Children's Court New South Wales

• Medium Neutral Citation: Re Anna [2012] NSWChC 1
• Hearing dates: 2 March 2012
• Decision date: 02 March 2012
• Jurisdiction: Care and protection
• Before: Judge Mark Marien SC, President

Decision

Pursuant to sub-clause 11 (2) of the Care and Protection Regulation, the affidavit of the caseworker is inadmissible and accordingly, the Director General's application for leave to file the affidavit must be refused.

• Catchwords: CHILDREN - care proceedings - protection of confidentiality in ADR - clause 11 of Regulation - paramountcy principle - functions and powers of the President - powers of Children's Magistrate to review decision of Children's Registrar - jurisdiction of the Children's Court
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Children and Young; Persons (Care and Protection) Regulation 2000; Evidence Act 1995; Children's Court Act 1987; Grassby v The Queen (1989) 168 CLR; Family Law Act 1975
• Cases Cited: Field v Commissioner for Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 291; AWA Limited v George Richard Daniels T/A Deloitte Haskins and Sells (Supreme Court of NSW, Commercial Division, 18 March 1992, unreported); Grassby v The Queen (1989) 168 CLR 1; Re Alistair [2006] NSWSC 411; Talbot v Minister for Community Services (1993) 30 NSWLR 487; George v Children's Court of NSW [2003] NSWCA 389; Jackson v Sterling Industries Ltd (1987) 162 CLR 612; Centacare Central Queensland and Downing v G and K (1998) 23 Fam; LR 476; Re Wakely and Hanns (1993) 17 Fam LR 215; Trapp v Vonne and Another (2009) 41 Fam LR 471
• Category: Interlocutory applications
• Parties: Director General of the Department of Family and Community Services
• File Number(s): 420/11

Judgment

1 These proceedings relate to the child Anna (not her real name). The Director General commenced proceedings in the court on 2 September 2011 seeking, inter alia, a long-term order placing Anna under the parental responsibility of the Minister until she attains the age of 18 years. The mother and father oppose the making of this order. The mother seeks an order that Anna be placed under her sole parental responsibility until she attains the age of 18. The father, who is separated from the mother, does not seek restoration of Anna to his care but supports the mother's case.

2 On 10 October 2011 the Court made a determination under s 72 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) that Anna is a child in need of care and protection. In accordance with a direction by the court under s 65 of the Care Act, a Dispute Resolution Conference (DRC) was conducted by a Children's Registrar on 30 November 2011.

3 The Director General asserts that during the course of the DRC the father made an 'admission'. No disclosure of the 'admission' has been made by the Children's Registrar who conducted the DRC. (Disclosure may be made by a Children's Registrar pursuant to sub-clause 11 (5) of the Children and Young Persons (Care and Protection) Regulation 2000 (the Regulation)). Further, the Children's Registrar did not make a notation of the father's 'admission' on the court file.

4 I will assume, only for the purpose of this judgment, that something was said by the father during the DRC which is described by the Director General as an 'admission'. I should make it clear that I have made no factual finding that any admission was made by the father at the DRC.

5 In written submissions the Director General states that the admission:

"[M]ay or may not go directly to [the father's] capacity to be responsible for the safety, welfare and well-being of his daughter."

6 Later in his written submissions the Director General submits:

"While any 'admission' the father made during the DRC may or may not prove a crucial factor when the court comes to make final orders, unless such information is before the court this 'blind-spot' may well serve to undermine the credibility and effectiveness of any long term decision made by the court in relation to the future care and protection of [Anna]."

7 The Director General asserts that following the DRC, the father's lawyer gave an 'undertaking' to the parties that the father would file an affidavit in which he would include the admission he made at the DRC. The father subsequently filed an affidavit but did not include in the affidavit any reference to the admission allegedly made at the DRC.

8 The Director General now seeks leave of the court to file an affidavit of Mr James Conaty, Manager Casework, who was present at the DRC in which he refers to the admission made by the father at the conference. The Director General seeks leave on condition that consent to the filing of the affidavit (under sub-clause 11 (4) (a) of the Regulation) is given by the father and the Children's Registrar who conducted the DRC. In the event that consent is not forthcoming from either the father or the Children's Registrar, the Director General seeks the courts leave to file Mr Conaty's affidavit in the proceedings.

