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 Regulations 2022 (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] VSCA 12
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Project Sea Dragon Pty Ltd (Subject to a Deed of Company Arrangement) v Canstruct Pty Ltd (2024) FCR 465; [2024] FCAFC 141
Saha & Lahiri (No 3) (2023) 67 Fam LR 217; [2023] FedCFamC1A 144
Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65
Sanders & Sanders [2022] FedCFamC1A 185
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 
Steven Moore (a pseudonym) v The King (2024) 419 ALR 169; [2024] HCA 30
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9	
		
Number of paragraphs:	95	
		
Date of hearing:	6 February 2025 	
		
Place:	Sydney	
		
Counsel for the Appellant:	Ms Kumar	
		
Solicitor for the Appellant:	Swan Lawyers	
		
Counsel for the Respondent:	Mr Othen SC	
		
Solicitor for the Respondent:	Legal Aid NSW	
		
Independent Children's Lawyer:	Christina Lam & Associates (submitting notice filed)	

ORDERS
	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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kuang & Kuang has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
HARPER AND STRUM JJ:
1	By Notice of Appeal filed 26 September 2024, the appellant father seeks leave to appeal and, if granted, to appeal from an interlocutory order made on 29 August 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) in pending parenting proceedings between the respondent and him. 
2	The orders of 29 August 2024 dismissed the appellant’s application to be released from his implied undertaking to the Court, in accordance with the principle established in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and affirmed in Hearne v Street (2008) 235 CLR 125, in respect of the report of a single expert, as redacted, (“the report”) prepared pursuant to an interlocutory order made in the parenting proceedings.
3	The appellant sought, and continues to seek, to use the report in, and for the purposes of defending criminal charges for which he is standing trial in District Court of New South Wales proceedings and any appeal therefrom or proceedings relating thereto, including providing the report to his counsel, the Director of Public Prosecutions of New South Wales and the New South Wales Police.
4	Insofar as the application for leave to appeal is concerned, as the Full Court held in Sahadi & Savva and Anor (2016) FLC 93-704 at [33]–[34], the appellant accepts that leave is required. We agree this is correct because the decision of the primary judge could be modified or varied in appropriate circumstances and is interlocutory (Lasso & Malaka (2022) 65 Fam LR 423 at [17]; s 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”), and reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)). The applicable test to determine whether leave should be granted is a conjunctive one, namely, “whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether a substantial injustice would result if leave were refused, supposing the decision to be wrong” (emphasis in original) (see Medlow & Medlow (2016) FLC 93-692 at [55]–[57]). In order to determine whether the decision is attended by sufficient doubt so as to warrant its reconsideration, it is necessary to consider the merits of the appeal by reference to the grounds relied upon. See Saha & Lahiri (No 3) (2023) 67 Fam LR 217 at [101]–[102].
5	By an Application in an Appeal taken to have been filed on 16 January 2025, the appellant also seeks to adduce evidence of the consent of the single expert who prepared the report to it being used as sought by him. It is convenient to deal with that application in our consideration of the ground of appeal to which the proposed evidence relates, being Ground 1(c)(ii). See Sanders & Sanders [2022] FedCFamC1A 185 at [15]. That is because although, in determining the appeal, the Court must have regard to the evidence given in the proceedings out of which the appeal arose, it nevertheless has the power, in its discretion, to receive further evidence. The purpose of the power to receive further evidence – which is remedial in nature and which exists to serve the interests of justice – is to ensure that the proceedings do not result in a miscarriage of justice. The power enables the Court to admit further evidence if satisfied that such evidence, if accepted, would demonstrate that the orders the subject of the appeal are erroneous and that a different result would have ensued if the evidence sought to be relied upon at the hearing of the appeal had been available at the hearing at first instance. See Dambrose & Pacetti [2023] FedCFamC1A 206 at [4]; Diamond & Diamond [2024] FedCFamC1A 201 at [20].
6	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
7	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. 
8	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.
9	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]).
10	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.
11	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.
12	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
13	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]).
14	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:
Factual issues in the District Court Proceedings	Paragraph of the single expert's report	
The Crown alleges that there were multiple instances of ongoing sexual and common assault during the relationship.	[239.2] “the psychological presentation of the [respondent] is not consistent with that of a victim of chronic domestic violence of the level and duration that she described.”	
The Crown makes factually detailed allegations in relation to a sexual assault in [early] 2023.	[239.3] “the [respondent’s] answers in relation to sexual violence were ‘vague.’”	
The Crown’s case includes no reference to biological material or physical evidence.	[239.4] “The Police seized clothing and bedding.”	
