Harman Undertaking & Duty of Disclosure in Family Law
During your divorce or parenting case in Australia, your ex may formally disclose information to you. You must keep what you learn within the court process. It's for you, your lawyer and the judge to know, and no one else. Your responsibility to share information with each other is the duty of disclosure, and your responsibility to properly handle the information you receive is the Harman undertaking.
List of disclosure documents in family law
Sharing documents enables you both to work off the same set of information.
Financial matters
For financial disclosure in family law, you'll need to provide wide-ranging information. These matters may include:
- Investments (e.g., retirement accounts)
- Debts (e.g., credit cards)
- Your house and car
- The last three years of tax returns
- Payslips
- Bank statements
You're expected to make a "full and frank" disclosure, meaning you can't hold back details nor disguise their meaning. You must provide it "in a timely manner," as stated in the Family Law Act, and you must do so for anything that's "relevant to the issues." Legal practitioners are required to explain this to you.
Parenting matters
In parenting matters, you'll need to provide at least:
- Your child's school and medical records
- Any record of domestic abuse or criminal convictions
As parents gather information to support their case, many realize they prefer not to go through an adversarial court process. Instead, they write a parenting plan together.
Rule 6.06 in family law rules (financial disclosure)
Family court rules govern the disclosure process. They describe in detail the types of financial information you must disclose.
Most of Australia uses Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Western Australia has its own court system, and its disclosure rules are in Part 13 of the Family Court Rules 2021.
Failure to provide financial disclosure
Withholding information may affect court proceedings. If the court catches the omission, the court could penalise the parent. For example, after a parent's failure to disclose, the court can restrict them from using certain evidence in their arguments. You can inform the court if you believe the other parent isn't sharing everything required.
Even if the court issued a final order before becoming aware of a failure to disclose, the court can take action. It may decide to vary the order or even set it aside.
The importance of the Harman undertaking
In a family law case, the court expects you to respect confidentiality. You and your lawyers (plus anyone who legitimately receives information) have this responsibility. The court can hold you in contempt if you don't follow the rules.
What you can't share outside your court case
Information either of you gets through discovery, subpoenas or personal affidavits is only for use in your court case. When your ex has to share documents with you (typically about finances, education or health), you aren't allowed to reveal the information to others or use it for other purposes. Likewise, when the court requires you to disclose something to your ex, your ex must keep it within the current case.
| When two people disclose information, neither can: | |
|---|---|
| ✘ | Publish, share or sell what they learn from it |
| ✘ | Sue each other over it |
| ✘ | Attempt to extort each other with it |
| ✘ | Bring it into another existing court case |
| ✘ | Attempt to profit off it |
This is your undertaking as to disclosure. Respect these rules. Properly handle information that's been disclosed to you.
For example, if a neighbor writes a character reference letter for your ex and you get access to it through the disclosure process, you can't post it to social media. As another example, if you hear through the court process that your ex is in prison, you can't give that story to a journalist.
An exception is if the information is already public (e.g., it was read in open court). In that situation, you can't keep it secret anyway, so you don't have to.
If the court gives you permission to share information
Only with the court's permission can you use disclosed information elsewhere. To ask for permission to use it elsewhere, file a Harman application. Keep in mind:
- Informal agreements between you and the other parent don't substitute for the court's permission.
- Either of you may seek the court's permission alone, or you can submit a joint request.
- The permission must come from the court that originally required the disclosure. No other court (even if you currently have a case elsewhere) can give this permission.
Staying organised throughout court proceedings
Family court hearings require serious organisation.
You may want to present the judge with a parenting journal, messages exchanged with the other parent, a tally of parenting expenses, and more.
The Custody X Change app lets you create and manage all of this in one place. It helps you prepare for every step of your case.
Perhaps most importantly, Custody X Change helps you create parenting plans and parenting calendars. If you agree on these with your co-parent, you can forgo court entirely.
Take advantage of custody technology to get what's best for your child.
Frequently asked questions
What happens if one of us doesn't disclose information by the court's deadline?
The court may forbid you from using the document at trial. You could also be fined or held in contempt of court. Overall, the noncompliance may delay your case.
What do I do if my ex's lawyer demands that I disclose information?
If their lawyer makes a request that you disagree with or don't understand, you may want to hire your own lawyer. The request (or threat) may or may not be relevant or enforceable.
What if I suspect my ex has secret bank accounts?
You could hire a forensic accountant: someone who specializes in looking for fraud and hidden money. However, if you're trying to reduce conflict, try to talk it out with your ex. You may benefit from an alternative dispute resolution method.
If information was shared improperly, what should I do?
Consult a lawyer about how to report a violation or defend yourself against such an allegation. Improper sharing of information is called a breach of the Harman undertaking.