9 The Director General contends in his written submissions that leave should be granted as the affidavit of Mr Conaty:

"is directly relevant to the primary issues before the court concerning the safety, welfare and wellbeing of [Anna]."

10 The Director General further contends in his written submissions that while the public policy reasons for confidentiality of DRCs are acknowledged:

"In this case, where an "admission" is allegedly made by the father and the father gives an undertaking to include his "admission" in an affidavit before the court, it is incumbent on the court in its role of ensuring the safety, welfare and wellbeing of [Anna] that all relevant information is obtained and reviewed before final orders are made."

11 The father and the mother oppose leave being granted to the Director General to file the affidavit of Mr Conaty. Ms Canning, the independent legal representative for Anna, submits that the court has no power to grant leave and that if it has such power leave should not be granted.

The protection of confidentiality in alternate dispute resolution.

12 A pivotal feature of alternative dispute resolution (ADR) is that, except in defined circumstances, what is said and done in the course of ADR is confidential in the sense that it cannot be admitted into evidence in court proceedings. This important protection of confidentiality encourages frank and open discussions between the parties outside the formal court process. The rationale for the protection was explained by the High Court in Field v Commissioner for Railways for New South Wales [1957] HCA 92; (1957) 99 CLR 291 in the joint judgment at 291-292:

"As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered."

13 The protection of confidentiality is therefore an important policy consideration in the conduct of ADR. The encouragement of frank and open discussion between the parties is particularly important in ADR in child protection cases. ADR provides parents with the opportunity to freely discuss with the Department, in a safe and confidential setting, the parenting issues of concern to the Department and, most importantly, it provides the Department with the opportunity to discuss with the parents in that setting what needs to be done by the parents to address the Department's concerns.

14 However, there are countervailing public policy considerations which are reflected in clause 11 of the Regulation. In the absence of consent by the relevant parties, sub-clause 11 (5) provides that information obtained in connection with the ADR may be disclosed by the person conducting the ADR but only in defined circumstances. Those circumstances include that there are reasonable grounds to believe that disclosure of the information is necessary to prevent or minimise the danger of injury to a person or damage to property (sub-clause 11 (5) b)) or if there are reasonable grounds to suspect that a child or young person is at risk of harm (sub-clause 11 (5) (c)).

15 Clause 11 of the Regulation provides as follows:

11 Protection of information disclosed in alternative dispute resolution

(1) In this clause: alternative dispute resolution means:

(a) counselling or alternative dispute resolution conducted under section 37 of the Act, or

(b) a dispute resolution conference conducted under section 65 of the Act, or alternative dispute resolution arising out of such a dispute resolution conference, or

(c) alternative dispute resolution conducted under section 114 of the Act.

(2) Evidence of anything said or of any admission made during alternative dispute resolution is not admissible in any proceedings before any court, tribunal or body.

(3) A document prepared for the purposes of, or in the course of, or as a result of, alternative dispute resolution is not admissible in evidence in any proceedings before any court, tribunal or body.

(4) Subclauses (2) and (3) do not apply with respect to any evidence or document:

(a) if the persons in attendance at, or identified during, the alternative dispute resolution and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or

(b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under subclause (5)(c).

(5) A person conducting alternative dispute resolution may disclose information obtained in connection with the alternative dispute resolution only in any one or more of the following circumstances:

(a) with the consent of the person from whom the information was obtained,

(b) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to a person or damage to property,

(c) if there are reasonable grounds to suspect that a child or young person is at risk of harm within the meaning of section 23 of the Act,

(d) if the disclosure is reasonably required for the purpose of referring any party or parties to alternative dispute resolution to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the alternative dispute resolution for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,

(e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.

16 Before coming to consider clause 11 of the Regulation, brief reference should be made to s 131 (1) of the Evidence Act 1995 which renders inadmissible a communication or document made during negotiations to settle a dispute. Section 131 (2) sets out a number of exceptions to the prohibition against admissibility contained in s 131 (1). One of those exceptions is where evidence has been adduced in the proceedings, or an inference from evidence that has been adduced, is likely to mislead the court unless evidence of the communication or the document is adduced to contradict or to qualify that evidence: s 131 (2) (g). In this case, the Director General asserts that the admission made by the father during the DRC contradicts certain claims made by him in two affidavits he has sworn. The admission may therefore be admissible under s 131 (2) (g). However, in relation to care proceedings, s 93 (3) of the Care Act provides that the rules of evidence only apply to proceedings if the court determines that they are to apply. Accordingly, if s 131 were to apply in determining the admissibility of anything said or of any admission made at ADR (as defined in sub-clause 11 (1) of the Regulation), to be admissible that evidence (even if it is admissible as an exception under s 131 (2) of the Evidence Act) would also have to fall within an exception in clause 11 (4) of the Regulation. Therefore, with respect to ADR in care proceedings, the relevant provision in determining the admissibility of anything said during the ADR is clause 11 of the Regulation.