The Crown alleges that the [respondent] told [Mr E] that the maternal grandmother knew of the alleged violence. The maternal grandmother is not a witness in the Crown’s case.	[46] and [239.7] “The [respondent] says she regretted not telling her mother about the violence. The maternal grandmother told the single expert that the [respondent] had told her about the violence.”	
The Crown’s case is that [Mr E] (a male) advised the [respondent] of support services.	[239.8] “The [respondent] says she discussed the violence with an older ‘Italian woman’ who gave her the contact information regarding domestic violence and that there were no men involved.”	
The Crown’s case includes allegations made by the [respondent] [in early] 2023 that, “In the last few months my physical health has been declining because of all the stress I have been through. The verbal and emotional abuse was constant in the relationship.”	The redacted [F]amily [R]eport details the [respondent’s] clinical presentation at [126]–[140]. The [respondent] had seen a counsellor for 16 sessions. The single expert reports that the counsellor (who he interviewed) advised the [respondent] from the outset “seemed very well” and did “not seem overwhelmed or overly stressed". The single expert notes "no psychological work was done regarding any trauma, even though the service is a trauma rehabilitation service." 
The single expert provides further opinions in relation to the [respondent’s] presentation insofar as it compares to that of a victim of chronic domestic violence in [239.2].	
(Emphasis in original)
15	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.
16	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.
17	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
18	In relation to release from the implied undertaking, the primary judge referred at [11] to Hearne v Street at [96]–[97], where the High Court said:
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)
19	The primary judge correctly acknowledged (at [12]) that:
•	the obligation extends to all persons who receive material knowing that it was generated in legal proceedings (Hearne v Street at [103] and [109]);
•	release from the obligation may be granted where special circumstances exist (Hearne v Street at [107]); and
•	the obligation extends to affidavits and witness statements filed pursuant to judicial directions.
20	Further, the primary judge correctly said that:
•	as the implied undertaking giving rise to the obligation arises in the context of litigation and is given to the Court, only the Court may release a party therefrom (at [13]); and 
•	the onus of establishing his case rested upon the appellant (at [20]).
21	The primary judge said at [14], and we agree, that a useful analysis of the jurisprudence is found in the decision of Schonell J in Chakora & Bhander [2023] FedCFamC1F 127 at [8]–[10], [13]–[14], where his Honour said:
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)
…
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.
22	We observe that, in that case, amongst the documents in respect of which Schonell J granted the applicant mother leave to provide to her criminal lawyers, the Director of Public Prosecutions and the District Court of New South Wales (as the appellant in the present case seeks), were a Child Responsive Program Memorandum and a single expert report. In those criminal proceedings, the mother was the accused and the father was the complainant; the respondent father alleged he had been assaulted by the mother and she was subsequently charged. That application was in not dissimilar circumstances to the present case; there were contested parenting proceedings, in which there were allegations of family violence by each party against the other. 
23	In relation to the Child Responsive Program Memorandum and the single expert report, Schonell J referred to, and agreed with, the decision of Carew J in Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020 at [38], where her Honour said:
As a party is generally compelled to participate in the preparation of a family report (as in the current case), the Hearne obligation limits the use of the information disclosed by a party, and the report itself (which is likely to refer to the information disclosed), to the purpose for which it was given. The provision of information by a party in those circumstances was for the purposes of the preparation of the family report for use in the proceedings and, the purpose of the report itself was for use in the proceedings. As the proceedings have concluded, leave is required to provide a copy of the family report to medical practitioners or therapists and the like.
24	The primary judge also referred (at [15]) to Littlefield & Pemble (2023) 67 Fam LR 603 at [45], where the Full Court said 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 … criminal proceedings”.
25	As was explained in Hearne v Street at [98], the primary judge acknowledged (at [16]) that the general law obligation may be buttressed by rules of court and her Honour referred (at [17]) to r 7.05(h) of the Rules which provides that “[t]he 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 … that a report not be released to a person or that access to the report be restricted”. In this context, her Honour referred to the orders made on 5 July 2024.
26	Lastly, the primary judge recognised at [19] that, 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 at [50].
27	For the reasons that follow, we consider that, whilst the primary judge correctly stated the applicable legal principles, her Honour misapplied them in the circumstances of this case and therefore fell into appellable error. This is particularly so given her Honour’s reference to, and reliance upon, the decision of Schonell J in Chakora & Bhander where, in not dissimilar circumstances, his Honour concluded that, as the accused mother sought to use the documents in criminal proceedings in which she was facing serious criminal charges, in aid of her defence, “to deny her access to these documents may have the effect of compromising her defence”, thereby constituting a special feature or special circumstances (at [27]). See also Littlefield & Pemble at [45].
