Kuang & Kuang
[2024] FedCFamC2F 1191
•29 August 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
By way of his Further Amended Application filed on 21 August 2024 the father seeks orders as particularised in his Outline of Case document that he and his legal advisors be released from the implied undertaking to the court given under the principle in Harman v Secretary of State for the Home Department [1983] 1 AC 280 such that leave be granted to:-
·Use the redated Single Expert Report of Dr D dated 4 July 2024 (“the redacted Family Report”) in and for the purpose of defending the criminal charges for which the father is facing trial in the District Court and any superior court to which the proceedings may be referred;
·To provide the redacted Family Report to the father’s counsel and any practitioner appearing on behalf of the father in the criminal proceedings; and
·To provide a copy of the redacted Family Report to the Director of Public Prosecutions and New South Wales Police for the purposes of any criminal proceeding as set out above.
The mother opposes the relief sought by the father. The attendance of the Independent Children’s Lawyer today was excused and there was no appearance by her today.
In support of his application the father relies upon:
·the Further Amended Application in a Proceeding filed 21 August 2024;
·the Affidavit of the father’s Solicitor; Ms Judith Swan filed 21 August 2024;
·the Affidavit of Dr D annexing a redacted version of the Family Report dated 4 July 2024 but filed 29 July 2024;
·Annexure MRK1 and MRK2 of the Affidavit of Ms Judith Swan marked as exhibits MRK1 and MRK2 respectively;
·Paragraphs 61 and 62 of the mother’s affidavit filed in these proceedings on 4 August 2023;
·The answers to questions 20 and 35 of the Mother’s Notice of Risk filed 4 August 2023; and
·The father’s Outline of Case Document (Interim Hearing) filed 26 August 2024.
The mother did not rely upon any documents for the purposes of the hearing today.
I have further read the Amended Application in the substantive proceedings filed by the father on 30 June 2024 and the Response filed by the mother on 4 August 2023.
BACKGROUND
The substantive proceedings in this court are parenting proceedings relating to the parties’ two children who are 9 and 4 years of age. The paternal grandparents were joined as parties to the proceedings by consent on 25 January 2024.
The mother is the uncontested resident parent. The issue for determination is what time, if any, the children will spend with the father. The father seeks orders that the children spend time with him alternate weekends and half school holidays. The mother seeks orders that the children spend no time and have no communication with the father. The matter is next listed for an adjourned Compliance and Readiness Hearing on 23 October 2024.
Orders were made on 8 February 2024 appointing Dr D as the single expert in the matter to inquire into and report upon matters pertaining to the welfare of the children. The report is not a Family Report, but rather a single expert report prepared by an assessing psychiatrist.
Further orders were made with respect to the preparation of this report on 16 May 2024 including that the legal representative for the father and paternal grandparents and the Independent Children’s Lawyer file an undertaking to not disclose to the father or the paternal 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 mother. The report was released to the parties on 5 July 2024.
The solicitor for the father deposes that she acts for the father in criminal proceedings listed for final hearing in the District Court commencing late 2024. The father has been charged with multiple offences. The mother in these proceedings is the alleged victim with respect to all charges.
PRINCIPLES AND LEGISLATIVE PROVISIONS
The leave to which the application refers, being the Harman obligation or “implied undertaking” was described by the High Court in Hearne v Street (2008) 235 CLR 125 (“Hearne”) as follows:
96.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. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. ...
97.It is common to speak of the relevant obligation as flowing from an “implied undertaking.”
(Footnotes omitted)
The obligation extends to all persons who receive material knowing that it was generated in legal proceedings (at [103] and [109]). Release from the obligation may be granted where special circumstances exist (at [107]). The obligation extends to witness statements filed pursuant to judicial directions and to affidavits.
As the implied undertaking arises in the context of litigation and is given to the Court, then it is only the Court that may release a party from the undertaking (Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576).
A useful analysis of the jurisprudence is found in the decision of Justice Schonell in Chakora v Bhander [2023] FedCFamC1F 127 (“Chakora”) where his Honour stated:-
[8]The purpose of the implied undertaking has variously been described as protecting privacy, preserving confidentiality and to encourage full and frank disclosure in the knowledge that such production will be protected.