17 It is necessary to make some important observations as to the effect of clause 11 of the Regulation. Sub-clause (1) defines 'alternative dispute resolution' to include a dispute resolution conference (DRC) conducted under s 65 of the Care Act. Accordingly, the confidentiality provisions in clause 11 apply to a DRC. Sub-clause (2) provides that evidence of anything said or of any admission made during ADR is not admissible in any proceedings before any court, tribunal or body. Sub-clause (3) renders inadmissible a document prepared for the purposes of, or in the course of, or as a result of, ADR. However, clause 11 does not impose a general prohibition against disclosure of information obtained in connection with ADR. Clause 11 does not, therefore, prohibit a person attending a DRC disclosing information obtained in connection with the DRC to a third party. For example, the clause does not prohibit a parent disclosing to their treating professional what was said at a DRC nor does it prohibit a lawyer who appears at a DRC as an agent disclosing to their principal what transpired at a DRC.

18 Nor does clause 11 prohibit a party attending a DRC using information disclosed by another party at the DRC to make independent inquiries and tender in evidence in the proceedings the result of those independent inquiries. In Field v Commissioner for Railways for NSW (supra) in the joint judgment, after stating that a party could not rely on an admission in settlement negotiations, their Honours said at 292:

"This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence."

19 Field v Commissioner for Railways was applied by Rolfe J in AWA Limited v George Richard Daniels T/A Deloitte Haskins and Sells (Supreme Court of NSW, Commercial Division, 18 March 1992, unreported). His Honour said (at 10) that the defendants in that case:

"...are not seeking to prove any admission or statement made at mediation. They are following, by the service of appropriate process, a line of inquiry about which they learned at mediation, the mediation process having failed. In due course, they will seek to prove the matter. Whether they succeed will depend upon the usual considerations relating to the admissibility of evidence. They will not fail, however, because of the circumstances in which they became aware of the matter."

20 In AWA, Rolfe J said (at 9) that unless a relevant admission in mediation could be proved by independent means:

"A party could make admissions about all manner of things going directly to the issues in the proceedings and then object to any attempt by the other party to prove them on the hearing by legitimate means. That consequence would more completely stifle mediation and settlement negotiations than allowing the matters to be proved by admissible evidence."

21 In accordance with these authorities, if, for example, a party disclosed at a DRC that he or she has a conviction for a serious criminal offence (that conviction being relevant to an issue in the proceedings), the other parties are not precluded from independently obtaining police records to prove that criminal conviction and clause 11 would not render the police records inadmissible. Sub-clause 11 (2) only renders inadmissible the admission to the conviction which was made during the DRC.

22 Clause 11 provides for certain exceptions to the inadmissibility of information disclosed at ADR. Sub-clause 11 (4) provides that subclauses (2) and (3) do not apply with respect to any evidence or document:

• if consent is obtained under sub-clause 11 (4) (a) or,
• there has been disclosure of the information by a Children's Registrar under sub-clause 11 (5) (c).

23 It is also to be observed that sub-clause 11 (5) does not stipulate that a decision by the Children's Registrar either to disclose or not disclose information obtained in connection with a DRC is to be made at any particular time. Therefore, a decision could be made by a Children's Registrar to disclose such information after a DRC has concluded or a Children's Registrar may make a decision during the course of a DRC not to disclose information but later determine that the information should be disclosed.

24 Sub-clause 11 (5) (c) is curiously drafted. The sub-clause provides that a person conducting ADR may disclose information obtained in connection with the ADR only in any one or more of the named circumstances in sub-clauses (5) (a) to (5) (e). The circumstance referred to in (5) (c) is:

"if there are reasonable grounds to suspect that a child or young person is at risk of harm within the meaning of section 23 of the Act."

