Kuang & Kuang - [2024] FedCFamC2F 1191

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kuang & Kuang [2024] FedCFamC2F 1191

File number(s): PAC 2628 of 2023

Judgment of: JUDGE MURDOCH

Date of judgment: 29 August 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking - where the applicant father and his legal representative sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – where the mother opposed such release – where the father seeks to use a Single Expert report prepared for the purpose of these proceedings in aid of his defence in criminal proceedings where he is facing serious criminal charges – where no evidence as to putting the Expert on notice for the application for leave is provided – where the father has not established how an untested hearsay opinion would contribute to achieving justice – where the father 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 – where the is no evidence as to how the report’s release may impact the children – where the Court is not satisfied that special circumstances exist – Application dismissed.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 7.05(h)

Cases cited:
Chakora v Bhander [2023] FedCFamC1F 127

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

Hearne v Street (2008) 235 CLR 125

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

Littlefield & Pemble [2023] FedCFamC1A 198

Sahadi & Savva and Anor (2016) FLC 93-704

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Division: Division 2 Family Law

Number of paragraphs: 25

Date of last submission/s: 29 August 2024

Date of hearing: 29 August 2024

Place: Sydney

Solicitor for the Applicant: Ms Swan of Swan Lawyers

Counsel for the First Respondent: Ms Hayward

Solicitor for the First Respondent: Legal Aid NSW

Solicitor for the Second and Third Respondents: Ms Swan of Swan Lawyers

Solicitor for the Independent Children's Lawyer: Christina Lam & Associates, excused from appearing
ORDERS

PAC 2628 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KUANG

Applicant

AND:
MS KUANG

First Respondent

MS B KUANG

Second Respondent

MR C KUANG

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

29 AUGUST 2024

THE COURT ORDERS THAT:
1.Save as to the question of costs, the Application in a Proceeding filed by the Father on 7 August 2024 and amended on 21 August 2024 is dismissed.
2.Each party’s costs are reserved for a period of 28 days.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kuang & Kuang

Details

AGLC: Kuang & Kuang [2024] FedCFamC2F 1191
Case: [2024] FedCFamC2F 1191
Decision Date: 29 August 2024

CaseChat Overview and Summary

In the matter of Kuang and Kuang, the applicant, Mr Kuang, sought to be released from a Harman undertaking in respect of material filed in proceedings before the Federal Circuit and Family Court of Australia. Ms Kuang, the first respondent, opposed the application. Mr Kuang intended to use a Single Expert report prepared for the family law proceedings to aid his defence in criminal proceedings where he faces serious criminal charges. The court had to determine whether the special circumstances necessary to permit the release of the Harman undertaking existed.

The court found that Mr Kuang had not provided any evidence that the expert had been put on notice for the application for leave to use the report. The court noted that Mr Kuang had not established how an untested hearsay opinion would contribute to achieving justice. Furthermore, he had not engaged in any meaningful manner with the best interests of the children, both of whom were interviewed for the purposes of the report. The court was also unconvinced that there was any evidence as to how the release of the report may impact the children. Consequently, the court concluded that there were no special circumstances justifying the release of the Harman undertaking.

The court dismissed Mr Kuang’s application, reserving each party’s costs for a period of 28 days. The form of the order is subject to the entry in the Court’s records. This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

PAC 2628 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR KUANG

Applicant

AND:

MS KUANG

First Respondent

MS B KUANG

Second Respondent

MR C KUANG

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

29 AUGUST 2024

THE COURT ORDERS THAT:

1. Save as to the question of costs, the Application in a Proceeding filed by the Father on 7 August 2024 and amended on 21 August 2024 is dismissed.

2. Each party’s costs are reserved for a period of 28 days.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 2628 of 2023
Judgment of:	JUDGE MURDOCH
Date of judgment:	29 August 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Harman Undertaking - where the applicant father and his legal representative sought to be released from the Harman undertaking in respect of material filed in proceedings before this Court – where the mother opposed such release – where the father seeks to use a Single Expert report prepared for the purpose of these proceedings in aid of his defence in criminal proceedings where he is facing serious criminal charges – where no evidence as to putting the Expert on notice for the application for leave is provided – where the father has not established how an untested hearsay opinion would contribute to achieving justice – where the father 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 – where the is no evidence as to how the report’s release may impact the children – where the Court is not satisfied that special circumstances exist – Application dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 7.05(h)
Cases cited:	Chakora v Bhander [2023] FedCFamC1F 127 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 Littlefield & Pemble [2023] FedCFamC1A 198 Sahadi & Savva and Anor (2016) FLC 93-704 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Division:	Division 2 Family Law
Number of paragraphs:	25
Date of last submission/s:	29 August 2024
Date of hearing:	29 August 2024
Place:	Sydney
Solicitor for the Applicant:	Ms Swan of Swan Lawyers
Counsel for the First Respondent:	Ms Hayward
Solicitor for the First Respondent:	Legal Aid NSW
Solicitor for the Second and Third Respondents:	Ms Swan of Swan Lawyers
Solicitor for the Independent Children's Lawyer:	Christina Lam & Associates, excused from appearing

PAC 2628 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR KUANG Applicant
AND:	MS KUANG First Respondent MS B KUANG Second Respondent MR C KUANG Third Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	29 AUGUST 2024