Grounds of Appeal
28	If leave be granted, this is an appeal from a discretionary judgment. It is well-settled that appeals from discretionary judgments must establish the type of error identified by the High Court in House v The King (1936) 55 CLR 499 at 504–505, namely: 
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
29	The Independent Children’s Lawyer was excused from appearance at first instance and filed a Submitting Notice on 30 October 2024 in relation to the appeal.
30	The proposed grounds of appeal, as formulated in the appellant’s Notice of Appeal, apparently drawn by his solicitor, are as follows:
1.	The discretion whether to grant the leave sought by the [appellant] was not properly exercised, and the primary decision was vitiated by error, in that:
a.	The primary judge mistook the facts, in that it should have been held, but erroneously was not held, that there was a real possibility that that the Redacted Expert Report may contribute to the administration of justice in the Criminal Proceedings: cf Littlefield & Pemble (No 2) [2023] FedCFamC1F 793 at [45] and [47] [sic].
b.	The primary judge acted on the following wrong principles:
i.	The primary judge failed to act on the principle that the pre-eminent consideration that should inform the exercise of the discretion engaged by the Application is the real possibility that the Redacted Expert Report may contribute to the administration of justice in the Criminal Proceedings: Littlefield & Pemble (No 2) [2023] FedCFamC1F 793 at [45]-[47] [sic]; see also Canavan & Dowd [2023] FedCFamC1F 207 at [10]; Chakora & Bhander [2023] FedCFamC1F 127 at [27]; Tauber & Farrens [2024] FedCFamC2F 792 at [21]- [23].
ii.	In [20] of the primary decision, the primary judge held, and relied on the holding, that the [appellant] had ‘elected not to adduce the Crown brief into evidence to support his application’, when the correct position was that the Crown brief was protected by an implied undertaking to the same effect as that which applied in this Court, and was therefore not available to be put into evidence in this Court. 
iii.	In the second and third dot points in [24] of the primary decision, the primary judge relied on considerations relating to the uses to which the Redacted Expert Report could or might be put in the Criminal Proceedings, when the correct principle is that any such considerations ought not be considered: Sahadi & Savva [2016] FamCAFC 65 at [69], and Littlefield & Pemble (No 2) [2023] FedCFamC1F 793 at [37] [sic].
c.	The primary judge was guided or affected by the following irrelevant considerations:
i.	Further to Ground 1(b)(ii), it was irrelevant that the Crown brief was not in evidence before this Court. 
ii.	In the first dot point in [24] of the primary decision, the primary judge relied on the fact that there was no evidence to demonstrate that [Dr D] was on notice as to the application for leave. In this case, [Dr D’s] attitude to the Application was irrelevant, in that it was incapable of informing the proper exercise of discretion one way or the other. 
iii.	Further to Ground 1(b)(iii), all of the considerations relating to the uses to which the Redacted Expert Report could or might be put in the Criminal Proceedings on which the primary judge relied in the second and third dot points in [24] of the primary decision were irrelevant. 
iv.	In the fourth dot point in [24] of the primary decision, the primary judge relied on the fact that there was no evidence as to how the release of the Redacted Family Report to be used in the Criminal Proceedings would impact on the children. That fact was irrelevant, as no determination has yet been made by the District Court as to whether, or how, the Redacted Family Report might be used in the Criminal Proceedings.
d.	The primary judge ignored the following relevant considerations:
i.	Further to Grounds 1(a) and (b)(i), the primary judge failed to take into account as the pre-eminent consideration that there was a real possibility that that the Redacted Expert Report may contribute to the administration of justice in the Criminal Proceedings.
ii.	Further to Ground 1(c)(iv), the primary judge failed to take into account the interests of the children in their father’s defence of the Criminal Proceedings not being compromised by an inability to use the Redacted Family Report: cf Chakora & Bhander [2023] FedCFamC1F 127 at [27].
31	Clearly, the references in the grounds of appeal to Littlefield & Pemble (No 2) [2023] FedCFamC1F 793 should be to Littlefield & Pemble (2023) 67 Fam LR 603.
32	As to the proposed grounds of appeal, in the appellant’s amended Summary of Argument, they are sensibly addressed thematically, rather than individually, and we shall do likewise. 
Grounds 1(a), (b)(i), (b)(iii), (c)(iii) and (d)(i)
33	These grounds are directed to the asserted failure of the primary judge to give effect to the principle referred to by the Full Court in Littlefield & Pemble at [45] that, in determining whether or not to grant leave to use the report in the District Court proceedings, the pre-eminent consideration is whether there is a real possibility that it may contribute to the administration of justice in the appellant’s criminal proceedings in that court.
