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The Harman undertaking – what is it?

By February 5, 2021February 23rd, 2024No Comments

Sometimes in life, people may find themselves dealing with more than one court process at the same time, for example they may be going through family court proceedings while they are also defending themselves against criminal charges in State or Territory courts. Sometimes the matters might be related, as is the case in a recent matter heard in the family courts involving a father who is litigating parenting proceedings as well as defending himself against sexual offence charges relating to his young daughter. Other times, the matters may be completely unrelated. Either way, in situations where there are multiple court proceedings afoot, something called the Harman undertaking can become relevant. Let’s take a look at what this legal term means.

The recent family court matter involving the father defending himself against criminal charges has been given the pseudonym of Featon & Featon by the family courts. The most recent application by the father in the family court dealt specifically with the matter of the Harman undertaking. The father applied to the family court to be released from the Harman undertaking, which is also known as the “implied undertaking”, and he was successful. So what does this mean?

What is the Harman or implied undertaking?

The rules of our legal system are that if parties in litigation are compelled (either through court rules or via a specific court order) to disclose documents and information, the party receiving the disclosure can’t then use that information for any other purpose other than the one for which it was ordered to be disclosed. That is, the information can’t be used for a “collateral or ulterior purpose” that is unrelated to those specific court proceedings.

However, it’s possible to apply to the court to obtain leave (ie. permission) of the court to be released form the Harman undertaking. The Harman undertaking also applies to material that has been received into evidence in open court, in other words the information has become public.

What documents and information are covered by the Harman undertaking?

The types of material disclosed to which this principle applies include: affidavits, documents inspected after discovery, answers to interrogatories, documents produced under subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order and witness statements served pursuant to a judicial direction.

Note that the Harman undertaking not only binds the litigant who is receiving the information, but also third parties who may receive the information and are aware that it has come from court proceedings. A breach of the Harman undertaking is treated as contempt of court.

What’s the purpose of the Harman undertaking?

The basis for the Harman undertaking’s existence is that parties, and courts, need to be certain that they obtain full and frank disclosure of discovered documents, that parties’ right to privacy is balanced against compulsory court processes, and that the legal system’s processes are not abused.

The Harman undertaking in this case

In Featon & Featon, the father was charged with sexual offences against the couple’s three year old daughter. His criminal law prosecution was running concurrently with the couple’s parenting proceedings in the family court.

In the family law proceedings, the mother filed a number of affidavits and issued subpoenas to medical practitioners, hospitals, clinics, counselling organisations as well as the Department of Family & Community Services for the production of their records relevant to her family court case.

The father wanted to be able to use the information that the mother obtained on subpoena, and her affidavits, in his criminal matter, and the mother opposed this.

The mother had opposed the father’s application to be released from the Harman undertaking on the grounds that the material wasn’t relevant to his criminal matter and because he was “embarking on a fishing expedition”.

But the family court ruled the material could potentially be relevant, depending on the discretion of the trial judge in the criminal proceedings. The court said the mother’s evidence would be challenged in the criminal matter, and that evidence included statements she had made to the professionals in her family court matter relating specifically to the matters that became the subject of criminal charges. It could not be said that such information would not be relevant to the father’s criminal matter.

The court also ruled that the father was not embarking on a fishing expedition because he already knew the entire contents of all the documents he wanted to use, because they had already been disclosed to him in the family court litigation.

This notion of preventing people from going on “fishing expeditions” for information is exactly the same as the way the subpoena process works: people must define a narrow scope for the information they wish to subpoena from a source, rather than attempt to gather any or all information and then cherry pick what they find useful from that.

In this case, the family court also noted that it was established by previous authorities that there is a need to prove special circumstances exist before a party can be released from the Harman undertaking. Here, it was found that there were special circumstances, namely that “the father is engaged in his defence against serious criminal charges and the person who swore the affidavits [ie the mother] and in relation to whose medical consultations the documents have been subpoenaed is an important witness in the proceedings”.

The family court has now ordered that the father be released from the Harman undertaking. He therefore has leave to use certain material provided by the wife to the family court in his criminal proceedings defence.

You can read this judgment here.

If you need advice in relation to the Harman undertaking, or any other assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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