In the complex family law case of Evert & Pascal [2022] FedCFamC1F 569, the Federal Circuit and Family Court of Australia addressed several significant issues, including the application of the Harman undertaking. This principle, originating from Harman & Secretary for the Home Department [1983] 1 AC 20, prohibits parties from using documents or information obtained through court processes for purposes outside the proceedings in which they were obtained. The case involved a husband seeking leave to provide material from family law proceedings to his criminal defense lawyers, as he faced serious criminal charges related to allegations made by his wife.
Justice Berman’s decision provides valuable insight into when a court may release parties from the Harman undertaking, finding that “special circumstances” existed in this case. The judgment clarifies that while the implied undertaking generally applies to affidavits and other court documents, release may be granted when justice requires it. This case highlights the delicate balance courts must strike in family law matters that intersect with criminal proceedings, while maintaining the integrity of the disclosure process.
It appears that over objection (i.e not by consent), a Senior Judicial Registrars does not appear to have the power to lift Harman undertakings depends on the delegated powers granted to them under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. See Schedule 4 of the rules : https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/fcafcoalr2021543/sch4.html
Case attached.