34	The appellant contends that such error may be characterised as all or any one or more of: a mistake as to the existence of that possibility as a matter of fact; acting on a wrong principle; or failing to take a relevant consideration into account. In the course of the hearing, we raised with counsel for the parties whether or not the asserted error might not also be constituted by a plainly unreasonable, unjust or wrong outcome. Counsel for the respondent quite properly conceded that was open to us, without necessitating any amended or additional ground of appeal on the part of the appellant.
35	The appellant contends that the contingent language used by the Full Court in Littlefield & Pemble at [45], namely, whether there is a “real possibility” that the report “may” contribute to the administration of justice in his criminal proceedings, requires something less than a probability.
36	In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, to which Schonell J referred in Chakora & Bhander and to which the primary judge in turn referred, Wilcox J further said at 225:
… I cannot say that the document will be important to the achievement of justice in the Aetna-Hongkong Bank case; much depends upon the course of that case and the evidence given in it. But it deals with matters relevant to that proceeding. It is a statement made by a person involved in transactions the subject of that proceeding. It has at least the potential to be important to the proper determination of that case. I propose to grant leave.
(Emphasis added)
37	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)
38	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)
39	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) 
40	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.…
41	Indeed, it will be recalled that in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd at 225, Wilcox J said that, “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”.
42	In Littlefield & Pemble, the Full Court granted leave to appeal, and allowed an appeal, from an order of the primary judge dismissing the appellant’s application to release the single expert reports in extant parenting proceedings in the Federal Circuit and Family Court of Australia (Division 1) for use in criminal proceedings in which the appellant was charged with offences in relation to the child the subject of the former proceedings. In re-exercising the discretion, the Full Court said at [45]–[47]:
45.	We have already set out the list of potentially relevant considerations articulated by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. Here it seems to us 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.
46.	The father points to the potential use of statements by the mother to both Dr E and Dr F, in the cross-examination of her in the criminal court, as satisfying the relevant test, particularly given the considerable overlap between the issues in the criminal proceedings and the parenting proceedings. As but one example, Dr E notes that the mother withheld significant relevant mental health history from her, which is a matter upon which the mother might legitimately be cross-examined. There is also the possibility that the professional opinions expressed by the authors may be in some way relevant to the criminal proceedings.
47.	It is in the public interest that there be the proper administration of justice in the criminal proceedings, and we were satisfied that the opportunity to rely on the two single expert reports may assist in that.
43	Notwithstanding having been, and having, referred to the decision of the Full Court in Littlefield & Pemble, the primary judge dismissed the appellant’s application. However, we consider the fact that the appellant’s liberty might be at stake, if convicted in the District Court proceedings, and that there were prima facie inconsistent statements made by the respondent in those proceedings and in the parenting proceedings, manifestly constitute a special feature of the case which is not usually present and which affords a reason for releasing the appellant from the implied undertaking, as well as for varying Order 2 made on 5 July 2024. Indeed, when it was put, in such terms, to counsel for the respondent, he did not demur. 
44	The primary judge held (at [24]) that:
•	the appellant had 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)” would “likely contribute to achieving justice”; and
•	the appellant had not established how “untested alleged conversations that are potentially hearsay and given with the assistance of an interpreter”, again, would “likely contribute to achieving justice”, there being no evidence that the appellant proposes to call the single expert as a witness in the criminal proceedings.
45	However, in Littlefield & Pemble at [37], the Full Court said that:
… 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, is that is properly a matter for the other court (Sahadi at [69]).
46	In Sahadi & Savva and Anor, the Full Court said at [69]–[71]:
69.	The question of the admissibility of the report, to the extent that it is to be tendered in the criminal proceedings is a matter for the Supreme Court of New South Wales. There is no reason why any contested issues of fact, to the extent that there are any, cannot be resolved in that court. 
70.	More importantly the submission overlooks the fact that the report may well not be tendered in the Supreme Court proceedings. The information contained in the report, rather than the report itself, may be used in relation to the proceedings without becoming evidence in them. 
71.	As the Commissioner correctly submitted the release of the report might lead to further investigation including an investigation as to the reliability of what is contained in the report. As the Court pointed out in Commissioner of Taxation & Darling and Anor at [180] it is only after the collection and evaluation of evidence that decisions can be made as to the use of the released material.
47	Accordingly, the appellant contends that the primary judge erred in determining, and dismissing, the appellant’s application on the basis that he had not discharged a non-existent or, we would add, impermissible forensic obligation to “establish” the uses to which the report would, or might, be put for the purposes of the criminal proceedings and the “likelihood” that those uses would contribute to achieving justice in the criminal proceedings.
