Featon & Featon 2020 FamCA 1061
The case of Featon & Featon [2020] FamCA 1061 is a case which gives us a typical use of the need to be released from the Harman undertaking.
The Harman undertaking is often called an “implied undertaking”.
At paragraph 6 of this decision, the court said:
“The scope of the implied undertaking was described by the High Court of Australia in Hearne v Street 235 CLR 125 at paragraph [96]:
- Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.”
The court then went on to describe the types of documents that were disclosed pursuant to the principle.
In this case, the father had been charged with three counts of sexual and indecent offending in relation to the parties’ female child. The mother is to be a witness for the prosecution in the criminal proceedings.
In the family law proceedings, the mother has filed a number of affidavits, and subpoenas have been issued to medical practitioners, clinics, and counselling organisations for the production of their records of attendances with the mother.
The father wanted to be able to provide the affidavit sworn by the mother, and the documents produced in answer to the subpoena, in his criminal case.
The judicial officer in this case determined that the father would be released from the undertaking.