Dealing with Family Law matters may mean having to deal with more than one form proceedings. Generally, parties to a Family Law proceeding are compelled to disclose documents and information through either court rules or specific court orders (discovery or subpoenas) throughout the matter to the other party and or third parties.
The Harman Undertaking
The purpose of the Harman Undertaking is to ensure certainty that the parties and the courts are obtaining full and frank disclosure of materials in the proceedings and that the party receiving disclosure can’t use the information other than for the purpose for which it was ordered to be disclosed – allowing for a balanced right to privacy against compulsory court processes and that the legal system is not abused. The Harman Undertaking also blinds third parties receiving the information and are aware it has come from court proceedings.
Exceptions to the Harman Undertaking:
There are two notable exceptions to the Harman Undertaking; either by Grant of leave to release a party from the undertaking or the information has been read in open Court (exception applies only to the information that has been read). To seek release, the party must; specify the document/s which they seek to release, purpose for the release and satisfy to the Court that the special circumstances justify the release.
Featon & Featon [2020] FamCA 1061
A recent case which leave was granted by the Court for documents to be used in a further proceeding was Featon & Featon [2020] FamCA 1061. In this case, the father was a party to both Family Law and Criminal proceedings. The case involved Family Law proceedings as well as criminal charges against the father with three counts of sexual and indecent offending in relation to the parties’ female child. In the Family Law proceedings, the mother filed various affidavits and subpoenas were issued to a number of medical practitioners, clinics and counselling organisations. The father applied for court leave to enable him to provide the affidavit sworn by the mother in answer to his criminal case. The Rees J determined that the father be released from the undertaking noting there be special circumstances to exist before a party will be released from the Harman undertaking obligation and in such case, considering the mother who swore the affidavit and in relation to whose medical consultations the documents have been subpoenaed is an important witness in the proceedings constitutes special circumstances.
Breaking the Harman Undertaking
Breaking the Harman Undertaking is a serious offense and seen as contempt by the court. This strict approach highlights the importance of respecting court orders and maintaining the balance between sharing information and privacy that the Harman Undertaking aims to achieve.
Ramsden Family Law – Experts in Family Law
If you need help with family law matters, especially understanding the Harman Undertaking and its impact, our experienced team is here to assist you. Contact us at 1300 749 709 to see how our legal professionals can guide you through the complexities of family law proceedings while respecting disclosure and privacy principles.
Posted in: Divorce, Latest News, Property
November 03 2022
