Harman Undertaking & Duty of Disclosure in Family Law

During your divorce or parenting case in Australia, both parents have a duty of disclosure. You share documents with each other so you can work off the same set of information. This allows you to adequately prepare for your case.

Whatever you learn through disclosure, you must keep within the court process. It's for your lawyer and the judge to know, and no one else. Handling this information properly is called the Harman undertaking.

List of disclosure documents in family law

Financial matters

For financial disclosure in family law, you'll need to provide wide-ranging information about matters including:

• 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 or try to disguise what it means.

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

While parents gather information to support their case, many decide they prefer not to go through an adversarial court process, and instead they write a parenting plan together.

Rule 6.06 in family law rules (financial disclosure)

Family court rules govern the disclosure process. The types of financial information you must disclose are described in detail there.

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

A parent's failure to disclose may affect the court proceedings if the court becomes aware of their omission while the case is still in progress. For example, the court could penalise the parent by restricting them from using certain evidence in their arguments.

If a final order is issued before the court becomes aware that relevant information wasn't disclosed, the court may decide to vary the order or even to set it aside.

You can inform the court if you believe the other parent isn't sharing everything required.

The importance of the Harman undertaking

If you breach this undertaking (aka promise) to properly disclose and handle information, the court can hold you in contempt. So it's important you understand this responsibility, which you automatically take on when you have a family law case.

When someone is required to disclose sensitive information (typically about finances, education or health) and the other party receives it through the court process, it's only for use only in the current case. The opposing party and their lawyer, as well as anyone else who legitimately receives the information, are not allowed to use it for other purposes.

Your undertaking as to disclosure applies to information you get through discovery, subpoenas or personal affidavits. No one can publish, share or sell what they learn during disclosure, sue each other over it, attempt to extort each other with it, bring it into another existing court case, nor otherwise attempt to profit off it.

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.

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.

Only with the court's permission can you use disclosed information elsewhere. If you'll seek permission to use it elsewhere, 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 of the information, not from another court (even if you currently have a case in another court).

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.