[9]The obligation extends to all Australian courts and tribunals as well as arbitration proceedings. It binds not just parties but their solicitors and counsel and third parties including experts who are in receipt of documents generated or produced by the litigation. It is not just limited to documents but covers information.
[10]As the implied undertaking arises in the context of litigation and is given to the Court, then it is only the Court that may release a party from the undertaking (Holpit Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576)
His Honour continued:
[13]In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (“Springfield Nominees”), Wilcox J said at 225:
… For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[14] His Honour did not import words of limitation to the discretion. It is clear that the discretion is appropriately wide to fit the circumstances of each particular scenario.
This decision echoes the same principles as enunciated by the Full Court and referred to by both parties today of Littlefield & Pemble [2023] FedCFamC1A 198, that the pre-eminent consideration is whether there is a real possibility that the expert reports may contribute to the administration of justice in the father’s criminal proceedings.
As was explained in Hearne, the general law obligation may be buttressed by rules of the court (at [98]).
Relevantly for this application Rule 7.05(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that:
The court may, in relation to the appointment of, instruction of, or conduct of a proceeding involving, a single expert witness make an order, including an order
…..
(h) that a report not be released to a person or that access to the report be restricted.
The orders made on 5 July 2024 releasing the report 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:
(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.
Although not a parenting order, a decision to grant leave for the use of documents produced in a parenting proceeding, especially an expert’s report, should consider the best interests of the children (Sahadi & Savva and Anor (2016) FLC 93-704).
THE APPLICANT’S CASE
The onus of establishing his case rests with the applicant father. The solicitor for the father also acts for the father in the criminal proceedings. The father elected not to adduce the Crown brief into evidence to support his application. He relied upon his solicitor’s affidavit recording, and illustrated in a table format, what she understands to be the factual assertions in the Crown case that are inconsistent or do not stand with the opinions of the single expert and “recorded statements” allegedly made by the mother and maternal grandmother to the expert for the purposes of the preparation of the report.
The solicitor deposes that if he is found guilty of such charges the father faces the possibility of being sentenced to a period of incarceration.
The father submits that:-
·There is a real possibility that the redacted Family Report may contribute to the proper administration of justice in the father’s criminal proceedings.
·There is a significant commonality of core issues between the pending criminal proceedings and the contents of the redacted Family Report such that there is the same sub-stratum of facts in the criminal proceedings and these proceedings.
·There was no expectation of privacy when the parties spoke to the author of the report.
The mother submits that:-
·There is no evidence that the release of the report for the purpose of the criminal proceedings may contribute to the administration of justice in the father’s criminal proceedings.
·There is no evidence as to how the report may be used in the criminal proceedings, and There is no evidence as to the father’s intention to call the single expert to give evidence.
·The material contained in the table sworn by the father’s solicitor that relate to observations and opinions could only be relevant if the single expert were to be called to give evidence on behalf of the father.
·The purported conversations between the mother and the single expert are unlikely to be relevant or pertinent in the criminal proceedings.
·On a practical basis, in the event the single expert were to give evidence on behalf of the father in the criminal proceedings, it would be inappropriate for him to continue as the single expert in these proceedings.
DISPOSITION
I am not satisfied the father has discharged his onus to establish that he and his legal advisors should be released from the “Harman Undertaking” and the restrictions on the use of the single expert report pursuant to the Rules of this Court because:
·No evidence was provided by the father 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 mother’s domestic violence counsellor.
·The father 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.
·The father 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 father proposes to call the single expert as a witness in the criminal proceedings.
·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. There is no evidence as to how the release of this report to be used in the father’s criminal proceedings will impact on the children. I accept the mother’s submissions that in the event the single expert were to give evidence in the father’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.
CONCLUSION
For these reasons the father has not established special circumstances to warrant being released from his implied undertaking and compliance with the legislative framework or to vary existing orders as to non-publication and accordingly his application will be dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Murdoch. Associate:
Dated: 29 August 2024
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