Harman Undertaking: What is it and what does it mean for you?

In the recent decision of Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369, Justice Michael Lee commented on Bruce Lehrmann’s likely breach of the implied Harman undertaking, arising as a result of Lehrmann releasing to Channel 7 documents obtained by him through the ACT Supreme Court proceedings. So, what is the Harman Undertaking and what does it mean for your family law matter?

What is the Harman Undertaking?

The Harman Undertaking is an implied undertaking by parties to litigation that they will not release information or documents which they have obtained during the course of litigation for an improper purpose.

Does the Harman Undertaking apply in family law matters?

Parties are prevented from using information obtained in family law proceedings for a purpose which does not relate to those proceedings, without seeking leave of the Court. For example, a party seeking to rely upon Subpoenaed documents in family law matters in support of an application for a protection order in the ACT Supreme Court.

In the case of Pedrana & Pedrana [2012] FamCA 348, the Wife was attempting to rely upon evidence obtained in family law proceedings as to the Husband’s income, in order to increase the child support payable by the Husband. Ultimately, the Court found that the documents could be considered by the Child Support Registrar, saying “It could not be viewed as an appropriate outcome that … the carer entitled to child support was unable to draw to the Registrar’s attention the fact that the liable parent had not given [relevant] disclosure because the carer entitled to child support was constrained from doing so because of the Harman obligation and was required to go back to court to get permission to do so”  Although approved in this matter, parties should exercise caution and seek legal advice if considering releasing documents obtained in family law proceedings.

Who is bound by the Harman Undertaking?

Parties to litigation are bound by the Harman Undertaking. It also extends to parties’ solicitors, and other third parties in possession of documents relating to family law proceedings.

What are the consequences of breaching the Harman Undertaking?

The Court in which the confidential information was obtained has the discretion to determine consequences of a breach of the Harman Undertaking. The consequences may include the non-compliant party being held in Contempt of Court, or the Court ordering that the non-compliant party meet the costs of the other party or parties.

What does it mean for your family law matter?

1.      You should keep confidential information or documents obtained in the course of family law proceedings, in order to comply with the Harman Undertaking, and also to comply with Section 121 of the Family Law Act 1975 which prevents publication of information relating to family law proceedings;

2.      If you wish to use information or documents obtained in family law proceedings for another purpose, you need to seek permission of the Federal Circuit and Family Court of Australia before providing the confidential information;

3.      You should be aware that the Harman Undertaking doesn’t only apply to litigants. It also applies to solicitors or other third parties who are made aware of the confidential information;

4.      You should seek independent legal advice about your obligations in relation to confidentiality in family law proceedings.

For advice in relation to your family law matter, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Multi-purpose documents? Harman Undertakings & sharing the evidence

Following the breakdown of a relationship, you can find yourself facing multiple legal issues, including arrangements for the children, dividing property and in some cases, allegations of family violence arise. It is not uncommon for someone to be involved in proceedings before the Federal Circuit and Family Court of Australia (FCFCOA) (dealing with parenting or property matters), as well as proceedings before the ACT Magistrates Court.

As part of parenting proceedings, the FCFCOA sometimes will make an order for you and the other party to attend upon a psychologist for the purposes of preparing a Family Report. The Family Report is admissible in the FCFCOA proceedings; however you may consider that the report is useful to defend some of the allegations in the proceedings before the ACT Magistrates Court. Similarly, there may be certain evidence (including Affidavits or subpoena material) which would assist you in defending proceedings before the ACT Magistrates Court.

Where documents have been prepared for the purposes of proceedings before the FCFCOA, you are not automatically allowed to use those documents in proceedings outside of the FCFCOA. This is due to an implied undertaking or obligation to the Court (known as the Harman Undertaking), that documents prepared for the purposes of the FCFCOA proceedings will only be used for that purpose.

Separately, section 121 of the Family Law Act 1975 (Cth) imposes a restriction on the publication of any part of family law proceedings which identifies any person that is a party to or otherwise associated with those proceedings. However, this only relates to the voluntary broadcasting of information and does not apply to evidence to be given in Court.

In special circumstances, the Court may grant leave (or permission) for the release of certain documents (or parts of documents) to use in other proceedings (such as criminal or civil proceedings). The Court will consider whether there are ‘special circumstances’ (or a legitimate reason for the release of the document(s)) and whether there is any injustice caused to a party in providing that document.

You must make an application to the Court for leave to be released from the Harman Undertaking.  Where there is an application for documents to be released to the ACT Magistrates Court, it is likely that you will be able to argue that the document will remain confidential if it is just being released to the Magistrate. You should also consider whether you need a full document, or whether certain paragraphs of that document will be sufficient for the purposes of defending or supporting your matter before the ACT Magistrates Court.

In any event, it is important for you to seek advice from a lawyer if you wish to use certain evidence before the FCFCOA in proceedings before the ACT Magistrates Court. A lawyer can assist you with assessing the probative value of that evidence, and the process of obtaining the release of that document. Robinson + McGuinness is available to assist you with your family law matters and personal protection matters, including applications for release of documents.

If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Anika Buckley