Kuang & Kuang

Case [2025] FedCFamC1A 31

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Kuang & Kuang [2025] FedCFamC1A 31

Appeal from: Kuang & Kuang [2024] FedCFamC2F 1191
Appeal number: NAA 245 of 2024
File number: PAC 2628 of 2023
Judgment of: HARPER, RIETHMULLER AND STRUM JJ
Date of judgment: 5 March 2025
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PRACTICE AND PROCEDURE – Appeal against dismissal of an application for release from the implied undertaking – Where appellant is facing criminal charges in District Court of New South Wales – Where appellant sought to use a redacted version of the single expert report prepared in the course of the parenting proceedings to defend the criminal charges – Where there is a real possibility that release of the report from the implied undertaking may contribute to the administration of justice in the appellant’s criminal proceedings – All grounds of appeal established – Leave to appeal granted – Appeal allowed – Costs certificates issued.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where evidence relates to the attitude of the single expert report writer in relation to use of the report in the criminal proceedings – Where attitude of the expert found to be of limited relevance – Leave granted to adduce further evidence.

Legislation:

Evidence Act 1995 (Cth) s 75

Family Law Act 1975 (Cth) ss 60CA, 60CC, 114S, 114Q

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28(3)(e)(i), 35(b)

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.05

Federal Court and Federal Circuit and Family Court Regulations2022 (Cth) reg 4.02(1)(a)

Criminal Procedure Act 1986 (NSW) ss 143, 141
Cases cited:

Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42; [2019] FCA 964

CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67

Chakora & Bhander [2023] FedCFamC1F 127

Commissioner of Police (NSW) v Bowers [2022] FedCFamC1F 526

Dambrose & Pacetti [2023] FedCFamC1A 206

Diamond & Diamond [2024] FedCFamC1A 201

Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jess v Scott (1986) 12 FCR 187

KMD v CEO (Department of Health NT) [2025] HCA 4

Lasso & Malaka (2022) 65 Fam LR 423; [2022] FedCFamC1A 130

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3

Littlefield & Pemble (2023) 67 Fam LR 603; [2023] FedCFamC1A 198

Littlefield & Pemble (No 2) [2023] FedCFamC1F 793

Lucciano v The Queen (2021) 287 A Crim R 529; [2021]…

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Kuang & Kuang [2025] FedCFamC1A 31
Case
[2025] FedCFamC1A 31
Decision Date

CaseChat Overview and Summary

The appeal in Kuang & Kuang concerns the release of a single expert report from an implied undertaking that it be not disclosed to any person other than those specified in the Court's orders. The appellant, who is facing criminal charges, sought to use a redacted version of the report to defend himself in the criminal proceedings. The central legal issues were whether the appellant could be released from the implied undertaking and whether the report could be used in the criminal proceedings. The Court held that the appellant had demonstrated a real possibility that the report could contribute to the administration of justice in his criminal proceedings, and thus, the special circumstances sufficient to justify a departure from the implied undertaking had been met.

The Court found that the appellant had shown a sufficient connection between the issues in the parenting proceedings and the criminal proceedings to warrant the release of the report. The Court reasoned that the test for releasing the report from the implied undertaking does not require a probability, but rather a real possibility that the report may contribute to the administration of justice. The Court also noted that the special circumstances needed to be sufficient, but not necessarily cogent and persuasive. The Court considered that the appellant's criminal charges related to the same respondent and involved similar factual assertions that could be addressed by the expert's opinions.

In light of these findings, the Court granted leave to appeal, allowed the appeal, and set aside the primary judge's orders. The Court ordered that the appellant and his legal advisers be released from the implied undertaking and permitted to use the redacted report in the criminal proceedings. The Court also granted costs certificates to both parties, allowing them to seek reimbursement of their legal costs from the Attorney-General.

The Court's decision highlights the importance of balancing the interests of justice in both criminal and family law proceedings. By allowing the release of the report, the Court facilitated the appellant's ability to defend himself in the criminal proceedings while still protecting the welfare of the children involved in the parenting proceedings. This outcome demonstrates the Court's commitment to ensuring that the administration of justice is not hindered by overly restrictive confidentiality orders.

Orders

Orders of the court

NAA 245 of 2024

PAC 2628 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR KUANG

Appellant

AND:

MS KUANG

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER, RIETHMULLER AND STRUM JJ

DATE OF ORDER:

5 MARCH 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 16 January 2025 be allowed and the appellant have leave to adduce into evidence the email of Dr D dated 15 January 2025.

