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Documents produced for court: not to be used for other purposes
Senior Associate, Dianne Caruso, discusses this important topic. 
You must not use documents produced in Court proceedings for any other purpose, unless you first get the Court’s permission to do so.
The Harman Undertaking: what is it?
The Harman undertaking is an implied undertaking made to the Court that any documents produced for the purposes of Court proceedings are not to be used for any ulterior purpose, other than the litigation in which they were produced.
This rule is codified by rule 203 of the Family Court Rules 2021 which states:
A person who inspects or copies a document, in relation to a case, under these rules or an order —
- must use the document for the purpose of the case only; and
- must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
Factors to consider for leave from the undertaking
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 the Court set out a list of non-exhaustive factors to consider when an application for leave from the Harmans undertaking is made:
- The nature of the documents;
- How the document came into existence;
- Any prejudice to the author of the document;
- The commonality of subject matter for the two Court proceedings;
- The interrelated relationship of the parties in proceedings;
- Whether or not the party seeking the release of the undertaking would suffer disadvantage in the other Court proceedings if leave were refused;
- Any inconsistency in the documents in the two proceedings;
- Whether or not the content are personal matters and if so, whether or not they are already in the public domain;
- Whether the documents could assist the second Court in determining issues of credit;
- How the release of documents would assist in achieving justice in the second proceedings.
Recent Decision
The recent decision of Tauber & Farrens [2024] FedCFamC2F 792 considered the Harman undertaking in circumstances where the mother was facing serious criminal charges in which her daughter was the complainant.
The mother sought the Court’s permission to use affidavits, family reports, Department of Families, Fairness and Housing (“DFFH”) records and subpoenaed material for the purposes of the criminal proceedings.
The Court stated that it must balance the child’s privacy against the mother’s right to mount the best defence she can in the criminal proceedings.
The Court went on to say: “I do not accept that the fact that the expert reports were prepared for these Court proceedings means that they could have little relevance to the criminal law proceedings. Rather, they go to some of the core issues in dispute. Further, as I noted above what weight is given to the documents and the use of the documents is a matter for the other Court. Given that the father, and his wife and the mother are likely to be called as witnesses for the prosecution, I am comfortably satisfied that it is in the interests of justice for the parties to be able to use the affidavits filed in these proceedings”
The Court questioned the relevance of the father’s subpoenaed medical records for the purposes of the criminal proceedings and reasoned that the mother could subpoena these in the criminal proceedings if necessary.
The Court released the parties from their obligation pursuant to the implied undertaking in respect of their affidavit material, the family report, the DFFH and the subpoenaed police records. The release was limited to the use of such documents in the criminal proceedings.
Summary
The important rule to remember is if documents have been produced for the purposes of Court proceedings, you should not use those documents for any other purpose without first obtaining leave of the Court.
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*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.