Ethics and professional responsibility: Non-disclosure and professional misconduct

Partner Alison Ross covers the following points in this paper: 

• The client’s obligation to make full and frank disclosure
• Redacting documents
• Privileged documents
• Inadvertently destroying evidence
• What happens if a client falls short of their disclosure obligations?
• Our obligations with respect to disclosure
• When a client refuses to make full and frank disclosure
• When a client delivers suspicious documents
• Using documents from proceedings – section 121
• The Harman obligation

In our experience one of the key issues which prevents matters from resolving by consent (or resolving by consent at an earlier stage than might otherwise be the case) is a perception by one or both parties, rightly or wrongly, that the other party has not made full and frank disclosure with respect to a relevant issue.  

Where the overarching purpose to be achieved by our clients, the Court, and by us as legal practitioners, is the “just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”,¹ it is crucial that we turn our minds to encouraging our clients to provide early and fulsome disclosure and to handle documents relevant to proceedings appropriately to maximise the opportunity to settle matters without protracted litigation. If litigation is required, then ensuring that both parties provide adequate disclosure will commonly narrow the issues for determination by the Court. There are also serious ramifications for both our clients and us as lawyers for getting it wrong.

This paper discusses the difficulties we experience as practitioners and our professional and ethical obligations in this area. 

The client’s obligation to make full and frank disclosure

Our clients’ obligation is to “give full and frank disclosure of all information relevant to the proceeding, in a timely manner.”  

The obligation applies from the start of the proceeding and continues until the proceedings is finalised, however, must also be complied with prior to proceedings being commenced.² The obligation extends to documents which are not only in our client’s actual possession, but are within our client’s control.³

In financial proceedings, the financial statement is a starting point for considering the documents that may be disclosable.⁴ A non-exhaustive list of documents which are disclosable includes tax returns, notices of assessment, superannuation documents, business activity statements, and financial statements with respect to any entities.⁵ With respect to spousal maintenance proceedings, additional documents which may be disclosable are bank records, pay slips, and any other documents relating to the party’s income, needs and financial resources.⁶ Parties are required to file a further financial statement or brief affidavit within 21 days if their financial circumstances change significantly from that set out in their previous financial statement.⁷ 

Disclosure obligations with respect to parenting proceedings are often overlooked. In parenting proceedings, a non-exhaustive list of documents which are disclosable are criminal records of a party, documents filed in domestic violence proceedings concerning a party, medical reports about a child or party, and school reports.⁸ Further, any expert’s report (not just a single expert’s report) must be disclosed at least two days prior to the first court date or otherwise within seven days of receipt of the report.⁹ 

Redacting documents

Many clients raise concerns about safety when providing documents such as bank account statements, which reveal their general location, their employer and the places they frequently attend. However, nothing in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Rules) permits the redaction of documents.  

In one recent case, the redaction of disclosure documents contributed to a finding of deliberate non-disclosure, and the Weir principle was applied to make adverse findings against that party.¹⁰  However, there was no suggestion in that case that the safety concerns of that party were founded, and the clear inference was that those concerns were raised as a means to avoid the duty to make full and frank disclosure.

It is the writers’ view that, if documents are redacted due to safety concerns, the basis for that should be clearly set out in the covering letter and the redaction ought to go no further than the precise words required to maintain safety. Further, without the consent of the other party or an order of the Court, the redacted words ought not to be “relevant to the proceeding” in and of themselves. It will be open to the other party to apply for the production of the unredacted documents.  

Another ground upon which redaction of documents may be permitted is to prevent, for example, the privacy of third parties. While the case concerned the production of documents produced pursuant to subpoena, the decision of Luna & Luna¹¹ was a review of a Registrar’s decision upholding the objection of the wife in relation to the production of documents pursuant to subpoena. The crux of the issue was the production of records in relation to the wife’s legal practice that may identify the names of her clients and whether redaction of those names was appropriate in the circumstances.

While the wife objected to the production of documents under subpoena on a number of grounds, in relation to the issue of redaction, it was her position that, if the documents were to be produced, they be produced in a matter that did not reveal the identity of the clients of her legal practice and, therefore, that the requirement to produce the documents sought by the subpoena should be ameliorated to the extent that the wife or her legal representatives should be permitted to redact the identity of clients of the practice. It was submitted that such order was appropriate given the terms of section 118 of the Evidence Act 1995 (Cth), and rule 9 of the Australian Solicitors’ Conduct Rules 2012, and the terms of the contractual relationship between the practice, the entity, and the clients.

