The potential utility of the documents
Part V of the Criminal Code 1913 (WA) deals with, inter alia, assault, sexual offences, threats, stalking and parental rights.
By virtue of the nature of these charges, it is not uncommon that the complainant, the accused and/or the witnesses, are related to one another, whether that be by virtue of them being spouses, parents, step-parents, children, step-children or otherwise.
It is also not uncommon that the complainant, the accused and/or the witnesses of the charge/s under that Part are embroiled in Family Court proceedings simultaneously or at some earlier or later stage of the timing of the alleged offence.
For this reason, there may be utility in obtaining documents filed or obtained in Family Court proceedings, such as affidavits, single expert reports and subpoenaed documents, for use in the criminal trial.
Affidavits for example may include a chronology and nature of the relevant person/s relationship prior to and post separation. Similarly, single expert reports from a psychologist/psychiatrist will include a professional assessment about the nature of the relevant person/s relationship prior to and post separation. Who knows, there may even be a golden nugget in a document which gives the accused an alibi!
In short, the documents may include crucial evidence about the credibility of the complainant, the witness and/or the accused and the propensity of the accused to carry out the alleged offence.
Considerations of the Family Court
You cannot use documents filed or obtained in the Family Court in criminal proceedings without first obtaining permission of the Family Court. This is because the documents are subject to an ‘implied undertaking’ that they will not be used for any other purpose than the conduct of the legal proceedings in question (see Harman v Secretary of State for the Home Department  1 AC 280 and Hearne v Street  HCA 36 at ).
When determining whether to modify or release the person seeking use of the Family Court documents, the question for the Court is whether there are special circumstances which justify the modification or release of that applicant from the implied undertaking (see Liberty Funding Pty Ltd v Phoenix Capital Ltd  FCAFC 3 at ).
“Special circumstances” do not require the presence of an extraordinary factor before discretion can be exercised. It is sufficient there simply be good reason why documents produced or information obtained in one litigation should be used in another litigation.
The matter is one for the Court’s discretion and it is neither possible nor desirable to propound an exhaustive list of relevant factors. In saying this, the factors may 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 proceedings.” (see Springfield Nominees Pty Ltd v Bridgeland Securities Ltd  FCA 472 at ).
The authorities demonstrate the importance of maintaining privacy must be weighed against the consideration of public interest and/or achieving justice (see Paviello & Paviello and Anor  FamCA 454 at ).
Case law examples
In Zarins & Mylne (No 3)  FamCA 737, the Family Court of Australia made orders permitting the Respondent to provide orders and affidavits of the Applicant and witnesses to the DPP, his criminal law solicitors, the South Australian Police and the Magistrates Court of South Australia.
The father was charged with three counts of rape against the mother. The allegations of rape allegedly arose from disclosures made by the mother’s son from a previous relationship. In Family Court proceedings, the mother made false representations in affidavit material that the child’s father was dead and she had cancer.
It was immediately apparent that the falsity of the mother’s representations, the manner in which they were made and the documents and transcripts in which they appeared had an obvious focus and relevance to the conduct of the criminal proceedings in which the father had found himself.
In Knox & Knox  FCCA 752, the Federal Circuit Court of Australia made orders granting the husband leave to provide copies of affidavits filed by him and the wife to the DPP and to the County Court of Victoria.
The father was charged with rape, reckless conduct causing injury and threats to kill, all involving the mother. The mother opposed the application on the basis the material sought involved children. The father was successful in establishing special circumstances where:
- given whom the documents were being released to (i.e. another Court) the material was not at risk to being exposed to the public at large and therefore there was no prejudice to the mother;
- the liberty of the father is at risk because if he was convicted, a sentence of imprisonment would follow; and
- affidavit material of the parties revealed a high level of conflict between them.
Other significant adverse consequences to consider which may flow from a conviction under some of the charges under Part V include but are not limited to:
- impacts on current and future employment and prospects; and
- mandatory registration on the Sex Offender Registry which includes reporting all social media accounts, phone numbers, devices, residences, whether children are with that person and the attendance at annual meetings with the police.
On these grounds and those detailed in Knox & Knox (supra), it may be said that the documents are necessary for the attainment of justice. The relevant criminal court should have reference to all available evidence when reaching a determination. That outcome is greater than the minimal invasion of privacy to which the other party may be exposed.
Practical considerations – specification
In our experience, before making an order for the use of particular documents, the Family Court will require specification of the documents sought. It is not enough to simply say the use of the entire Family Court file is sought to be used in the criminal trial.
Therefore, in the process of making an application for those documents, there need be some conferral between the client, their criminal lawyers and their family lawyers.
We are happy to make an application for your client to be permitted to use Family Court documents in their criminal trial. Before instructing us, you should ensure your client is not already represented in Family Court proceedings.