48	The respondent submits that, whilst the appellant argued at first instance that the primary judge was constrained from considering “the uses and purposes” to which the report might be put in the criminal proceedings, he contends on appeal that her Honour erred in considering such uses. The respondent submits that “[b]oth points cannot stand together”. The respondent points to the passage in Littlefield & Pemble at [37] and the reference therein to Sahadi & Savva and Anor at [69] and submits that, in the latter case:
… the Full Court did not conclude as a matter of principle … that the purpose to which the report may be put was only a matter for the other Court; rather that the question of its admissibility was not determinative in preventing the release of the report, since the other Court would determine that for itself, along with any factual matters in contest. In fact, for the Full Court in Sahadi, there was scope for the report to be used in ways beyond the mere tender of it in proceedings which might well be relevant to whether or not the court below was correct to permit release the [sic] report. …
(Emphasis in original)
49	The respondent further submits that “[i]t may be that the Full Court in Littlefield [37] meant ‘the evidentiary purpose to which it may be put’ rather than ‘purpose’ or ‘use’ more broadly” (emphasis in original). Clearly, the admissibility of the document in respect of which release from the implied undertaking is sought is a matter for the other court. Indeed, different evidentiary provisions may apply where there are criminal proceedings in one court and civil proceedings in the other. In considering whether or not release from the implied undertaking should be granted, the court from which the release is sought can, and will often need to, have regard, more broadly, to the purpose or possible use of that document in the other court; in other words, why the release of the document is sought. Without considering for what purpose an applicant wants to use a document, or how it might be used, it may be difficult to determine whether there is a good reason to release the document from the implied undertaking. However, that is qualitatively different from the first court determining whether the document could actually be used, and be admissible in, the other court.
50	Therefore, in holding that the appellant had 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” and “untested alleged conversations that are potentially hearsay and given with the assistance of an interpreter” would likely contribute to achieving justice, we consider that the primary judge misapprehended and misapplied the dicta of the Full Court in Sahadi & Savva and Anor at [69] and Littlefield & Pemble at [37] and fell into appellable error. The statements by the respondent to the single expert could, at the very least, in the District Court proceedings, be used as evidence of prior inconsistent statements by her.
51	Further, insofar as the primary judge considered the report to contain hearsay evidence, that is not necessarily so. For example, the respondent is the complainant in the criminal proceedings and the single expert could be called to give evidence in those proceedings, including by subpoena, if necessary, thereby obviating the issue. Further, the evidence might be admissible not as evidence of the truth of what was said, but as evidence of the fact that it was said, by the respondent and her mother to the single expert. 
52	The respondent submits that it was primarily the lack of explanation offered by the appellant, at first instance, about how he proposed to use the report which led the primary judge to reject his application. However, that is not so. It is apparent from paragraph 12 of the appellant’s solicitor’s affidavit, and the table contained therein, that there were said to be inconsistencies between the allegations against him in the criminal proceedings and those against him in the parenting proceedings. The evidence of his solicitor, in her affidavit, whilst hearsay, was admissible in support of his interlocutory application, by reason of s 75 of the Evidence Act 1995 (Cth) which provides that:
In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.
53	The appellant correctly contends that each of the reasons given by the primary judge for dismissing his application was informed by: an unduly narrow conception of the many ways in which the report, if released from the implied undertaking, could possibly be used for the purposes of the criminal proceedings; misapprehensions about the way in which a criminal trial is conducted; and unwarranted assumptions about which particular contents of the report might be made admissible in the criminal trial. For example, subject to the control of the District Court and the professional obligations of counsel, the contents of the report could be used by the appellant to assist in his defence, whether indirectly as a basis for investigation or enquiry into aspects of the Crown’s case, or directly as a basis for cross-examination of the Crown’s witnesses, or as evidence. Witnesses could be called by, or at the request of, the defence to make admissible representations made in the report.
54	There was no basis for the primary judge’s speculations about what evidence might be adduced in the criminal proceedings, and what witnesses might be called, and by whom. Further, without release from the implied undertaking, the appellant is precluded from giving the requisite notice under s 143(1)(h) of the Criminal Procedure Act 1986 (NSW) in relation to the report. 
55	Section 141(1) of that Act relevantly provides:
(1)	After the indictment is presented or filed in proceedings, the following pre-trial disclosure is required -
…
(b)	the accused person is to give notice of the defence response to the prosecution's notice in accordance with section 143,
…
56	Section 143(1)(h) of that Act provides:
(1)	For the purposes of section 141 (1) (b), the notice of the defence response is to contain the following -
…
(h)	if any expert witness is proposed to be called at the trial by the accused person, a copy of each report by that witness that is relevant to the case and on which the accused person intends to rely,
…
57	In the circumstances, the primary judge erred in law in holding that special circumstances did not exist for the release of the report from the implied undertaking, namely, a real possibility that it may contribute to the administration of justice in the appellant’s criminal proceedings in the District Court of New South Wales. These grounds of appeal are established. Additionally, as we alluded to counsel for the respondent at the hearing before us, we consider the primary judge’s dismissal of the appellant’s application to be plainly unreasonable, unjust and wrong.