2. The appellant have leave to appeal.

3. The appeal be allowed.

4. The orders made by the primary judge on 29 August 2024 be set aside.

5. The appellant and his legal advisers in proceeding number PAC 2628 of 2023 be released from his implied undertaking to the Court, and have leave pursuant to Order 2 of the orders made on 5 July 2024, to:

(a) use the redacted report of Dr D dated 4 July 2024 (“the redacted report”) in, and for the purposes of defending the charges for which he is standing trial in, District Court of New South Wales Proceedings … and any superior court to which the criminal proceedings may be referred or appealed ("the criminal proceedings");

(b) provide a copy of the redacted report to his counsel in the criminal proceedings, to be used as such counsel considers appropriate in and for the purposes of the criminal proceedings;

(c) provide a copy of the redacted report to the Director of Public Prosecutions in New South Wales and New South Wales Police for the purposes of the criminal proceedings; and

(d) any legal practitioner appearing on behalf of, or advising, the appellant and the respondent, or either of them, in relation to the criminal proceedings.

6. The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of his costs incurred in relation to the appeal.

7. The respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of her costs incurred in relation to the appeal.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, leave to appeal will be granted; the appeal will be allowed; and we shall re-exercise discretion and grant relief substantially in the terms sought by the appellant.BACKGROUND The substantive parenting proceedings in the Federal Circuit and Family Court of Australia (Division 2) relate to the two children of the appellant and of the respondent mother, who were nine and four years of age at the time of the order. The children live, and it is common ground between the parents that they will continue to live, with the respondent. The issue for determination in those proceedings is what time, if any, the children will spend with the appellant. The appellant seeks orders that they spend time with him on alternate weekends and half of the school holidays. The respondent seeks orders that the children spend no time, and have no communication with, the appellant. The charges in the District Court of New South Wales proceedings relate to multiple offences against the respondent. If found guilty, the appellant may be sentenced to a period of incarceration. By orders made on 8 February 2024, the single expert was appointed to “inquire into and report upon matters pertaining to the welfare of the children”. Insofar as the primary judge stated that “[t]he report is not a Family Report, but rather a single expert report prepared by an assessing psychiatrist” (Reasons at [8]), we consider that to be a distinction without a difference for present purposes, albeit we acknowledge that, in other circumstances, the distinction may assume greater relevance (see Sahadi & Savva and Anor at [56]–[66]). Further orders were made on 16 May 2024 with respect to the preparation of the report, requiring the legal representative for the appellant and the paternal grandparents (who were joined as parties to the proceedings), as well as the Independent Children’s Lawyer, to file an undertaking not to disclose to the appellant or the grandparents any information they may have as to the contact details or any information that may lead to the identification of the location of the children and/or the respondent. Orders made on 5 July 2024 releasing the report to the parties provided that:Release of the Single Expert Report 1.Pursuant to Part 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, copies of the report by [Dr D], Consultant Psychiatrist dated 4 July 2024 may be given too [sic]: (a)the parties; (b)the lawyers for the parties;(c)the lawyer representing the children in the proceedings under s 68L of the Family Law Act 1975; (d)if a party is legally aided, to employees of the legal aid body providing financial assistance to the party, but only upon a request from an employee of the legal aid body, for a copy of the report. (e)An authority established by or under a law of a State or Territory for the purposes including the provision of legal assistance; (f)a Children’s Court (however described) of a State or Territory; (g)a prescribed child welfare authority; and (h)the convenor of any legal dispute resolution conference. 2.Except with the Court's permission, no person is to release the report, or provide access to the report, to any person other than those mentioned in paragraphs (a), (b), (c), (d), (e), (f), (g) and (h) of the previous order.THE COURT NOTES THAT:A.At the date on which a copy of the Single Expert Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or, if admitted, would only form one part of the evidence in the proceedings.B.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Thus, it will become apparent that in order to achieve that which he seeks, not only did the appellant require release from the implied undertaking, but he also required the permission of the Court pursuant to Order 2 of the orders made on 5 July 2024.PRIMARY JUDGMENT The primary judge recorded that the appellant’s case was that there were factual assertions in the Crown’s case that “are inconsistent or do not stand with the opinions of the single expert” and that the report recorded statements allegedly made by the respondent and her mother to that expert for the purposes of the preparation of the report (Reasons at [20]). In an affidavit filed on 21 August 2024 in support of the appellant’s application, his solicitor in the parenting proceedings, who also acts for him in the criminal proceedings, set out in tabular form what she understood to be the factual issues relevant to the Crown’s case in the District Court proceedings and the corresponding paragraphs of the report which record statements made by the respondent or her mother relating to, or concerning, each of those issues, as follows: At first instance, the appellant submitted that:·there is a real possibility that the redacted report may contribute to the proper administration of justice in his criminal proceedings;·there is significant commonality of core issues between the pending criminal proceedings and the contents of the report in the pending parenting proceedings; and·there was no expectation of privacy when speaking to the single expert who authored the report. The respondent submitted that:·there was no evidence that the release of the report for the purpose of the criminal proceedings may contribute to the administration of justice in the appellant's criminal proceedings;·there was no evidence as to how the report might be used in the criminal proceedings or as to the appellant's intention to call the single expert to give evidence;·the material contained in the table prepared by the appellant's solicitor summarising the factual assertions in the Crown's case said to be inconsistent with statements made to, and opinions proffered by, the single expert, could only be relevant if the expert were to be called to give evidence on behalf of the appellant;·the purported, implicitly inconsistent, conversations between the respondent and the single expert were unlikely to be relevant or pertinent in the criminal proceedings; and·as a matter of practicality, in the event the single expert was to give evidence on behalf of the appellant in the criminal proceedings, it would be inappropriate for him to continue as the single expert in the parenting proceedings. The primary judge held at [24] that the appellant had not discharged his onus to establish that he and, by extension, his legal advisors should be released from the undertaking, as well as “the restrictions on the use of the report” pursuant to unspecified provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), because:[a]No evidence was provided by the [appellant] to demonstrate that the expert is on notice as to the application for leave. The expert’s report records knowledge of the rules restricting the use of the contents of the report. The expert’s report considers and records the contents of a raft of other documents, including documents produced on subpoena originating from sensitive sources including the Police and the Department of Communities and Justice. The expert interviewed various third parties including the children’s principal and school counsellor and the [respondent’s] domestic violence counsellor. [b]The [appellant] has not established how an untested hearsay opinion based from material that would not appear to be adduced in the criminal proceedings (and grounded from exchanges from people that may not give evidence in the criminal proceedings) will likely contribute to achieving justice. [c]The [appellant] has not established how untested alleged conversations that are potentially hearsay and given with the assistance of an interpreter will likely contribute to achieving justice. There is no evidence that the [appellant] proposes to call the single expert as a witness in the criminal proceedings. [d]The [appellant] has not engaged in any meaningful manner with the best interests of the children, both of whom were interviewed for the purposes of the report. There is no evidence as to how the release of this report to be used in the [appellant’s] criminal proceedings will impact on the children. I accept the [respondent’s] submissions that in the event the single expert were to give evidence in the [appellant’s] defence in the criminal proceedings it would be inappropriate for him to continue as the single expert in these proceedings. This would cause significant delay in the parenting proceedings and the children’s involvement in the preparation of a second expert report. This is not in their best interests.LEGAL PRINCIPLES AND LEGISLATIVE PROVISIONS

