Can I use documents received in my family law matter for other purposes?

By Mary Young – Senior Associate

Documents you receive by disclosure, Court Order or Subpoena or any other compulsory court process cannot be used for any other purpose than for what they were provided.

This is due to an implied undertaking or obligation to the Court, known as the Harman obligation or undertaking. This principle arises from an English case Harman v Secretary of the State for the Home Department [1983] IAC 280 and in the Australian High Court case of Hearne v Street [2008] HCA 36. It is also reflected in the Federal Circuit and Family Court (Family Law) Rules 2021 which provide that you cannot use a document which relates to a family law proceeding for any other purpose and you cannot disclose that document to any other person, without the Court’s permission.

What documents does the Harman undertaking cover?

The Harman undertaking applies to information and documents which have been obtained through the court’s compulsory processes. They include documents received through the disclosure process, subpoena and other documents prepared for or disclosed in family law proceedings.  This includes but is not limited to:

• Bank statements, tax returns and other documents about a person’s financial position
  
  
• Medical records, medical reports and other documents relating to a person’s health.
  
  
• Affidavits including documents attached as annexures
  
  
• Expert reports
  
  

The Harman obligation does not apply to documents that are publicly available.

What happens if I use these documents without permission from the FCFCOA?

You would be in breach of the Harman undertaking and unable to use the relevant documents. You could also be found in contempt of Court and face serious penalties.

What can I do if I want to use these documents for another purpose such as in criminal or civil proceedings?

The Harman obligation is an obligation to the Court. You can apply to obtain leave (permission) from the Federal Circuit and Family Court of Australia (FCFCOA) to be released from the Harman undertaking. However, you must show “special circumstances” exist to warrant the release of the documents.

When do “special circumstances” exist?

“Special circumstances” exist when there is a special feature of the case which justifies modifying or releasing the undertaking. These circumstances include where it is found that the use of documents discovered in family law proceedings is reasonably required for the purpose of “doing justice between the parties” in the other proceedings.

Examples of when the Court has given permission to use documents from family law proceedings for other purposes

In the recent case of Littlefield & Pemble (2023) FLC 94-165, the FCFCOA heard an appeal from a father who had applied to use two single expert reports, obtained in parenting proceedings. He wanted to use the reports as part of his defence in criminal proceedings.

• At first instance, the father’s application was dismissed. The primary judge determined that the reports were prepared for the purpose of the ongoing family law proceedings and should not be released for other purposes. On appeal, Orders were made releasing the father from the Harman undertaking and allowing him to use the two single expert reports in his criminal proceedings.
  
  

• The FCFCOA found that it was “in the public interest that there be the proper administration of justice in the criminal proceedings” and “the opportunity to rely on the two single expert reports may assist in that”.
  
  

In the case of Bondelmonte & Ors v Bondelmonte [2017] FamCA 924, the wife commenced proceedings in the Family Court (as it was then called) to set aside final property orders made by consent. She alleged that the husband failed to disclose relevant information about his financial circumstances at the time the final property orders were made.

• The husband had been involved in separate proceedings in the Federal Court of Australia involving his business dealings. The wife sought to inspect documents produced to the Federal Court of Australia and use the information from those documents to support her application to set aside the final property orders. The husband objected asserting that this was a breach of the Harman obligation.
  

• The Family Court determined that special circumstances applied to make an order to allow the wife to inspect the documents produced to the Federal Court. The special circumstances included the need for due and proper administration of justice in the Family Court proceedings. The reason being, the documents and information the wife was seeking to obtain, should have been disclosed by the husband at the time the parties consented to the final property orders.
  

• Interestingly in this case, it was another Court (the Family Court) that had the power to make an order releasing a party from the Harman obligation owed to the Court to which the documents were produced (the Federal Court).

In the case of Pedrana & Pedrana (No 2) [2012] FamCA 348, the parties had been involved in family law proceedings regarding property matters. The mother applied to the Child Support Agency (Agency) for a change to the Child Support Assessment that was in place. As part of her application, the mother provided the Agency with documents she received from the father through the disclosure process. As a result, the child support amount the father had been assessed to pay increased from $1,898 a year to $12,634 a year.

• The question for the Court was whether the Harman undertaking “yielded” to the Child Support (Assessment) Act 1989 (Act), meaning whether the Act took precedence where it was inconsistent with the Harman undertaking.
  
  

• In making her application, the mother had to identify the additional financial information (such as income and financial resources) that had not been considered in the Assessment, and how she knew this information. She had to sign her application as being true and correct, and acknowledging penalties for misleading the Agency. The mother had received this information during family law proceedings. If she had failed to provide those documents to the Agency, she would have knowingly misled the Agency by withholding material information.
  
  

• The Court decided:
  
  

• the Harman undertaking yielded to the Act
  
  
  
  • the mother was entitled to provide the father’s financial documents to the Agency
    
    
  • the Agency was allowed to use this information when considering whether to change the Assessment
    
    

• This decision was based on factors such as the Agency’s entitlement to request documents, the parties’ duty to provide full disclosure to the Agency, and the burden on both the Agency and the Court if Court applications were required for disclosure.
  
  

It is important to obtain advice from a lawyer if you wish to use documents received during your family law matter for any other purpose. If you would like advice about these issues, please call us on 03 8672 5222 to arrange an appointment with one of our family lawyers.