Grounds 1(b)(ii) and (c)(i)
58	These grounds are directed to what the primary judge relied upon and described as the appellant’s “election” not to adduce the Crown brief into evidence in support of his application to be released from the implied undertaking in relation to the report.
59	The appellant submits, and the respondent concedes, that the Crown brief was similarly protected by an implied undertaking to the same effect in the District Court proceedings, and therefore was not readily available to be put into evidence before the primary judge. The respondent submits that the appellant could have sought agreement from the Director of Public Prosecutions and leave from the District Court to adduce it before her Honour. However, that is a circuitous argument; it might equally be argued that, for the purposes of such an application, the District Court should have regard to the report in the parenting proceedings in considering whether to release the Crown brief from the implied undertaking in that Court.
60	Further, as we have observed above, there was admissible evidence before the primary judge, at paragraph [12] of the appellant’s solicitor’s affidavit, of what was said to be inconsistencies between the case against the appellant in the parenting proceedings and in the criminal proceedings.
61	Therefore, these grounds of appeal are established.
Ground 1(c)(ii)
62	This ground of appeal is directed to reliance by the primary judge upon the fact that the single expert had not been put on notice of the application for release of his report from the implied undertaking, it being contended by the appellant that the expert’s attitude thereto was irrelevant and therefore incapable of informing the proper exercise of discretion one way or the other.
63	The primary judge recorded (at [24]) that the single expert:
•	recorded in the report knowledge of the rules restricting the use of the contents of the report;
•	considered and recorded in the report the contents of a number of other documents, such as documents produced upon subpoena “originating from sensitive sources including the Police and the Department of Communities and Justice”; and
•	interviewed various third parties, including the children's school principal and counsellor, as well as the respondent's domestic violence counsellor.
64	The appellant concedes, in accordance with authority, that the attitude of the author of a document may, in some circumstances, be a relevant consideration.  However, he submits, inter alia, that:
•	there is no possibility that the single expert could suffer any prejudice by the report being used for the purposes of the criminal proceedings;
•	there could have been no reasonable expectation of privacy or confidentiality when the appellant and the respondent spoke to the single expert, who explained to them, as he recorded in the report, that it “would not be strictly confidential”, referring to paragraph 10 thereof; and
•	any concerns about the privacy or confidentiality of any information in the report are properly to be left to the District Court which, it should be assumed, will not permit the unlawful or improper use of any information under its control.
65	The respondent points, inter alia, to the “heavy restrictions and controls on release of expert reports in parenting proceedings and the fact that both parties were legally represented”. As to the latter fact, the relevance thereof eludes us. As to the former, it is apposite to cite paragraph 10 of the report in its entirety:
At the onset of the initial interviews with each party I explained that any information divulged in our interviews could be used for the preparation of the report, which was to be provided to the Court and all the legal representatives involved in the proceedings and thus would not be strictly confidential.
66	The respondent, in opposing the release of the report to assist the appellant in his defence in the criminal proceedings, also points to the fact that it had been prepared for a particular purpose, namely, the parenting proceedings, in which the paramount consideration is the children’s best interests.
67	It is difficult to understand how a party to parenting proceedings, who opposes the release of a Family Report or like expert report in those proceedings from the implied undertaking, could properly rely in support of such opposition upon the supposed confidentiality of statements in that report which are, prima facie, inconsistent with statements made by him or her in related criminal proceedings. This is especially so in circumstances where that party could, and should, reasonably have anticipated that those statements would not be, or remain, confidential in the parenting proceedings. 
68	It is in relation to this ground of appeal, and any re-exercise of discretion if leave to appeal be granted and the appeal be allowed, that the appellant seeks leave to adduce further evidence.
69	Section 35(b) of the FCFCOA Act confers upon the Full Court an unfettered discretion to admit further evidence on appeal. The principles relevant to the discretion were discussed by the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed at [114] and [116]:
114.	No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116.	The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
70	In the present case, the appellant seeks to adduce into evidence an email from the single expert dated 15 January 2025 in which the single expert states that he consents to his report being released to the appellant’s criminal law barrister and being used in the criminal proceedings, including any appeal. That is not disputed by the respondent.
71	That email is annexed to an affidavit from the appellant’s solicitor filed on 16 January 2025, who deposes that she had not sought to ascertain the single expert’s attitude or obtain consent to the release of his report, prior to the hearing of the application. The solicitor further deposes (at paragraph 8 of her affidavit):
This evidence did not exist at the time of the hearing of the application that is the subject of this appeal. That was because I had not sought [the expert’s] consent to use his report because, at that time, I did not consider that [the expert’s] attitude towards the application was capable of being a determinative consideration. That was substantially because I considered that [the expert’s] report made it clear that his report was not in any way confidential.