The husband opposed the redaction, including on the basis that the identity of the clients could be relevant to the issue of valuation, however Hogan J did not accept that submission. Her Honour was satisfied that it was appropriate, at least for present purposes, to redact the names of the clients of the practice and her Honour made directions to facilitate that occurring before production of the documents.

Privileged documents

The Full Court has confirmed that the right to claim privilege is a fundamental common law right, and the obligation to provide full and frank disclosure in the Rules does not abrogate that right. ¹²

Documents may be subject to a claim of privilege if they were brought into the existence for the dominant purpose:

1. of giving or obtaining legal advice; or
2. for use in, or relation to, litigation that is existing or reasonably anticipated.¹³

It is not sufficient for one purpose, rather than the dominant purpose, of the creation of the document to be legal advice or litigation. ¹⁴

It is the creation of the document, not the communication of it, that is relevant. Merely because a document was provided to a lawyer does not cause privilege to attach to it, even if it was provided for the purposes of obtaining legal advice. ¹⁵ Accordingly, it is important that covering communications are considered separately from any attachments, because a successful claim over communications does not necessarily extend to any attachments.

The existence of documents to which a claim of privilege attaches must be disclosed, however, a copy need not be produced.¹⁶ If the other party challenges the claim of privilege, the party making the claim must, within seven days of the challenge, file an affidavit setting out the details of the claim, which the Court may then determine.¹⁷

It is important that the basis for the claim of privilege is given in respect of each individual document, where privilege attaches to documents individually, rather than classes of documents as a whole.¹⁸  That evidence must be specific as to the facts surrounding the creation of the document, not conclusionary.  

For example, in Strahan,¹⁹ it was deemed to be conclusionary for the party to attempt to justify its claim for privilege on the basis that the document was created “for the purpose of seeking and giving professional advice” rather than deposing to the particular circumstances of the creation of each document. In Barnes, ²⁰ it was insufficient for only the contents of the documents to be described, for example, “Providing background information in relation to Mr and Mrs Barnes and their financial affairs”, except where the descriptions were very clearly on their face relating to legal advice, for example, “Facsimile attaching copies of Eversheds questions to Minter Ellison”.

A document’s status as privileged may be lost through express or implied waiver by the client.  

Most obviously, privilege may be waived by the party who has the benefit of the privilege consenting to produce the documents.

However, privilege may also be lost by the client conducting themselves in a manner which is incompatible with maintaining privilege. Some examples of the loss of privilege through conduct in a family law context are as follows:

1. seeking that a financial agreement be set aside on the basis of fraud, unconscionable conduct, duress, misrepresentation etc, where a client puts their state of mind in issue²¹; 
2. deposing to not receiving legal advice with respect to an issue²²; and
3. deposing to the contents of legal advice, for example, evidence from clients that “My lawyers told me that…” or “On the basis of advice from my lawyers I…”, or correspondence from a lawyer to the effect of, “I have advised…”.²³ 

Inadvertently destroying evidence

It is obvious that we should not encourage our client to suppress or destroy evidence which may be relevant to their proceedings. However, we set out below some less obvious examples of conduct that could be considered to be destroying evidence:

1. deleting social media stories, posts or comments;
2. deleting or unsending messages; 
3. deleting photos which go to facts in dispute; 
4. destroying documents in the ordinary course of business or personal bookkeeping, for example, documents more than seven years old.

What happens if a client falls short of their disclosure obligations?

It is important that disclosure obligations are adhered to strictly and on an ongoing basis. The consequences for not doing so are severe.

With the commencement of the new Rules, all parties to financial proceedings are required to sign and file an undertaking as to disclosure before the first return date confirming that they have given full and frank disclosure to that date and will continue to do so.²⁴ It is an offence to sign a false undertaking, attracting a penalty of 50 penalty units.²⁵  Breaching that undertaking can attract contempt and/or contravention consequences.²⁶

An application can be stayed if full and frank disclosure has not been provided prior to commencing proceedings,²⁷  the Court may make adverse findings on a final basis against a party who has deliberately failed to make full and frank disclosure which can result in assumptions as to the property pool or it may be relevant to the just and equitable division of the property pool,28 and cost consequences can follow from non-disclosure at any stage of a proceeding.²⁹

The party will be prevented from providing the document or its contents at a hearing or trial without the other party’s or the Court’s permission, and some or all of their case may be stayed or dismissed.³⁰ With respect to an expert report in a parenting proceeding, it may not be used and the expert cannot be called as a witness at the hearing or trial without the other party’s or the Court’s permission.³¹

At the extreme end, the parties’ application before the Court may be struck out and they may be precluded from cross-examining the other party.³²   

Further, contravention proceedings and consequences can follow from failing to comply with disclosure orders. In a recent decision,³³ the father was held to have no reasonable excuse for his failure to comply with disclosure orders. He was placed on a bond, and then failed to comply with disclosure orders despite the bond. The Court was satisfied that a fine was unlikely to cause his compliance with the disclosure orders, and instead the father was sentenced to a six-month term of imprisonment which was wholly suspended on the condition that he complied with his disclosure obligations within a particular period.

