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The Confidentiality Of Documents In The Family Law Process

The confidentiality of documents in the family law process

The Family Law Rules require each party to exchange disclosure in matters before the Family Court of Australia. Disclosure is all documentation relevant to your case. In property matters, this means any document which relates to your financial circumstances.

However, those documents exchanged must not, without leave of the Court, be used for any other purpose other than the resolution or determination of the dispute to which the disclosure of that document relates.

The limitation on the use of the documents is a rule which arose from a case called Harman v Secretary of the State for Home Department[1] and is so known as the ‘Harman Principle’. The rule can best be explained by quoting a subsequent case which followed the rule.  This case was Hearne v Street[2]:

Where one party to litigation is compelled, either by reason of a rule of Court , or by specific Order of the Court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the Court, use it for any purpose other than that for which it was given unless it is received into evidence”.[3]

This rule is now confirmed in the Family Law Rules, in particular, Schedule 1 Part 1 Clause 4(8) and 4(9).

The Harman Principle confirms the view that it would be unfair to compel a party to produce private documentation for the purposes of litigation and yet expose that party to risk that those documents could be published in public.[4]

As a litigant, you must be mindful that any disclosure documentation you receive as part of the resolution or determination of your proceedings should not be disclosed to a third party. For example, you cannot use disclosure documentation to gain competitive advantage[5] or to use in the press.[6]

The Harman Principle is an obligation to the Court, and does not cease, save for limited circumstances, when the proceedings end.

The Court can restrain you by injunction from disclosing the documentation if you threaten to breach the Harman Principle and the consequences of breaching the principle is that you may be found in contempt of Court.[7]

If you would like more information about the Harman Principle and how it may apply to you, please contact Kristie Lear from Catherine Henry Lawyers.

 

by Kristie Lear

 

 

[1] [1983] 1 AC 280.

[2] (2008) 235 CLR 125.

[3] Ibid [96] – [97].

[4] There are exceptions for example where the document is found relevant to other proceedings. See Esso Australia Resources v Plowman (1995) 183 CLR 10.

[5] See Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd & Anor [2010] NSW 1103.

[6] See Distillers Co v Times Newspapers [1975] 1 QB 613.

[7] For a full list of the penalties that can apply if you are found in contempt of Court in the Family Court, see Family Law Act 1975 – S 112AP.

 

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