During financial court proceedings, each party has a duty to disclose their financial position to the other party and to the court. This includes documents relating to the assets, liabilities and superannuation in their name or in which they hold an interest, legal or equitable. Examples of documents which are required to be disclosed in financial proceedings include bank statements, credit card statements, tax returns, payslips, and superannuation statements, as well as all documents relating to an entity within which a party holds an interest.
For more information on your duty of disclosure, check out our article on this topic: Duty of Disclosure.
Frequently, documents in your possession as a result of financial proceedings or anticipated financial proceedings become relevant in other processes, for example, for departure applications with respect to child support assessments.
So what can you do when you have possession of your ex partner’s financial documents and they do not align with what your ex partner is telling the Child Support Agency in relation to their income, assets, financial resources? Can you give those financial documents to the Child Support Agency?
Read on to learn the answer to this question.
Can I give my ex’s financial documents to other people or organisations?
You may find yourself in hot water if you disseminate your ex partner’s financial documents that you obtained through negotiations in the financial proceedings, to other people or entities, unless you have the permission of the Federal Circuit & Family Court of Australia to do so.
The reason you cannot provide your ex partner’s documents to other people and use them for a purpose outside of the family law proceedings, is firstly because the Family Law Act 1975 restrains publication of documents in family law proceedings to the pubic, and secondly because of the Harman Principle.
Restraint against publication of documents outside of proceedings
Section 121(1) of the Family Law Act 1975 provides that a person who publishes by paper or electronic means, or otherwise disseminates to the public, any part of court proceedings under the Act that identifies a party to the proceedings, a related/associated/concerned with the proceedings or a witness in the proceedings, commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
Importantly, the restraint on dissemination of information as follows:
- by publishing it in a newspaper or periodical publication;
- by radio broadcast or television by other electronic means; or
- otherwise to the public or to a section of the public by any means.
The phrase “disseminates to the public” refers to a widespread communication with the aim of reaching a wide audience and should not extend to:
- a conversation with a close personal friend, counsellor or therapist;
- the use of documents in other court proceedings;
- providing documents to the ATO;
- providing a family report to an expert retained in the proceedings;
- providing copies of judgments to the Department of Child Safety;
- providing copies of judgments and orders to contact centres.
It is important therefore that parties are weary about not disseminating information about court proceedings on social media or the internet as this counts as dissemination of the information to the public.
If a party breaches section 121, that person commits an offence where upon conviction, is punishable by up to one year in prison.
What is the Harman Principle?
The obligations in accordance with section 121 sit alongside the Harman obligation, however, the Harman obligation must be considered separately and may be relevant even where section 121 does not apply.
The Harman obligation provides that parties are not permitted to use documents obtained by a party in proceedings, or information in them, for any other purpose: Hearne v Street.
The purpose of the Harman Principle is to encourage party’s to make full and frank disclosure in financial proceedings and to ensure that a party’s right to privacy is infringed only to the extent that justice requires.
The Harman principle is reflected in rule 6.04 of the Family Law Rules which provides that a person cannot use a document which relates to a proceeding for any other purpose and must not disclose the document to any other person. There are some exceptions to the rule, mainly in relation to disclosure of the document to a solicitor or barrister or if the person has a common interest in the document. A person may also disclose the document if permission of the Court is obtained.
Even once the document is read in family law proceedings, rule 6.04 must still be complied with and section 121 still prevents the publication of the documents to the public: Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020.
If the Harman obligation is breached, the party in breach may be held in contempt of Court.
So I can’t provide my ex’s financial documents to the child support agency?
In Pedrana & Pedrana (No 2) [2012] FamCA 348, the Court considered whether a party could provide disclosure documents from a financial proceeding to the Child Support Registrar in a departure application.
In this case, the father provided documents and information to the mother during financial proceedings between them in the Family Court. The parties made consent orders. The mother then applied to the Child Support Agency for a departure from administrative assessment and provided some of the documents to CSA.
The father was initially administratively assessed to pay $1,898 per annum for the parties’ two children, aged 7 and 5 but after the officer referred to information contained in the documents, a departure determination was made and the Father was reassessed to pay $12,634 annually.
