Littlefield & Pemble (No 2)
[2023] FedCFamC1F 793
•25 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Littlefield & Pemble (No 2) [2023] FedCFamC1F 793
File number(s): HBC 275 of 2017 Judgment of: MCGUIRE J Date of judgment: 25 September 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Release and use of single expert reports and consent orders – Where the father seeks leave to rely on and produce the reports and orders in a state Magistrates Court – Orders released – Application otherwise dismissed Legislation: Family Law Act 1975 (Cth) s 121 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 15 September 2023 Place: Melbourne Counsel for the Applicant: Ms Dwyer Solicitor for the Applicant: Butler McIntyre & Butler Counsel for the Respondent: Ms Hughes Solicitor for the Respondent: PWB Lawyers Counsel for the Independent Children's Lawyer: Mrs Ryan Solicitor for the Independent Children's Lawyer: Pagett & Associates ORDERS
HBC 275 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LITTLEFIELD
Applicant
AND: MS PEMBLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
15 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The orders of the Federal Circuit & Family Court of Australia made 4 October 2021 be released to the parties with leave to tender in extant State Magistrates Court proceedings concerning allegations of offences in respect of the father Mr Littlefield.
2.The application filed 11 September 2023 by the father is otherwise dismissed.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Littlefield & Pemble been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATION
This matter was heard on 15 September 2023 and orders were given ex tempore with short reasons. Counsel for the father indicated no requirement for further or detailed reasons. Later contact with chambers expressed otherwise.
The discrete interlocutory application before me is one on behalf of the father, Mr Littlefield, for the release of the Single Expert Reports of Dr E and Dr F released in Family Court proceedings on 15 January 2021 and 27 September 2021 respectively.
There are extant proceedings between the parties in respect of parenting issues with the matter listed for trial on 18 December 2023 with an estimated hearing time of five days.
The application is supported by an affidavit of Mr Littlefield sworn 8 September 2023.
The application is opposed by the mother who initially sought an adjournment of the application and opposed in relevant detail by the Independent Children's Lawyer. The parties do consent, however, to the part of the application which proposes the release of court orders of 4 October 2021 in respect of parenting proceedings between the parties be released.
The father has been charged with offences in respect of the relevant child. He has entered pleas of not guilty. I understand the matter to be dealt with by a state Magistrates Court.
The thrust of the application, as I understand, sits on two interconnected bases being:
(1)That the authors of the reports (or at least one of them) apparently states doubts as to the veracity of the allegations against the father;
(2)That there may be some ambiguity or similar in respect of the mother’s statements in respect of these issues made to the authors of the reports.
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.
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.
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.
CONSIDERATION
I consider this matter to be an exercise of judicial discretion and where there is an onus on the applicant to show circumstances such that it would be proper for the report to be released.
I am not persuaded on the evidence before me, or upon the submissions of the father’s Counsel, that it is intended that the contents of the report be released for any forensic basis. Rather, it is clear from the submissions that the father relies on the conclusions reached by the authors of the reports that may cast doubt on the veracity of the allegations against him. If I am correct in this conclusion then it would, in my view, be entirely improper for the report to be released to the learned Magistrate. That is, where no forensic exercises are argued, the conclusions of a layperson as to 'guilt' or 'innocence' is entirely irrelevant where the task of the learned Magistrate is to make findings of fact on evidence properly given or adduced and to a standard of proof of ‘beyond reasonable doubt’. To put it simply, the opinion of a layperson does not, and should not, hold any sway or probity in the judicial exercise towards guilt or innocence.
Should the reports be released and relied upon then there is an obvious possibility that the authors of those reports could be subject to cross-examination where those authors were commissioned to conduct interviews, make assessments, and offer opinions within the confines of the family law system where the enquiry here is broadly as to the children's best interests with findings of fact on the balance of probabilities as against the criminal jurisdiction of a finding of guilt on the standard of beyond reasonable doubt. Put simply, the enquiry here is a far broader one than that in the criminal court and which again impacts on the relevance and probity of the use of opinion evidence, expert as it may be, in that criminal jurisdiction.
In summary, therefore, where there is no ‘legitimate forensic purpose’ argued in respect of the release of the reports then I exercise my discretion against such release. The application will be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 25 September 2023
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