A: To put it simply, any documents you receive by way of disclosure, Court Order or Subpoena or any other compulsory court process cannot be used for any other purpose than for the purpose intended.
This obligation to the Court is due to an implied undertaking, known as the Harman undertaking which arises from an old English case Harman v Secretary of the State for the Home Department [1983] IAC 280, affirmed in the Australian High Court case of Hearne v Street [2008 HCA 36.
The Federal Circuit and Family Court (Family Law) Rules 2021 further cement this position, providing 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.
Sub Q: Why can’t I release court documents?
The Court imposes these strict obligations on a party to a proceeding in order to prevent the misuse of court documents, and to protect the privacy of the people involved in the case.
Sub Q: What documents are covered by the Harman undertaking?
There are many documents that are covered by the Harman undertaking. Some of these documents include documents obtained via a subpoena and documents received via the disclosure process, inclusive of bank statements, tax returns, medical records and affidavits.
Sub Q: What happens if I use these documents without permission from the FCFCOA?
A: Breach of this “use and disclosure” restriction does not require bad faith or deliberate impropriety, simply use for any purpose other than the prosecution of the proceeding in which the document was given. If you were to misuse a document, 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.
If you are going through a separation and need legal assistance in regards what you can and cannot do, our family law expert is here to help. Our expert is highly experienced in all aspects of family law, from divorce and separation to property settlement and time with children. Please contact our office via email or by phone to discuss how we can assist.