25 However, sub-clause (5) (c) does not require that there be any relationship or connection between the disclosure at the DRC and the existence of reasonable grounds to suspect that a child or young person is at risk of harm. This must clearly be a drafting oversight. A connection between the disclosure and the circumstance is required in sub-clause (5) (b) ("if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to a person or damage to property"). The only reasonable conclusion is that it was also intended by the legislature that there should also be a connection in sub-clause (5) (c) between the disclosure and the existence of reasonable grounds to suspect that a child or young person is at risk of harm.

26 The further comment I should make is that sub-clause 11 (5) (c) refers to a child or young person being at risk of harm "within the meaning of section 23 of the Act." However, s 23 of the Act (which was amended on 7 April 2009 by the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009) defines the meaning of a child or young person who is "at risk of significant harm". It is unclear whether the legislature intended when amending s 23 of the Care Act that the circumstance in sub-clause 11 (5) (c) should also refer to a risk of significant harm. But as sub-clause 11 (5) (c) presently stands, only limited assistance is to be derived from s 23 as to the meaning of "risk of harm."

27 I understand that the Regulation is due to be automatically repealed under the Subordinate Legislation Act 1989 on 1 September 2012 and that the Department is currently reviewing the Regulation and proposes to prepare a draft new care Regulation after public consultation. In that review process the Department should have regard to the drafting problems in sub-clause (5) of the Regulation to which I have referred.

28 In relation to the instant case, the effect of clause 11 is that because there has been no disclosure of the admission by the Children's Registrar under subclause 11 (5) (c), the affidavit of Mr Conaty is not admissible under sub-clause 11 (4) (b). While the Director General agrees that this is the effect of clause 11, he submits, that the Children's Court may still admit the affidavit either under s 15 of the Children's Court Act 1987 or, as I understand the submission, in conformity with the paramountcy principle in s 9 (1) of the Care Act and as part of the court's inquisitorial obligation "to actively seek out the "truth", for evidence that is relevant to the core issues, i.e. the care and protection of [Anna]."

The Children's Registrar's "decision" is alleged to have been erroneous

29 The Director General also submits that the 'decision' of the Children's Registrar not to disclose the admission was erroneous because, first, the admission fell within sub-clause 11 (5) (c) and secondly, in refusing to disclose the information, the Children's Registrar failed to have regard to the paramountcy principle in s 9 (1) of the Care Act. The Director General contends that clause 11 of the Regulation is to be read subject to the paramountcy principle.

30 The difficulty with this submission of the Director General is that in accordance with the confidentiality provisions in clause 11 of the Regulation, I cannot be told (subject to the exceptions in sub-clause 4) of anything said at a DRC (including by the Children's Registrar). I therefore am unable to find that any 'decision' was made by the Children's Registrar with respect to the issue of disclosure under sub-clause (5). In this regard, I should say that it is a matter of great concern that the Director General, in his written submissions, quite inappropriately, sought to canvass events which occurred in the course of the DRC surrounding non-disclosure by the Children's Registrar.

31 The Director General submits that in my capacity as President of the Children's Court, I should now review and correct the allegedly erroneous 'decision' of the Children's Registrar and grant leave to the Director General to file the affidavit of Mr Conaty either, as I understand it, under sub-clause 11 (4) (b) of the Regulation or pursuant to s 15 of the Children's Court Act or some other general power in conformity with the paramountcy principle and the court's inquisitorial function. The Director General submits that unless this is done there will be a 'void' or 'vacuum' in the operation of clause 11 whereby an erroneous decision by a Children's Registrar not to disclose information under sub-clause 11 (5) (c) is unable to be reviewed and corrected.

32 As I have said, the principle obstacle to this submission by the Director General is that as a result of the confidentiality provisions in clause 11, I am unable to find that any 'decision' was made by the Children's Registrar during the DRC on the issue of disclosure (or on any other issue). However, even assuming that I may properly be made aware of any such decision (for example, with the consent of the parties), it is necessary to say something about my functions and powers as President of the Children's Court in relation to the powers and functions of a Children's Magistrate.

