Using Family Court documents in Criminal Proceedings – the ‘implied undertaking’


It is not uncommon for sexual assault prosecutions to emanate from a breakdown in a marital or de facto relationship, and to run concurrent with disputed issues of parenting and property in the Federal Circuit & Family Court.


In these circumstances, an issue may arise regarding whether an Order of the Family Court is required to allow a defendant to use a (relevant) document produced in the family law matter in their criminal proceedings. It is commonly contended that production and use of Family Court documents in other proceedings is proscribed under the prohibition on publication in s 121 of the Family Law Act and the ‘implied undertaking’ discussed in Hearne v Street (2008) 265 CLR 125.


Attached is the recent Federal Court judgment of Littlefield v Pemble [2023] FEDCFAMC1A 198. At [26] – [39] in Littlefield, the Federal Court canvassed the legal principles in the context of an appeal against a single Judge’s decision to refuse an application by a party for an Order releasing them from the implied undertaking. The Federal Court ruled in two relevant respects. First, the Court ruled that the statutory prohibition on publication in s 121 of the FLA is limited to publication or dissemination, “…to the public or to a section of the public”: Littlefield, [30]. Provision of a copy of Family Court records to a solicitor for a party in other proceedings does not appear to fall within the scope of those statutory words. Further, there is an exception is s 121(9)(a) that applies to any recipient, “…concerned in proceedings in any Court”: [32].


Regarding the implied undertaking, Tree, Christie and Strum JJ at [27] applied the High Court’s reasoning in Hearne v Street at [96]-[97]. The High Court in Hearne held that determination of the existence of the implied undertaking in a particular case directs attention to, “the circumstances under which the relevant person obtained the documents or information” in the Family Court: Hearne at [108]. In particular, the implied undertaking applies where the party who produced the relevant document in the family law matter was, “…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…”.


Applying Littlefield, a document produced in a family law matter in answer to a court Direction, Order, subpoena or other compulsory circumstance cannot be provided for use in another proceeding absent an Order of the Family Court releasing the party from their implied undertaking. The apparent corollary is that documents produced in a family law matter not under compulsion may be provided absent an Order of the Family Court.


A test of “substantial injustice” applies to applications to the Family Court for an Order to release and use.


A breach of the implied undertaking is serious. The consequence may be a finding of contempt. However, there is an antecedent issue: does the implied undertaking apply? The answer to this question can be difficult to discern. A sensible approach is to seek an Order, if in any doubt.

Littlefield v Pemble [2023] FEDCFAMC1A 198