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Can you argue disclosure is a breach of confidentiality?

By May 28, 2021February 23rd, 2024No Comments

“No, you can’t,” was the answer a court gave a mother in a recent family court case in which she resisted having her subpoenaed bank statements inspected by an expert. In the matter pseudonymised as Leventis & Leventis, a mother had first argued that the Privacy Act applied and the financial documents’ release would be a breach of her privacy, but when that argument failed, she tried to argue it was a breach of confidentiality and therefore the documents should not be released despite the family law rules on disclosure. However, the court found that the three elements needed to establish a breach of confidentiality were not met in this matter. Let’s take a quick look at what this case reveals.

The duty of full and frank disclosure: breach of confidentiality?

The duty of full and frank disclosure of financial information in property proceedings in family court means that certain types of financial documents must be exchanged between parties. This enables the court to get a picture of the true financial position of each party—their income, assets, liabilities, superannuation and financial resources.

It would obviously be impossible for courts to deliver justice if they were confronted by litigants all claiming their personal financial information was confidential and therefore they did not need to comply with disclosure rules.

Simply put, having to provide your personal bank information to other parties and the court is unlikely to ever amount to a breach of your confidentiality or privacy in the family court system.

Arguing the confidential information has been misused

It can often be difficult to make the case that your confidential information submitted in a family court matter has been used to your detriment. All parties involved in the family court matter are automatically required to fulfil confidentiality obligations relating to any of the parties’ confidential material. Under the implicit undertaking known as the Harman undertaking, confidential information can’t be used for a “collateral or ulterior purpose” unrelated to the specific court proceedings that the information was provided for.

When might information truly be confidential?

There may be a need to protect confidential information in cases where there is intellectual property or commercially sensitive information (trade secrets and so on). People who may find themselves conflicted about whether information is confidential include business owners, franchisors, partners or joint venturers. A lawyer will be able to advise whether there is a need to protect information further than the implied undertaking, through for example, a Confidentiality Agreement or injunctions.

In dismissing the Leventis arguments regarding confidentiality and privacy, the courts awarded costs against the respondents who had initiated the argument.

You can read this judgment in full here. And if you are interested in more information on courts and confidentiality, Legal Aid NSW has a comprehensive guide here.

If you would need assistance with a family law matter involving confidentiality and disclosure, or if you would like to discuss whether a confidentiality agreement could be drafted in your case, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law.

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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