33 As President, I have no judicial powers in addition to that of a Children's Magistrate. I have additional 'functions' as are set out in s 16 (1) of the Children's Court Act; for example, "to administer the court" (s 16 (1) (a)) and "to provide judicial leadership to the Court" (s 16 (1) (e). The only additional functions that may be exercised by the President to those set out in s 16 (1) are those derived from s 16 (2) which provides that the President "may also exercise any of the functions that are conferred or imposed on a Children's Magistrate under this or any other Act."

34 Dr Bao-Er, on behalf of the Director General, was unable to point to any provision in the Care Act, the Regulation or any other legislation which expressly or impliedly confers upon a Children's Magistrate (and therefore the President) or a Children's Registrar (including the Senior Children's Registrar) a power to review a decision made by a Children's Registrar in the course of a DRC. As an inferior court of record, the jurisdiction of the Children's Court, like that of the Local Court, is expressly conferred by statute and by rules and regulations made under a statute. The Children's Court also has implied powers which arise whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be derived by implication from statutory provisions conferring particular jurisdiction: Grassby v The Queen (1989) 168 CLR 1 per Dawson J at 16-17.

35 In determining whether the Children's Court (or any other court) has power to review a decision of a Children's Registrar at a DRC, it is necessary to clearly identify the functions of a Children's Registrar in conducting a DRC. Those functions are set out in s 65 (1), 1A) and (2A) of the Care Act and in Children's Court Practice Note 3, Alternative Dispute Resolution Procedures in the Children's Court. The Children's Registrar is to act as a conciliator and has only an advisory role, not a determinative one: s 65 (2A) of the Care Act and paragraph 15.1 of Practice Note 3. It is therefore not the function of a Children's Registrar at a DRC to determine the rights and obligations of the parties. The exercise or non-exercise by a Children's Registrar of the discretion in sub-clause 11 (5) (c) to disclose certain information does not determine the rights and obligations of any of the parties. Given the functions of a Children's Registrar at a DRC, it is therefore not surprising that there is no statutory mechanism for review of a decision made by a Children's Registrar whilst conducting a DRC.

36 In addition, given the confidentiality provisions in clause 11, a review of a decision of a Children's Registrar at a DRC could not be fairly conducted because, in the absence of consent of the parties, clause 11 would prohibit disclosure to the court of relevant information disclosed during the DRC which would be relevant to the decision of the Children's Registrar under review.

37 Further, the availability of judicial review of decisions made by a Children's Registrar at a DRC, has the potential to wholly undermine the ADR process as parties would be concerned that disclosures they make during ADR may be admitted into evidence in review proceedings.

38 No express or implied power is conferred on the President, a Children's Magistrate or a Children's Registrar (including the Senior Children's Registrar) to review a decision of a Children's Registrar at a DRC. Accordingly, I conclude that the Children's Court does not have the power to review a decision of a Children's Registrar at a DRC (including a decision not to disclose information pursuant to sub-clause 11 (5) (c) of the Regulation).

Section 15 of the Children's Court Act 1987

39 However, the Director General further submits that, apart from clause 11 of the Regulation, the Children's Court retains a power under s 15 of the Children's Court Act to admit Mr Conaty's affidavit into evidence in accordance with the paramountcy principle in s 9 (1) of the Care Act. The Director General referred to the statement by Kirby J in Re Alistair [2006] NSWSC 411 at [81] that proceedings in the Children's Court are 'inquisitorial' and submits:

"It is incumbent on the court in its role of ensuring the safety, welfare and well-being of [Anna] that all relevant information is obtained and reviewed before final orders are made."

40 The Director General further submits,

"The court has an obligation to actively seek for the "truth", for evidence that is relevant to the core issues, i.e. the care and protection of [Anna]."

41 I do not understand that the statement by Kirby J in Re Alistair concerning the inquisitorial nature of care proceedings, is to be taken as a statement by his Honour that every aspect of care proceedings is inquisitorial in nature (see Talbot v Minister for Community Services (1993) 30 NSWLR 487 per Young J at 499) or that the Children's Court has an 'obligation to actively seek out the truth' for evidence that is relevant to the care and protection of a child or young person. Nor do I understand that his Honour was saying that the Children's Court may receive any evidence relevant to the care and protection of a child or young person even if there is a statutory prohibition against the admission of the evidence.

