Littlefield & Pemble

Case [2023] FedCFamC1A 198

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Littlefield & Pemble [2023] FedCFamC1A 198

Appeal from: Littlefield & Pemble (No 2) [2023] FedCFamC1F 793
Appeal number(s): NAA 284 of 2023
File number(s): HBC 275 of 2017
Judgment of: TREE, CHRISTIE & STRUM JJ
Date of judgment: 17 November 2023
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the father seeks leave to appeal an order dismissing his application to release single expert reports for use in criminal proceedings – Implied Undertaking – Whether the primary judge erred by failing to apply correct legal principles – Discussion of legal principles applicable to release of single expert reports – Where the enquiry as to whether the single expert reports are within the scope of the implied undertaking is whether the circumstances under which the father obtained them mean that he cannot disclose them without leave of the court – Where no question of “privilege” nor s 121 of the Family Law Act 1975 (Cth) is applicable – Where appeal has merit – Substantial injustice – Leave to appeal granted – Appeal allowed – Discretion re-exercised – Leave given to release single expert reports – Costs certificates issued.
Legislation:

Family Law Act 1975 (Cth) s 121

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Family Law Rules 2004 (Cth) (repealed) rr 15.04, 15.45, 15.46, 15.49

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

Bhatnagar & Riju [2018] FamCAFC 144

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

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

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Pace & Halkias [2021] FamCAFC 81

Re W: Publication Application (1997) FLC 92-756; [1997] FamCA 8

Sahadi & Savva (2016) FLC 93-704; [2016] FamCAFC 65

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720
Number of paragraphs: 49
Date of hearing: 9 November 2023
Place: Melbourne (via video link)
Counsel for the Appellant: Ms Seric
Solicitor for the Appellant: Butler McIntyre & Butler
The Respondent: Self-represented litigant
Counsel for the Independent Children’s Lawyer: Ms Mallett KC
Solicitor for the Independent Children’s Lawyer: Pagett & Associates

ORDERS

NAA 284 of 2023
HBC 275 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR LITTLEFIELD

Appellant
AND:

MS PEMBLE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

TREE, CHRISTIE & STRUM JJ

DATE OF ORDER:

9 NOVEMBER 2023

ON 9 NOVEMBER 2023 THE COURT ORDERED THAT:

1.Leave to appeal the order of a judge of the Federal Circuit and Family Court of Australia (Division 1) made 15 September 2023 is granted.

2.The appeal is allowed.

3.Order 2 of the orders of the Federal Circuit and Family Court of Australia (Division 1) made 15 September 2023 is set aside.

4.The appellant is released from the Harman Undertaking for the purposes of his…

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AGLC
Littlefield & Pemble [2023] FedCFamC1A 198
Case
[2023] FedCFamC1A 198
Decision Date

CaseChat Overview and Summary

The case of Littlefield & Pemble involved a dispute in family law, where the father sought leave to appeal an order that dismissed his application to release single expert reports for use in criminal proceedings. The case was heard in the Federal Circuit and Family Court of Australia. The primary judge had dismissed the father's application to release the expert reports, which were obtained in the context of ongoing parenting proceedings where the father was charged with offences related to the child. The father's application sought to use these reports in his criminal trial.

The legal issues before the court were whether the primary judge erred in failing to apply the correct legal principles regarding the implied undertaking and privilege in relation to the single expert reports. The father argued that the reports should be released to the magistrate to determine their relevance and admissibility, contrary to the primary judge's findings. The court had to decide whether the primary judge's decision was attended by sufficient doubt and whether refusing leave to appeal would result in substantial injustice.

The court found that the primary judge's rejection of the implied undertaking was misconceived, and the test applied was erroneous. The court held that both single expert reports relied on material obtained through subpoena, which itself was subject to an implied undertaking. Additionally, the court concluded that there was no question of privilege under the Family Law Act 1975 (Cth) or relevance and probity issues that should be determined by the family law court before the reports could be released. Given the likely error by the primary judge and the substantial injustice that would result if leave to appeal were not granted, the court granted leave to appeal and allowed the appeal. The father was released from the Harman Undertaking for the purposes of his criminal trial and permitted to use the expert reports in those proceedings.

The court's final orders included granting leave to appeal, setting aside the primary judge's orders, releasing the father from the Harman Undertaking for the purposes of his criminal trial, and permitting him to use the expert reports in those proceedings. Costs certificates were also issued to both the appellant and the Independent Children's Lawyer.

Orders

Orders of the court

NAA 284 of 2023

HBC 275 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR LITTLEFIELD

Appellant

AND:

MS PEMBLE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

TREE, CHRISTIE & STRUM JJ

DATE OF ORDER:

9 NOVEMBER 2023

ON 9 NOVEMBER 2023 THE COURT ORDERED THAT:

1. Leave to appeal the order of a judge of the Federal Circuit and Family Court of Australia (Division 1) made 15 September 2023 is granted.

2. The appeal is allowed.

3. Order 2 of the orders of the Federal Circuit and Family Court of Australia (Division 1) made 15 September 2023 is set aside.

4. The appellant is released from the Harman Undertaking for the purposes of his criminal trial only, next listed on […] (“the criminal proceedings”) in respect of the following documents:

(a) The Report of Dr F dated 21 September 2021;

(b) The Report of Dr E dated 22 December 2020;

and for the purposes of this Order, the appellant is permitted to provide these documents to his criminal lawyers and/or to tender the documents in the criminal proceedings.

5. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 the costs incurred by him in the appeal.

6. The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by her in 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

On 9 November 2023 we made orders in accordance with the parties’ agreed position, for reasons to be published later. These are those reasons.BACKGROUND The parenting proceedings are listed for a five day trial before the primary judge commencing in December 2023. A significant issue in them is whether the father poses an unacceptable risk of sexual harm to the parties’ now nearly 8 year old child. In the pending criminal proceedings in the Magistrates Court of Tasmania, the father is charged with offences in relation to the child. The hearing of the criminal proceedings commenced in August 2023 but was adjourned part heard to enable the father’s application to the primary judge in relation to the single expert reports, and is next listed in November 2023. On 11 September 2023, the father filed the subject application which sought that he be granted permission to rely on and produce in the Magistrates Court of Tasmania proceedings the following documents:(a)The single expert report of Dr E dated 22 December 2020;(b)The single expert report of Dr F dated 21 September 2021; and(c)Orders made by the Federal Circuit and Family Court of Australia (Division 1) dated 4 October 2021. The father’s application came before the primary judge on 15 September 2023. Orders were then made granting him leave to produce the 4 October 2021 interim parenting orders, but his application seeking to produce the single expert reports was dismissed. The father sought leave to appeal from that dismissal.LEAVE TO APPEAL Whilst s 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) imposes the requirement for leave to appeal an interlocutory order, it does not set out the requirements to be met for a grant of such leave, and thus the Court’s discretion to grant leave remains unfettered. The test adopted in this Court, which was confirmed in Medlow & Medlow (2016) FLC 93-692 (“Medlow”) provides that ordinarily leave to appeal will only be granted where:(a)The decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and(b)If leave were refused, a “substantial injustice” would ensue. It is therefore convenient to consider the merit of the grounds of the proposed appeal before returning to the question of whether leave should be granted. Even though the appeal was conceded by the mother and the ICL, we nonetheless must be satisfied of error for ourselves (Bhatnagar & Riju [2018] FamCAFC 144).The merits of the proposed appealThe grounds The four grounds articulated in the father’s Amended Notice of Appeal filed 27 October 2023 are as follows:1.His Honour erred by failing to apply correct legal principle, by finding that the Harman Undertaking was not “relevant” to the [father’s] Application in a Proceeding filed 11 September 2023.2.His Honour erred by applying erroneous principles, in concluding finding that privilege and/or s 121 of the Family Law Act 1975 (cth) were applicable principles in respect of the [father’s] Application in a Proceeding filed 11 September 2023.3.His Honour erred by applying erroneous principles, in concluding that it is for the Family Law Court to determine relevance and probity before the single expert reports could be released.4.His Honour erred by applying erroneous principles, in concluding that there was no “legitimate forensic purpose” argued in respect of the release of the reports.(As per the original)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Finally, in determining whether or not to give leave to use the material subject to the implied undertaking in other proceedings, the court ought not embark upon a consideration of its admissibility in the other court, or the purpose to which it may be put, as that is properly a matter for the other court (Sahadi at [69]).Consideration At [8]–[10] the primary judge said as follows:8.The relevant reports are prepared and provided for family law proceedings between the parties. Those proceedings remain ongoing. I understand that there exists a protocol for exercise of a discretion in judges of these courts to release such reports on occasion and if appropriate. I have determined that this is not one of those occasions and that the reports should not be released thereby maintaining their privilege pursuant to the Family Law Act 1975 (Cth) (“the Act”) including consideration of section 121 of the Act.9.Counsel for the applicant father argued that the report should be released to the relevant Magistrate with that Magistrate then being empowered to determine relevance and hence admission of the contents of the report. I disagree. The report is obtained in sensitive parenting matters by this Court for the purposes of assisting this Court's determination. I am of the view that, prima facie, it is for this Court firstly to determine issues of relevance and probity before such a report can be released with the discretion sitting with this Court.10.Counsel for the applicant father briefly mentioned issues of the ‘Harman’ undertaking. I am not persuaded that this consideration is relevant where the documents in question are not obtained by discovery or subpoena or under any compulsion but rather is an issue for the discretion of the Court. As we have observed, the primary question is whether the circumstances under which the father obtained the single expert reports mean that, either by virtue of the orders releasing them to him, or because they are subject to an implied undertaking, he cannot disclose them without leave. The primary judge’s rejection of the implied undertaking in [10] was misconceived. At the very least, as we have explained, both single expert reports relied on material which had been produced pursuant to subpoena, and hence itself subject to an implied undertaking. Further, no question of “privilege” applied, nor did s 121. It is therefore plain that the test which the primary judge applied was erroneous. The appeal therefore has merit, and Grounds 1 and 2 would necessarily both succeed. It is unnecessary to consider Grounds 3 and 4.Substantial injustice Having shown likely error by the primary judge, such that the first limb of Medlow is satisfied, the question then is whether substantial injustice would result if leave to appeal were not granted. As to that, the father says that the injustice is the lost opportunity to have the discretion to grant leave to use the documents in his criminal proceedings properly considered. We accept that is indeed a substantial injustice. Outcome