QLD Family Law - Legal to Publish Family Report at Magistrates Court?

[Andreas]

Hi All

First of all thank you in advance for any feedback.

I would like to know if the other party had committed an offence as per the Family Law Act 1975, Section 121 by releasing the full Family Report to the Magistrate Court as evidence for a DVO, without authorisation by the Federal Court?

If so, what actions should I take?

- should I inform the Federal Court Registry?
- should I inform any authorities?

Please help. Many Thanks.

 

[Lance]

Hi Andreas,

I'm surprised the Magistrates court accepted it as evidence without authorisation being given. I would speak with the Federal Court Registry.

 

[Rod]

would like to know if the other party had committed an offence as per the Family Law Act 1975, Section 121 by releasing the full Family Report to the Magistrate Court as evidence for a DVO, without authorisation by the Federal Court?

No. FLA s121 has exceptions for other court proceedings that are relevant to family matters at a state level (eg DVOs).

You'll need to find another defence.

 

[Rod]

Forgot to point out that some material in family reports should not be used due to rules of evidence, not because of the FLA s121. eg untested allegations, hearsay etc.

 

[Lennon]

No. FLA s121 has exceptions for other court proceedings that are relevant to family matters at a state level (eg DVOs).

I don't agree that such an exception exists. Which particular exception to 121 are you referring to?

 

[Rod]

(9)a and (9)aa.

 

[Lennon]

It doesn't come within the 9(aa) exception, but does appear to come within the 9(a) section.

However, it is subject to the implied undertaking (Harman undertaking) and leave of the court in which the family report was prepared is required before it can be used for any purpose other than the proceedings. See, for example Miller & Murphy [2016] FCCA 974 (2 May 2016)

So submitting the report to the Magistrates Court, without leave of the Family Court/Federal Circuit Court, is effectively a breach of the implied undertaking (not an offence as such, but arguably puts the person who used the report without leave of the court in contempt of court).

 

[Rod]

Was replying when I saw the update. I think we are on the same page now.

re: Harman undertaking. Thank you for adding to my knowledge.

s121(9)(aa) could still come into play if DHS is involved but we don't know this on the limited information we have.

BTW - Lennon - are you legally trained? Finding the case reference and changing your post indicates some degree of formal knowledge in this area.

 

[Lennon]

I think we are on the same page now Rod

The implied undertaking should be emphasised in family court proceedings, since the information being shared is often so private and many people are unaware of their obligation to keep that information confidential.

I am a lawyer, but I don't have any background at all in family law (I work in general litigation). I am currently wading through the family court processes myself with great difficulty.