If non-disclosure comes to light after the conclusion of the proceedings, it may jeopardise the finality of the final orders. Particularly, it may cause financial orders to be varied or set aside,³⁴ or it may constitute a material change in circumstances for the purposes of a party seeking further parenting orders.³⁵

Our obligations with respect to disclosure

Obligations with respect to disclosure rest with us as practitioners, as well as our clients. Some of our fundamental ethical duties are to avoid any compromise to our integrity and professional independence, to deliver legal services competently and diligently, and to not mislead the Court.³⁶ Equally, one of the overarching purposes of our Court is to resolve matters quickly and inexpensively.³⁷

There is therefore a tension between minimising a client’s costs by relying on their instructions as to the information and documents that are relevant to the proceedings, undertaking a more detailed enquiry of your client, and gathering independent documentation where possible to verify their instructions, to ensure that they have made full and frank disclosure.

We have an obligation to advise our clients of their duty to make full and frank disclosure, and of the possible consequences of breaching that duty, both before and after proceedings are commenced.³⁸ Costs consequences against us personally can follow if we fail to do so.³⁹

The Court has acknowledged that a client “cannot be expected to realise the whole scope of [their disclosure] obligation without the aid and advice of his [or her] solicitor”.⁴⁰ In that matter, a supervising partner was required to pay a costs order personally when inadequate discovery was made. The Court referred to the “peculiar duty” of the lawyer in those circumstances to carefully investigate the position and see that any orders for discovery are complied with.  

Further, professional consequences can flow from relying on our client’s instructions without appropriately independently verifying them. Personal costs orders have been made against solicitors in circumstances where they did not appropriately verify the contents of court documents before filing them, on the basis that it was a breach of their ethical obligations.⁴¹ Failing to do so may also expose us to allegations of negligence and/or professional misconduct.

The risk in our jurisdiction is that we are often taking instructions from laypeople about complex issues. How are their numerous entities structured and why? Are the loan accounts recorded in the books of their company compliant with Division 7A? What steps did Child Safety take, what findings did they make and what was the final outcome? Was the protection order made after a contested trial, or was it made by consent without admissions? Further, even the most sophisticated of clients is prone to mistakes or misremembering.  

However, errors in the instructions on which we rely can have devastating consequences. A misstatement of the findings in or outcome of a domestic violence or criminal proceeding in a parenting application can damage a party’s credit. A misstatement of the legal owner of an asset in property settlement orders can have significant taxation consequences.  

Practitioners should consider making the following independent enquiries where relevant:

1. In parenting matters:

(a)    subpoenaing or requesting criminal/domestic violence records if one party has such a history;
(b)    subpoenaing or requesting medical files if one party or a child has a relevant diagnosis;
(c)    enquiring what medical practitioners a child may have attended upon and what reports may have been prepared, to ensure that all relevant reports are available.  

2. In financial matters:

(a)    requiring and thoroughly considering sufficient documentation to establish the significant assets and liabilities and the legal owner of each independently, particularly documents such as trust deeds;
(b)    contacting accountants directly to discuss and verify the entities in which the parties have an interest, and the structure of them;
(c)    conducting public searches such as ASIC searches (personal name, company, relationship), title searches, RP Data searches and ABN/Super Fund Lookup searches; 
(d)    obtaining source documents including ATO account information that might shed light on a client’s financial situation including superannuation accounts and the lodgment of tax returns.

If an issue is outside of our expertise, we should consider talking to another professional advisor to the client, for example, their accountant. It may also be necessary to seek an expert opinion, for example, with respect to the possible taxation consequences under Division 7A, or the psychological impact on a child of being exposed to a parent’s criminal offending. 

If a client refuses to provide instructions to make such enquiries, we must consider:

1. obtaining an indemnity from the client confirming that their refusal to provide such instructions limits the accuracy of the advice that we can provide and confirming that no such advice has been given by the practitioner themselves; or
2. if the issue is significant, withdrawing, which is discussed further below.

