orders any more than a settlement agent should receive parenting orders.

There is scope for disagreement as to whether the intended recipient of an account of proceedings has a “legitimate” interest differentiating that person or organisation from the rest of the “public”. The prudent course where possible, therefore, is still to seek leave of the Court to publish a copy of the orders to the intended recipient. That is particularly so as the words “quite arguably” in the passage quoted above from Oscar v Traynor provide only some limited comfort.

It is far better to be told by the court that you did not need to seek leave when you have sought it, than the opposite.

A proper understanding of s121, however, indicates that the application of that section is less likely to be of day-to-day concern to an ICL than the general principles of confidentiality which apply to all lawyers, and the “Harman obligation”.

Summary

As can be seen, this is an area which is not without complication. The consequences, though, of “getting it wrong” can be very significant and accordingly lawyers should always err on the side of caution. If in doubt, the prudent course is to seek leave of the court to disseminate information, and to seek that leave in very specific terms.

In general, however:

  • The publication of specific orders to people outside the proceedings who have a legitimate interest in them such that they can be readily distinguished from the general public is permitted;
  • The publication to persons outside the proceedings of documents or information obtained through compulsory court processes (and which would otherwise be confidential) is prohibited;
  • That prohibition falls away once the documents or information are in evidence in open court; but
  • There is in any event an overriding obligation on lawyers to keep confidential information which they receive in the course of acting in a matter.

1 eg R v Bell, ex parte Lees (1980) 146 CLR 141.
2 Re K[1994] FLC 92-461 at [80].
3 Bennett and Bennett [1991] FLC 92-191.
4 B & R v The Separate Representative (1995) FLC 92-636.
5 Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495.
6 Scott v Scott [1913] A.C. 417.
7 Raybos Ost P/L v Jones (1985) 2 NSWLR 47.
8 Re W: publication application [1997] FamCA 8.
9 Australian Solicitors Conduct Rules – Rule 9.
10 Harman v Secretary of State for Home Department [1983] 1AC 280.
11 Hearn v Street [2008] HCA 36 at 96.
12 Watkins v AJ Wright (Electrical) Ltd (1996) 3 All ER 31.
13 Crest Homes v Marks [1987] AC 829 at 854.
14 Pedrana v Pedrana & Anor (No 2) [2012] FamCA 348.
15 In the marriage of SS and CR Crowe (1988) 12Fam LR 696.
16 The Family Court Act (WA) equivalent is s243.
17 Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747.
18 (1988) 18 FCR 434.
19 Corporate Affairs Commission (South Australia) v Australian Central Credit Union [1985] HCA 64.
20 Re W: Publication Application [1997] FamCA 8.
21 Oscar v Traynor [2008] FamCAFC 158.

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O'Sullivan Davies Lawyers
Level 27,  197 St Georges Tce
Perth WA 6000

Phone : +61 8 9426 4711

Fax : +61 8 9426 4722

info@osullivandavies.com.au

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