72	Whilst, strictly speaking, the email dated 15 January 2025 did not exist at the time of the hearing at first instance, that is because the single expert’s attitude or consent had not been sought, rather than that it could not be ascertained. Further, it is not correct that the single expert made it clear that his report “was not in any way confidential”; rather, he stated that it was not “strictly confidential”.
73	Nevertheless, we agree that the single expert’s attitude or consent, whilst theoretically not entirely irrelevant, were not capable of, or reasonably foreseeable as being, a significant consideration. Given the undisputed nature of the evidence and the not unreasonable assumption of the appellant’s solicitor, we shall grant leave to the appellant to adduce the extremely limited evidence of the single expert’s consent.
74	The expert is a professional witness who prepared the report pursuant to an order of the Court. As such, he can reasonably be deemed to have expected that its contents would be read by the parties, their lawyers and the Court; that it would, in all likelihood, be adduced into evidence and relied upon by the Court; and that he would likely be cross-examined thereon. The argument that he did not know or anticipate that it might be used in, or for the purposes of proceedings in another court is, we consider, a distinction without a difference. Accordingly, this ground of appeal is established.
Grounds 1(c)(iv) and (d)(ii)
75	These grounds are directed to the primary judge’s holding at [24] of the Reasons that the appellant had “not engaged in any meaningful manner with the best interests of the children” and that there was “no evidence as to how the release of this report to be used in the [appellant’s] criminal proceedings will impact on the children”.
76	Whilst s 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that, in determining whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount principle, the order sought by the appellant was not a parenting order. Nevertheless, in CDJ v VAJ (No 1) at [192], Kirby J said:
… Although the statutory expression of the paramountcy principle is particularly emphatic in respect of the cases to which it applies, the general obligation to approach any judicial decision which might impinge on the welfare of a child with at least a broad appreciation of the implications of the decision for that child’s welfare is consistent with the long-standing parens patriae jurisdiction of the courts which have successively been involved in such cases. The mention of this consideration in relation to particular provisions of the Act does not exclude it totally from relevance to other decisions under the Act other decisions under the Act. … It would be completely artificial to dissect the issues and to require that the welfare of the child or children should be completely ignored. The metaphor of the “shadow” was an apt one. Whilst not governing the decision … the welfare of the children, as the ultimate issue, was properly kept in mind. …
77	Whilst the metaphor of a “shadow” may be an apt one, the length cast by the shadow may vary, depending upon the circumstances of the case. In the present case, it is entirely unclear, and although not a ground of appeal, no reasons were proffered by the primary judge as to how, the release of the report from the implied undertaking for the sole purpose of use in, or purposes related to, the District Court proceedings could have any adverse impact on the children.
78	Further, in considering the applicant’s application in the “shadow” of the children’s best interests, to which s 60CA refers, it should be recalled that, in any event, s 60CC provides that in determining what was in their best interests, s 60CC(2)(e) refers to “the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so”.
79	Putting to one side, momentarily, any issues of actual or unacceptable risk to the children, and any amelioration of any unacceptable risk, for example, by supervised time, if the appellant is convicted and sentenced to a term of imprisonment, that may directly impact upon their best interests, to which s 60CA is directed, as well as the consideration in s 60CC(2)(e).
80	Insofar as the primary judge accepted the respondent’s submissions that, in the event the expert were to give evidence in the appellant’s defence in the criminal proceedings, it would be inappropriate for him to continue as such in the parenting proceedings, her Honour failed to explain why this was so. Again, although not a ground of appeal, that does not mean it can, or should, be ignored. See Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[32]; Warren v Coombes (1979) 142 CLR 531 at 552–553. As we have explained above, the expert might not necessarily give evidence in the criminal proceedings. Even if he did, it does not necessarily follow, and it is speculative to suggest, that he would need to be replaced as the expert in the parenting proceedings.
81	Insofar as the primary judge speculated that, if the expert had to be replaced, there would be “significant delay in the parenting proceedings”, as at the date when the application was heard, those proceedings did not yet have a hearing date. Further, given the criminal proceedings, there was no reason to think that the conventional rule that the civil proceedings should await the determination of the related and overlapping criminal proceedings would not have been followed in this case. See Lucciano v The Queen (2021) 287 A Crim R 529 at [24]–[25] and Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (2019) 138 ACSR 42 at [53]–[59], [61]–[63]. Therefore, there was no realistic prospect that, even if the expert had to be replaced, it would cause delay in the hearing and determination of the parenting proceedings.