When a client refuses to make full and frank disclosure

Clients often expect that, following separation, they will have a right to privacy from their former spouse. They consider it an offence to that right of privacy to be required to disclose on an ongoing basis private information such as their bank records and medical reports. Disclosure is also a costly, time consuming and tedious task, often with no end in sight, and some clients may consider it sufficient to provide disclosure to the other party about “major issues”, making a judgment call on the things that “don’t matter”.  

Sadly for those clients who think that their affairs should remain private from their former spouse, the Court does not share that view and, indeed, will not take a sympathetic view to any non-disclosure on those grounds.

Where full and frank disclosure is the cornerstone of settling matters quickly, and serious consequences can follow for non-disclosure, it is crucial that we ensure that our clients are meeting their obligations and, if not, we are meeting our own professional and ethical obligations.

Of course, our duty to the Court and to the administration of justice is paramount, and prevails over our obligations to our client.⁴² Practically, that means that we cannot:

1. permit or assist our client not to disclose a document which falls within their obligation to make full and frank disclosure, even if it does not assist their case; or 
2. write letters or file court documents which we know to be inaccurate.

In a civil case in Victoria, the Court held that a lawyer had misled the Court by failing to draw the Court’s attention to the existence of a third report commissioned from an expert, the inference being that it was unhelpful to their case.⁴³

In another matter in Victoria,⁴⁴ the Court found that a failure to discover a document was intentional by the solicitor and the solicitor faced disciplinary proceedings.

The Court stated that:

“It is difficult to overstate the importance to the administration of justice of the paramount duty of a legal practitioner not to mislead the Court. Where there is any conflict, or risk of conflict, between that duty and what the practitioner perceived to be his/her duty to the client, the duty to the Court must always prevail. Nowhere is the risk of conflict more likely to arise than in relation to the obligation to make discovery. Discovery is, of course, the obligation of the client, but the client inevitably depends upon the advice of the legal practitioner as to what is, and what is not, discoverable and as to the availability of any claim for privilege.”

In the family law context, in Lambert & Jackson⁴⁵  the Court made a finding against a solicitor, referred to as Ms Y, that her conduct fell short of her ethical obligations and ultimately a costs order was made against her personally in the following circumstances:

1. Ms Y acted for the husband in a property settlement matter. The husband conducted a business with a business partner.
2. There was prima facie evidence that on 6 August 2009 Ms Y and the husband met. The Judge inferred that they concluded that it would not be advantageous in the case for the husband to disclose his arrangements with his business partner because it would inevitably cause a revaluation of his interests, and they concluded that that valuation would lead to a higher value being attributed to the business.  
3. During that meeting, Ms Y and the husband called the husband’s commercial lawyer. The central purpose of that phone call was eliminating the risk of discovery by the wife and the Court of the agreement which had been reached between the husband and his business partner or, alternatively, structuring the documentation so it appeared that the negotiations continued, when in reality an agreement had been reached.
4. Ms Y electronically filed an undertaking as to disclosure, prepared by her and signed by the husband. Ms Y had signed the certificate that she had provided the requisite advice with respect to the undertaking.
5. Ms Y prepared an affidavit by the husband and took the husband’s oath before he swore that affidavit. The primary purpose of the affidavit was to address allegations that the husband had failed to make full and frank disclosure. However, the affidavit did not disclose the agreement which had been reached between the husband and his business partner. 
6. Ms Y also prepared and took the husband’s oath for his financial statement. That financial statement also did not disclose the agreement that had been reached between the husband and his business partner.
7. Ms Y instructed counsel for the husband at the hearing and was present at the bar table during the four days of the hearing. She was present when the husband gave false oral evidence about the agreement which had been reached between him and his business partner. Prima facie, Ms Y knew that the evidence was false but remained silent and continued to act for the husband to the conclusion of the hearing. 
8. The information ultimately came to light when the husband’s commercial lawyers were subpoenaed by the wife.  

Ms Y was directed to give evidence as to whether the matter should be referred to the LSC. In a separate costs judgment, the Court said:

“I find that [Ms Y] breached her ethical obligations as a solicitor and her duties to the court…  I conclude that [Ms Y]’s acts were intentional and were of the most serious kind. [Ms Y] deliberately contrived to conceal important and relevant financial information from the court. The husband embarked upon a course of action which was aided and abetted by [Ms Y]... The sole purpose of acting in that fashion was to increase the likelihood that the husband would receive a more favourable outcome but the method employed was one that undermined the integrity of the proceedings.”

Ms Y was ordered to pay a fixed sum with respect to the wife’s costs, on the basis that Ms Y’s conduct had increased the wife’s costs of the proceedings.  