42 In my view, the Children's Court is not empowered by s 15 of the Children's Court Act to admit the affidavit of Mr Conaty contrary to the clear provisions of Regulation 11. In George v Children's Court of NSW [2003] NSWCA 389, the Court of Appeal held that s 15 does not extend the powers of the Children's Court beyond its powers under the Care Act. The Court held that s 15 confers on the Children's Court such powers as are 'necessary' or 'incidental' to the exercise of the court's jurisdiction: Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620-621. As I have said, as an inferior court, the jurisdiction of the Children's Court is expressly conferred by statute: Grassby v The Queen (supra). The Director General has not identified any express or implied power conferred on the Children's Court by the Care Act which carries with it a necessary or incidental power to admit the affidavit of Mr Conaty contrary to clause 11 of the Regulation.

The paramountcy principle - s 9 (1) of the Care Act

43 As I have said, the Director General submits that not only must clause 11 of the Regulation be read subject to the paramountcy principle in s 9 (1) of the Care Act, but that quite apart from clause 11, anything said at a DRC which is relevant to the safety, welfare and well-being of a child is admissible and should be received by the court in conformity with the paramountcy principle.

44 Section 9 (1) of the Care Act provides:

"This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount."

45 As I pointed put to Dr Bao-Er in the course of his submissions, almost everything said at a DRC would be relevant to the safety, welfare and well being of the child or young person. Further, if the Director General's submission was to be accepted, then clause 11 of the Regulation would be entirely superfluous with no work to do as anything said at a DRC may be admitted into evidence as long as it is relevant to the safety, welfare and wellbeing of the child. This would result in ADR in care proceedings becoming totally unworkable and would lead to a total break down of this important process in care and protection cases.

46 In Centacare Central Queensland and Downing v G and K (1998) 23 Fam LR 476 the Full Family Court approved the following statement by McGovern J in Re Wakely and Hanns (1993) 17 Fam LR 215 at 217 in relation to the importance of confidentiality for the effectiveness of counselling under s 62 (2) of the Family Law Act:

"...anything said at a s 62 (2) conference could be said to impinge on the welfare of a child and, without hearing the evidence, a judge would not be in the position to decide whether or not a thing said goes to the welfare of a the child or not, or whether or not it should be admitted; parties would never feel free to express their views, albeit in strong language, in that situation and generally this would impose an unnecessary inhibition upon a confidential counselling session..."

47 It cannot be said that clause 11 pays no regard to the paramountcy principle in relation to the exceptions to inadmissibility. Whilst the express language of s 9 (1) is not re-stated in clause 11, some of the circumstances in which a Children's Registrar may disclose information in connection with a DRC as are set out in sub-clause (5), do reflect the paramountcy principle. Information may be disclosed if there are reasonable grounds to believe that the disclosure of the information is necessary to prevent or minimise the danger of injury to a person or damage to property (sub-clause 5 (b)) or if there are reasonable grounds to suspect that a child or young person is at risk of harm (sub-clause 5 (c)).

48 There is highly persuasive authority against the Director General's submissions that clause 11 is to be read subject to the paramountcy principle and that the court retains a power to admit Mr Conaty's affidavit in conformity with the paramountcy principle. These authorities relate to interpretation of confidentiality provisions in the Family Law Act concerning mediation and family counselling under that Act and hold that in determining whether information disclosed during mediation or family counselling is admissible, a court cannot go outside the express terms of those confidentiality provisions.

49 In Centacare Central Queensland and Downing v G and K (supra) the Full Court of the Family Court considered the now repealed s 19N of the Family Law Act (which rendered disclosures to a family and child counsellor and a court mediator inadmissible except in prescribed circumstances). In that case a husband issued a subpoena against a family counselling organisation approved under the Family Law Act to produce documents from the wife's counselling session. At the trial the counselling organisation objected to the subpoena on the ground that s 19N rendered inadmissible evidence of anything said, or admission made, at a counselling session. The trial judge overruled the objection on the ground that s 19N was subject to the principle of the paramountcy of the child's best interests as contained in s 65E (now s 60CA) of the Family Law Act. The Full Court upheld the appeal by the counselling organisation and set aside the trial judge's order requiring production of the documents. The Full Court held that s 19N must be given its ordinary meaning an should not be read down by reference to the paramountcy principle in s 65E. The Court said at 489:

"In our view it should not be assumed that extending the operation of the principle that the best interests of the child are the paramount consideration to a wider category of matters will necessarily benefit children. The provisions of the Act, given their ordinary meaning, indicate that the legislature has determined that its objectives, including the object of advancing the interests of children, would be best achieved by making provisions for confidential counselling, even though this might have the effect of excluding evidence which would have assisted the court in some particular cases. While there are no doubt policy arguments to the contrary, expressed forcefully by his Honour, we are not satisfied that there is adequate reason to justify what would in effect be a judicial reversal of what appears to be an unambiguous legislative answer to a long recognised policy."

