The Harman Obligation in Family Law - What Is It and How it Arose This Week?
Posted: 28th February 2015
Posted in: News
Posted by: Dean Evans, Partner
What are You Allowed to Do With Documents You Receive in Your Family Law Matter & What’s the Harman Obligation?
Did you know that you ARE NOT allowed to share any documents you receive by disclosure, Court Orders or Subpoena in Court elsewhere without permission from the Court?
This week, we handled a very interesting matter, which involved having to ask for permission to use documents obtained within a family law matter (in Affidavits and produced under Subpoena) in criminal law proceedings in an entirely different Court system.
The issue arose because we found that the material sworn by the Wife and the documents produced under Subpoena, contained information which would have been likely to be relevant to and within the criminal law proceedings. The information also appeared to us to amount to exceulpatory evidence – evidence which may assist in exonerating the Husband, who had been accused by the Wife, of perpetrating a crime.
The Wife opposed the sharing of information between the Courts.
This situation arose, because you cannot simply gather up what you received in or during a family law case, copy it or parts of it, and use it elsewhere to prove something or give to anyone else to use.
The rules which apply in the Family Court of Australia and Federal Circuit Court of Australia specifically make this plain, after adopting the principles from the decision in Harman v Secretary of State for the Home Department  1 AC 280.
So what must you do if you have a client who wants to use the information seen in a family law matter elsewhere?
You have to do what we did this week, and apply to the Court for permission.
The Court will consider the request on the basis of the prejudice which would be suffered by the release of the information balanced against the need to ensure that the administration of justice is not prejudiced.
The Court in the application we argued for our client, indicated that the Wife could not expect that the documents which might affect the Husband’s liberty and freedom should not be similarly shared between the two Courts to ensure fairness. The information contained in the documents is somewhat delicate and there was a risk that the Wife would not properly disclose the details voluntarily (given she had not to date and the documents themselves indicated a minimisation of the issues was in play).
We urge anyone who is thinking of using documents obtained from the Court elsewhere to get legal advice and for lawyers who act for clients to make sure that if they are going through and advising about disclosure, that one of the things which is the subject of the advice is that the documents must not be used for any other purpose unless with the Court’s permission.
We were also supported by a decision in similar factual circumstances, Zarins and Mylne (No.3) [ 2013 ] Fam CA 737, which can be read here.
Thanks for reading.