The pre-action procedures confirm that if a client “wishes not to disclose a fact or document that is relevant to the proceeding, [we have] an obligation to take the appropriate action; that is, to cease acting for the client.”

However, a client’s failure to follow our advice does not always give rise to a necessity to withdraw.  The Court has rejected that a solicitor “must cease acting for a litigant simply because that litigant refuses to follow the solicitor’s advice.”⁴⁶  What must be present is an incompatibility between a solicitor’s duty to the Court and the duty to the client.  

When a client delivers suspicious documents 

Where there are clear ethical obligations with respect to documents that have been obtained improperly, and serious ramifications for you and your client if they are not complied with, it is important that you address the source of any suspicious documents directly and immediately with your client.  

It is commonly known that opening post addressed to another person and gaining access to a person’s online accounts without their consent are Commonwealth offences,⁴⁷  but what do we do when our client has done so and now has documents or information relevant to the proceedings?  What about documents left by one spouse in the former matrimonial home in which our client resides, or documents or information obtained by our client from their former spouse’s online accounts because they hold the password from during the relationship?

Rule 31 of the Australian Solicitors’ Conduct Rules is the starting point for any material which may have been disclosed inadvertently. It applies when:

1. we know or reasonably suspect that material disclosed to us is confidential; and
2. we are aware that the material was disclosed inadvertently.

In those circumstances, unless we are otherwise permitted or compelled by law, we must not use the material and must:

1. if we read the material before becoming aware of its confidential nature, stop reading the material immediately that its confidential nature becomes apparent to us;
2. return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and
3. notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material.

Further, if we are instructed by a client to read confidential material received in error, then we must refuse to do so.

In a family law context, any document that would not ordinarily be within your client’s possession or control should be cause for taking further instructions. Where the ethical obligations arise if we “reasonably suspect” that the material is confidential, it is not sufficient to rely on a lack of actual knowledge that the document was obtained improperly.

One case in particular demonstrates just how severe the consequences can be if we fail to meet this obligation. In Crittenden & Collins,⁴⁸  a law firm was restrained by the Court from continuing to act for their client in the following circumstances:

1. In May 2014, final property settlement orders were made by consent.  
2. In May 2015, a year later, the wife applied to set aside the orders.  Her daughter was appointed her litigation guardian. In September 2016, her daughter discontinued the proceedings by consent with the husband without reference to the wife.
3. Shortly after the proceedings were discontinued, the daughter gave a number of documents to the husband. It was clear from the face of the documents that at least some of them were subject to legal professional privilege, including advices between the wife’s lawyers to the daughter about the wife’s prospects in the first proceedings.  
4. In September 2016, the wife again applied to set aside the orders, and this time conducted the litigation on her own behalf.
5. In November 2016, the husband emailed the confidential documents to his solicitor.   
6. The husband’s solicitors obtained advice from Senior Counsel in January and March 2017.
7. In April 2017, some five months after the documents were sent to the husband’s solicitors, they emailed the wife’s solicitors letting them know that they held documents that contained legal advice and provided copies of those letters only. They did not disclose that they held other documents in addition to those that were privileged.  
8. The husband’s solicitors obtained further advice from Senior Counsel in May 2017.
9. Then the husband’s solicitor emailed the wife’s solicitor providing copies of the balance of the documents, being emails between the daughter and the husband, and an email from the husband to the wife’s solicitors.
10. The wife’s solicitors called upon the husband’s solicitors to withdraw, which they refused to do. 
11. In June 2017, the husband’s solicitors confirmed that:

(a)    they no longer held any copies of the confidential documents;
(b)    only one solicitor had opened and read the documents;
(c)    the relevant solicitor offered an undertaking not to:

(1)    disclose the confidential information; or
(2)    have any involvement in the matter.

12. The wife’s solicitors did not accept the undertaking and instead made an application for the firm to be restrained from acting for the husband.
13. In July 2017, the file was transferred to a partner of the firm and undertakings were sent to the Court for filing.  
14. No enquiries were made by the husband’s solicitors of the husband as to whether he still had the confidential documents. The solicitor conceded that she had not given him advice to destroy them. It became apparent in cross-examination that he did continue to hold the documents. 

Notwithstanding that the husband’s solicitors had been acting for him for a “considerable time” and the proceedings were at an advanced stage, the husband was restrained from continuing to instruct the firm. The husband was also restrained from using the information he had obtained from the confidential documents.  