50 In Trapp v Vonne and Another (2009) 41 Fam LR 471 Riethmuller FM considered s 10D of the Family Law Act which prohibits a family counsellor from disclosing a disclosure made during family counselling except in prescribed circumstances such as where the counsellor reasonably believes that the disclosure is necessary to protect a child from the risk of harm (whether physical or psychological) (s 10D (4) (a)) or is necessary to prevent or lessen a serious and imminent threat to the life or health of a person (s10D (4) (b)). Section 10E of the Family Law Act relates to the admissibility in certain circumstances of a disclosure made during family counselling, namely, where there is an admission or disclosure that a child under 18 years has been abused or is at risk of abuse (s10E (2)). In that case the wife issued a subpoena on a family counsellor (who had conducted family counselling under the Family Law Act with her husband). The subpoena was opposed by the family counsellor, relying on ss 10D and 10E. The wife sought to obtain any admissions by the father that he had been violent towards her.

51 Riethmuller FM held that the violence alleged against the wife was outside the terms of s 10E and ruled that the family counsellor was not compelled to produce the documents. At [16], his Honour said of any such admissions by the father:

"The fact that it may be probative and compelling evidence, and the fact that it may be central to a very serious issue in the trial, does not warrant the court departing from the clear words of parliament in ss 10D and 10E: see Centacare Central Queensland and Downing v G and K (1998) 23 Fam LR 476. The provisions do not give a general discretion to the court but a limited one, to be exercised in accordance with the sections."

52 In my view, the same reasoning as expounded in Centacare and Trapp applies in the instant case. Clause 11 of the Regulation is to be given its ordinary meaning and is not to be read down by reference to considerations outside clause 11. The Full Family Court said in Centacare that s 19N of the Family Law Act, appears to be "an unambiguous legislative answer to a long recognised policy." The same may be said of Regulation 11. Accordingly, evidence of anything said or of any admission made during ADR is not admissible unless the exceptions in sub-clause (4) apply.

53 The Director General sought to distinguish the decisions in Centacare and Trapp on the basis that the paramountcy principle, as stated in the Family Law Act, is framed differently from s 9 (1) of the Care Act. Whilst the paramountcy principles in the Family Law Act and the Care Act are not expressed in identical terms, they clearly are of the same effect.

54 It was also submitted by the Director General that Trapp can be distinguished on the basis that a family counsellor under the Family Law Act and a Children's Registrar have different functions. In my view, that distinction does not impact upon the ratio decidendi in both cases, namely, that the relevant confidentiality provisions under the Family Law Act are to be interpreted only in accordance with their express terms. These decisions therefore remain highly persuasive.

55 The interpretation of statutory confidentiality provisions in relation to ADR as expounded on Centacare and Trapp is not to be viewed as being inimical to the paramountcy principle. As the Full Court explained in Centacare, the preservation of confidentiality of ADR (subject to very limited exceptions) is an important means of advancing the interests of children by promoting and assisting in the resolution of disputes concerning their care and protection through ADR without the need to resort to formal court processes.

56 As I stated at the outset, the Director General submits that leave should be granted for the filing of Mr Conaty's affidavit not only because the admission is relevant to the safety, welfare and well-being of the child, but also because an undertaking given by the father's lawyer that the father would file an affidavit repeating the admission was not adhered to. Even assuming that such an undertaking was given by the father's lawyer (and I make no finding in that regard) any failure of the father to adhere to an undertaking given to the parties cannot in any way impinge upon the confidentiality of what was said at the DRC given that clause 11 must be construed in accordance with its express terms.

Conclusion

57 For these reasons, pursuant to sub-clause 11 (2) of the Regulation, the affidavit of Mr Conaty is inadmissible and accordingly, the Director General's application for leave to file the affidavit must be refused.

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Decision last updated: 06 June 2012