82	Further, insofar as the primary judge also held that it would not be in the children’s best interests if, as a consequence of replacing the single expert, they had to be interviewed for a second time, her Honour overlooked the fact that it was possible, if not likely, that the children would need to be interviewed again, regardless. This was because the expert stated, in his report at paragraph 171:
It was noted to the [respondent] that she and her legal representatives refused for the children to be observed with the [appellant] or the paternal grandparents for these interviews. This was despite communication from myself stating that it would be important to make these observations. The [respondent] stated that this was because the paternal grandparents and the [appellant] had not made any enquiries regarding the children’s welfare. She also stated that she did not want the children to be stressed. …
(Emphasis in original)
83	This was notwithstanding the orders made on 8 February 2024 appointing the single expert “to inquire into and report upon matters pertaining to the welfare of the children” (Reasons at [8]). It is not submitted on behalf of the respondent, in the appeal, that the expert would not need to interview the children again, or at least observe them, with the respondent or the paternal grandparents.
84	Accordingly, these grounds of appeal are established.
Disposition
85	All of the grounds of appeal having been established, it follows that the first limb of the test for the grant of leave to appeal has similarly been established. Further, in circumstances where the father’s liberty may be at stake, if convicted in the District Court proceedings, and there are prima facie inconsistent statements made by the respondent in those proceedings and in the parenting proceedings, we consider that a substantial injustice would result if leave were refused.
86	In the circumstances, leave to appeal will be granted; the appeal will be allowed; and the orders made by the primary judge will be set aside.
87	Both the appellant and the respondent agreed that, if that were so, we could re-exercise discretion.
Re-exercise
88	It will be clear from our reasons thus far that we consider that special circumstances exist which afford not only a reason but, in this case, a strong reason, for releasing the report from the implied undertaking, which is not usually present and why, in the proper exercise of the Court’s discretion, the report should be released.
89	Additionally, the Court’s permission to use the report as the appellant seeks is required, and sought by him, pursuant to Order 2 of the orders made on 5 July 2024. It was not contended, nor do we consider, that different considerations should apply to those in relation to the release from the implied undertaking, and we shall so order.
90	The appellant seeks a further “order” to the effect that neither he, the respondent, nor their legal advisers, will be in breach of the Act by using the report for the purpose in respect of which he seeks its release and that “such use will not constitute a breach”. As drawn, that cannot properly be the subject of an order; what is sought, in effect, is an advisory opinion of the Court.
91	However, we consider that to be otiose, in any event. Section 114Q of the Act, would not be engaged for the reasons given in Littlefield & Pemble at [30]–[33]. The use of the report in, or for the purposes of, the District Court proceedings would not constitute a communication “to the public” contrary to s 114Q(1) and s 114S(2)(b)(i) of the Act. Further, the orders sought on appeal, namely, the grant of leave to use the report in the District Court would be either “in accordance with a direction of a court” or “otherwise approved by a court” within s 114Q(2)(a)–(b), such that s 114Q(1) similarly does not apply.
Costs
92	In the event that leave to appeal was granted and the appeal was allowed, both the appellant and the respondent advised through their counsel that they sought certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). Given that the appeal has succeeded due to legal error, which was not induced by the respondent, we consider that they should both have costs certificates and we will order accordingly.
RIETHMULLER J:
93	I agree with the orders proposed by Harper and Strum JJ.
94	The appellant argued the appeal on the basis that the decision was a discretionary decision, and thus that the principles in House v The King (1936) 55 CLR 499 (at 504–505) are applicable. Whether the decision of the primary judge was discretionary (and therefore “tolerates a range of outcomes”) or should be reviewed on the correctness standard (on the basis that it “demands a unique outcome”) was not argued in light of comments made in the decision in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225. Whether this aspect of Springfield Nominees is determinative of the appropriate approach to appellate review on issues of this type is unclear in light of Steven Moore (a pseudonym) v The King (2024) 419 ALR 169 and KMD v CEO (Department of Health NT) [2025] HCA 4 (see also: Project Sea Dragon Pty Ltd (Subject to a Deed of Company Arrangement) v Canstruct Pty Ltd (2024) FCR 465 at [122]).
95	I agree with the reasons of Harper and Strum JJ if the decision is appropriately reviewed as a discretionary judgment and am also of the view that the appeal should be allowed if the judgment is reviewed on the correctness standard (for the reasons that their Honours give with respect to the last limb of House v The King and the reasons as to the appropriate outcome). As a result, there is no need to determine whether the correctness standard applies in order to determine this appeal.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Harper, Riethmuller and Strum.	

Associate: 

Dated:	5 March 2025