The Court determined that:

1. Rule 33 of the Australian Solicitors’ Conduct Rules may not strictly apply in these circumstances because the disclosure was not inadvertent. The daughter had intended to provide the documents to the husband. However, regard should have been had for the wife’s dissatisfaction with her daughter’s conduct of her proceedings as her litigation guardian, and that the wife herself had not disclosed the documents.  
2. Notwithstanding that Rule 33 may not strictly apply, the “intended mischief to be addressed is absolutely clear.” Rule 33 is merely “an example of professional, ethical obligations of legal practitioners supporting the objective of the proper administration of justice.” The Court did not approve of the husband’s solicitors’ narrow reading of their ethical obligations.
3. The husband’s solicitor’s actions were too little too late. Although only one solicitor read the documents, by continuing to act she may have tainted the knowledge of other solicitors and administrative staff who assisted her.
4. The following actions should have been taken by the husband’s solicitors, and only then the husband’s solicitors “might have” been able to resist the injunction:

(a)    they should have informed the wife’s solicitors that they held the documents immediately upon their receipt;
(b)    all of the documents should have been provided to the wife’s solicitors, with a request as to whether privilege was claimed over the relevant portion of the documents;
(c)    the husband should have been advised to destroy the documents in his possession and ensure all copies were destroyed;
(d)    the particular solicitor who read the documents should have ceased acting; and
(e)    the information barrier and undertakings should have been put in place.

The Court directed that the parties file submissions with respect to costs if no agreement could be reached. Although there is no further judgment in the case, the writers consider it probable that the firm contributed to the wife’s costs by consent.  

It is not necessary for the material to be the subject of legal professional privilege to be considered confidential. A plain reading should be taken of this term, being any information which is private in nature and not otherwise readily attainable, for example, through public searches. In considering the meaning of this term, the Court has held as follows:⁴⁹ 

“It is of importance to observe that information generally is not protected; the protection available relates to confidential information, and is available to the person entitled to the confidence… Confidential information which once existed may no longer be confidential”

There has been little judicial consideration as to the meaning of the term “inadvertent” in this context.  In the writers’ view, it is inarguable that documents obtained improperly (for example, by accessing an online account without the party’s consent, or by taking the documents from someone else’s home or office) have been obtained inadvertently. Although it is arguable that the obligations on us may be less clear in circumstances such as:

1. documents left behind at the former matrimonial home upon separation; and
2. documents obtained legitimately by an ally, for example, through their employment, and provided to your client,

the Court in Crittenden & Collins were unimpressed by submissions by the husband’s solicitors as to the semantics of Rule 31, and referred more broadly to our obligations to the proper administration of justice. A plain reading of the word would include any material obtained other than by the deliberate actions of the other party. It is the writers’ views that the word must be taken at its highest to support the objective of the proper administration of justice.  

There is no exemption from the above requirements merely because the document or information is disclosable by the other party and they have not done so. Using the information to then compel the production of the specific document or information, for example by subpoena, would be an improper use of that information.  

It is therefore crucial that we consider the source of any document we are directed to read where, if we fail to do so, we may be required to cease acting for our client.  

Using documents from proceedings – section 121

It is often the case that documents in our client’s possession as a result of court proceedings or anticipated court proceedings – such as disclosure, subpoenaed documents and expert reports – become relevant in other processes – for example, for departure applications with respect to child support assessments. Section 121 is often referred to in these circumstances. 

Section 121(1) may be one of the more misunderstood sections in the Family Law Act 1975 (Cth). It provides that:

“A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b)  a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)  a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.”

While much attention is giving to what cannot be disseminated, little attention is given to how.  Section 121 restricts the dissemination of information:

1. by publishing it in a newspaper or periodical publication; 
2. by radio broadcast or television by other electronic means; or
3. otherwise to the public or to a section of the public by any means.

The Court has confirmed that the phrase “disseminates to the public” should be taken as a reference to a widespread communication with the aim of reaching a wide audience,⁵⁰ and could not extend to:

1. a conversation with a close personal friend,⁵¹ counsellor or therapist;⁵²
2. the use of documents in other court proceedings;⁵³ 
3. providing documents to the Australian Tax Office;⁵⁴
4. providing a family report to an expert retained in the proceedings;⁵⁵
5. providing copies of judgments to child welfare authorities;⁵⁶
6. providing copies of judgments and orders to contact centres.⁵⁷

However, warnings should be given to clients about ventilating their court proceedings on social media, where such posts would fall within disseminating information to the public or to a section of the public.  

The Harman obligation

The Court has held that the obligations in section 121 sit side by side with the Harman obligation.⁵⁸ That is, the Harman obligation must be considered separately, and may apply even where section 121 does not apply or an exception applies.  

Broadly, there is a common law obligation not to use documents obtained by a party in proceedings, or the information contained in them, for other purposes.  