Ratio Decidendi

Legal Principle Established

In Commissioner of Police (NSW) & Bowers [2022] FedCFamC1F 526 at [27], Aldridge J said:In short, the affidavits deal with matters that are relevant to the criminal trials. They are made by a person who is the subject of that transaction, and the affidavits have, at least, the potential to be important to the proper determination of that case and the administration of justice. Accordingly, I propose to grant leave as sought in relation to the affidavits as redacted.(Emphasis added) In Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [33], the Full Court of the Federal Court said:… Whilst it cannot be said categorically that any particular end of justice will be furthered by the use of the … affidavit in the Supreme Court proceedings, it seems to us appropriate that, to the extent that it deals with issues relevant to the resolution of the controversy in the Supreme Court, the Supreme Court should have available to it relevant material, including such an affidavit, sworn in an earlier proceeding, which may illuminate matters in the Supreme Court.(Emphasis added) In the circumstances, we agree that, in considering whether there is a real possibility that the report may contribute to the administration of justice in the appellant’s criminal proceedings, something less than a probability is required. By way of analogy, in Alister v The Queen (1984) 154 CLR 404, where public interest immunity was raised in objection to production of documents pursuant to a subpoena, Gibbs CJ said at 414:… Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere “fishing” expedition can never be allowed, it may be enough that it appears to be “on the cards” that the documents will materially assist the defence…(Footnotes omitted) The appellant submits and, in the circumstances, we agree that this is, in turn, a reflection of the fact that the “special circumstances” an applicant must demonstrate to be released from the implied undertaking need only be such as to be “sufficient” to justify a departure from the implied undertaking; there is no additional requirement that they be “cogent and persuasive”. See Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578-579, where Burchett J, referring inter alia to the decision of the Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 187, concluded that:… the court’s duty, in an applicant [sic] of this kind, is to consider whether the applicant has shown some circumstance which takes the matter out of the ordinary course, according to which production of documents … involves the implied undertaking to the court; and, if so, whether an exercise of the court’s discretion in favour of the application be in the interests of justice.…