The sole issue for His Honour’s determination was whether the Harman obligation must “yield” in the circumstances of this case because it is inconsistent with the provisions of the Child Support Assessment Act (1989).
His Honour noted that in the 22 years in which the CSA has been in operation, the Registrar has been receiving the type of information that the mother sent the Registrar in this matter.
Ultimately, the Court held that the Harman obligation must yield to inconsistent statutory provisions, in this case, the Child Support legislation: Esso Australia Resources Limited v Plowman (1995) 183 CLR 10, 33.
The decision was made on the basis that:
- the Child Support Registrar must make a determination as to the assessment and it is entitled to request documents to do so: s98H and 98C CSAA;
- parties to an assessment owe a duty of full and frank disclosure to the Child Support Registrar: and must not materially mislead the Registrar: s159 and s159A CSAA
- secrecy provisions apply to documents obtained by the Child Support Registrar;
- the Child Support Registrar would receive significant assistance from such documents and it is consistent with the purposes of the framework to permit such disclosure; and
- the Parliament did not likely intend for applications to be made to the Court to release documents to the Child Support Registrar, and to require that would significantly increase the burden on both the Child Support Registrar and the Court.
When the Mother completed her application for departure, she had to describe the income, property and financial resources or earning capacity not taken into account in the assessment and how she knew this information. The mother was required to sign the document as being true and correct and was warned of penalty for deliberately giving false and misleading information. Therefore, the Mother knew she had received relevant financial information from the father during the family law proceedings. If she had not sent it to the Registrar, she would have knowingly omitted supplying the Registrar with material information.
As the Harman obligation yielded to the child support legislature, the Mother was entitled to forward to the Registrar the documents which she did and the Registrar was not prevented from using the information when considering the departure application.
What about release of documents to other people/courts/agencies?
Where the Harman obligation does apply, in determining whether the documents ought to be released from the obligation, the Court will consider whether there are special circumstances that justify it in doing so, that being a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present, however, the reason need not be extraordinary, merely a good reason.
The Court will consider the following factors:
- the nature of the document;
- the circumstances under which it came into existence;
- the attitude of the author of the document and any prejudice the author may sustain;
- whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain (however, as above, this is unlikely to apply to documents created for the purposes of family law proceedings);
- the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
- the circumstances in which the document came into the hands of the applicant for leave; and
- “Perhaps most important of all,” the likely contribution of the document to achieving justice in the second proceeding. The Court has further held that the document must be “reasonably required” to achieve justice and not just desirable.68
The Court has permitted the release of documents from a Harman obligation so as to enable the use of documents from family law proceedings in the following circumstances:
- to use a child impact report in protection order proceedings, where the child gave a statement to the family report writer which conflicted with the mother’s account in her protection order application: Miller & Murphy [2016] FCCA 974. The Court was compelled by the fact that the child impact report could have a significant impact on the outcome of the protection order proceedings;
- to admit a family report into evidence in protection order proceedings, on the basis that it was relevant to the Court’s power to vary or suspend a parenting order: McManus & Bracken [2021] FedCFamC2F 206.
- to use affidavits sworn in family law proceedings for the purposes of criminal proceedings, where the contents of the alleged victim’s affidavits were relevant to the accused’s defence: Zarins v Mylne (No 3) [2013] FamCA 737.
- to provide a family report to medical practitioners or therapists after the conclusion of the proceedings: Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020.
- To provide affidavits sworn by the mother and documents produced in answer to the subpoena in the family law proceedings, to the Criminal Court, in circumstances where the Father had been charged with three counts of sexual and indecent offending in relation to the parties female child. The Mother was to be a witness in the criminal proceedings: Featon & Featon [2020] FamCA 1061.
Parties must carefully consider the publication of documents or information where the Harman obligation applies. Disclosure of the documents on social media, e.g., could be a contempt of court.
Can I give my ex partner’s financial documents to the child support agency?
The simple answer is generally, yes, the Harman obligation yields to inconsistent provisions in the child support legislation, which provide that you have a duty of full and frank disclosure to the Child Support Agency, when an application for an administrative assessment or a departure from an administrative assessment is sought.
However, before taking any action, you should obtain legal advice about your specific circumstances.
For advice in relation to your specific circumstances, contact our office to book a reduced rate initial consultation with one of our experienced family lawyers.