This common law obligation referred to as the Harman obligation and described in Hearne v Street⁵⁹ has been codified in rule 6.04 of the Rules. It prevents any person from using a document which relates to a proceeding for any purpose other than the proceeding, and from disclosing the contents of a document or giving a copy of a document to any other person. The obligation extends to any person in possession of such documents, including lawyers. The exemptions contained in that Rule are:

1. if the person has a common interest in the document;
2. if the person has obtained the Court’s permission;
3. a solicitor giving the document or its contents to his or her client or to counsel; and
4. a person giving the giving the document or its contents to his or her solicitor or counsel.

The purpose of the obligation is to ensure that litigants’ right to privacy is infringed only to the extent that justice requires, and to encourage compliance with production obligations.  

The common law Harman obligation ceases upon the document being read in court proceedings, on the basis that the information is no longer confidential. However, where R6.04 does not include any such exception and section 121 otherwise prevents the publication of court documents to the public, such exception does not apply in family law proceedings.⁶⁰

The exception relating to “common interest” was introduced in the new Rules and has not yet been judicially considered. It is arguably a broad term. It is the writers’ view that “common interest” should be interpreted as referring to documents which are otherwise within the person’s power or control separate to the proceedings – that is, the Harman obligation does not extend to documents to which the person is separately entitled to disclose, notwithstanding that it may have come into their possession through the court proceedings.   

The Court has determined that providing documents to professional advisors other than legal practitioners does not require the permission of the Court,⁶¹ and neither does providing copies of a court order to any person. 

In Pedrana & Pedrana (No 2),⁶³ the Family Court of Australia (as it then was) considered whether a party could provide disclosure documents to the Child Support Registrar in a departure application. In doing so, it considered authority that “the implied obligation must yield to inconsistent statutory provisions”.⁶⁴

Ultimately, it was satisfied that the Harman obligation yielded to the child support statutory framework such that the documents were not the subject of a Harman obligation, including on the basis that:

1. the Child Support Registrar must make a determination as to the assessment and it is entitled to request documents to do so;
2. parties to an assessment owe a duty of full and frank disclosure to the Child Support Registrar;
3. secrecy provisions apply to documents obtained by the Child Support Registrar;
4. 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
5. 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.  

Where the Harman obligation does apply, in considering whether documents ought to be released from such obligation, the Court must consider whether there are special circumstances that justify it in doing so. For special circumstance to exist, there must be “a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present”,⁶⁵ however, the reason need not be extraordinary, merely a good reason.⁶⁶  The Court will consider the following factors:⁶⁷

1. the nature of the document;
2. the circumstances under which it came into existence;
3. the attitude of the author of the document and any prejudice the author may sustain;
4. 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);
5. the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
6. the circumstances in which the document came into the hands of the applicant for leave; and 
7. “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   

Examples of where the Court has permitted the release of documents from a Harman obligation in order to use documents from family law proceedings for other purposes are as follows:

1. to use affidavits sworn in family law proceedings for the purposes of Supreme Court proceedings, where the witness had since passed away. The Court granted the use of the documents where it was plainly in the interests of justice to do so;⁶⁹ 
2. to use a child impact report in protection order proceedings, where the subject child had given a statement to the family report writer which conflicted with the mother’s account in her protection order application.⁷⁰ In that matter, the Court found it compelling that the child impact report could have a significant impact on the outcome of the protection order proceedings;
3. 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;⁷¹ 
4. 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;⁷² and
5. too provide a family report to medical practitioners or therapists after the conclusion of the proceedings.⁷³  

Careful consideration must be given to whom documents and information are provided, where the Harman obligation is owed to the Court and, accordingly, a breach of the obligation is a contempt of court.

Because the common law Harman obligation is in fact an undertaking to the Court, and consent of the parties is not a relevant exception to R6.04, the Court’s leave is required. However, where the issue arises, it may be possible to deal with the issue by a joint letter to the Court seeking an order by consent. Otherwise, an application must be made.  

Conclusion

It is important that, as legal practitioners, we exercise independence in considering our ethical and professional obligations surrounding our client’s disclosure and the use of documents and ensure that we do not lose sight of those obligations in the context of following our client’s instructions.

If you are unsure about the appropriate course of action, you should contact the Ethics Centre of your Law Society for advice.  

1. Federal Circuit and Family Court of Australia Act 2021 (Cth), s 67.
2. Rule 4.01, rule 6.01 and Schedule 1 of the Rules.  
3. Rule 6.03 of the Rules.  
4. Rule 6.06 of the Rules.  
5. Rule 6.06(8) of the Rules.  
6. Rule 6.06(9) of the Rules.  
7. Rule 6.06(7) of the Rules. 
8. Rule 6.05 of the Rules.  
9. Rule 7.14 of the Rules.  
10. Haines & Rader (No 4) [2022] FedCFamC1F 1008, [280]-[282].
11. [2021] FedCFamC1F 343
12. El Rashidy & El Rashidy (2020) FLC 93-944, [56].
13. Strahan & Strahan & Commissioner of Taxation (2013) FLC 93-570.
14. Barnes v Commissioner of Taxation (2007) 242 ALR 601, [18].
15. Strahan & Strahan & Commissioner of Taxation (2013) FLC 93-570.
16. Rule 6.15 of the Rules. 
17. Rule 6.16 of the Rules.
18. El Rashidy & El Rashidy (2020) FLC 93-944.
19. Strahan & Strahan & Commissioner of Taxation (2013) FLC 93-570.
20. Barnes v Commissioner of Taxation (2007) 242 ALR 601, [18].
21. Bell & Bell [2009] FMCAfam 595.
22. Bilal & Omar (2015) FLC 93-636.
23. Bell & Bell [2009] FMCAfam 595.
24. Rule 6.02 of the Rules.  
25. Rule 6.02 of the Rules.  
26. Rice v Asplund (1979) FLC 90-725, 78,905.
27. Rule 4.04 of the Rules.
28. Weir v Weir (1992) 16 FamCA 69.
29. Penfold v Penfold (1980) HCA 4; R4.04 of the Rules.
30. Rule 6.17 of the Rules. 
31. Rule 7.17 of the Rules.
32. Tate & Tate (2000) FLC 93-047.
33. Coalter & Loxton [2021] FedCFamCIF 283.
34. Family Law Act 1975 (Cth), s 79A & 90SN.  
35. Rice & Asplund (1979) FLC 90-725.
36. Australian Solicitors’ Conduct Rules, R4.
37. Federal Circuit and Family Court of Australia Act 2021 (Cth), s 67.
38. Schedule 1 of the Rules.  
39. R12.15 and Schedule 1 of the Rules.  
40. Myers v Elman [1940] AC 282.
41. White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169.
42. Australian Solicitors’ Conduct Rules, R3.
43. Hudspeth V Scholastic Cleaning And Consultancy Services Pty Ltd & Ors (No 8) [2014] VSC 567, [195] – [204].
44. Guss and Law Institute of Victoria [2006] FSCA 88.
45. Lambert v Jackson & Anor [2010] FamCA 357; Lambert v Jackson & Anor [2011] FamCA 275.
46. Millhouse & Mullens [2015] FamCA 754, [38].
47. Criminal Code Act 1995 (Cth), ss 471.1(1) & 478.1(1).
48. [2017] FamCA 716.
49. Mancini v Mancini [1999] NSWSC 800, [7]; cited with approval in Osferatu& Osferatu (2015) FLC 93-666. 
50. Re Edelesten (a bankrupt); Donnelly v Edelsten & Ors (1998) 12 FamLR 294; cited with approval in Jess & Jess [2021] FedCFamC1F 24.
51. Re Edelesten (a bankrupt); Donnelly v Edelsten & Ors (1998) 12 FamLR 294; cited with approval in Jess & Jess [2021] FedCFamC1F 24.
52. Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020, [17].
53. Dunn & Dunn (No 2) [2022] FedCFamC1F 76.
54. Commissioner of Taxation & Darling (2014) FLC 93-583.
55. In the matter of P (a child) (1993) FLC 92-376, 79,895
56. Re W: Publication application (1997) FLC 92-756, 84,262.
57. Oscar & Traynor [2008] FamCAFC 158, [62].
58. Adair & Adair [2021] FEDCFAMC2F 333, [28].
59. (2008) 235 CLR 125.
60. Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020, [37].
61. Halstron & Halstron [2018] FamCA 887.
62. Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020, [41].
63. [2012] FamCA 348.
64. Esso Australia Resources Limited v Plowman (1995) 183 CLR 10, 33.
65. Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217.
66. Liberty Funding v Phoenix Capital Ltd (2005) 218 ALR 283, 289-290.  
67. Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217.
68. Australian Trade Commission v McMahon (1997) 73 FCR 211.
69. R Pty Ltd v Jones [2016] FamCA 928.
70. Miller & Murphy [2016] FCCA 974.
71. McManus & Bracken [2021] FedCFamC2F 206.
72. Zarins v Mylne (No 3) [2013] FamCA 737.
73. Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020, [38].