What is Harman Undertaking? Kuang & Kuang [2024] FedCFamC2F 1191 (29 August 2024)
In this case, the father sought permission from the court to use a redacted family report, prepared by a single expert psychiatrist, for his criminal defense. The report was originally created as part of family law proceedings regarding the welfare of the couple's two children. The father, facing criminal charges where the mother is the alleged victim, wanted to use the report in his defense and share it with his legal team, the Director of Public Prosecutions, and the police.
The court discussed the "Harman Undertaking," which prevents documents produced in one legal proceeding from being used in another without permission.
The Harman obligation was described by the High Court in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
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 types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. ...
It is common to speak of the relevant obligation as flowing from an “implied undertaking.”
The father argued that the report could contribute to the administration of justice in his criminal trial, while the mother opposed the request, citing concerns about the report’s relevance and potential impact on the children.
Ultimately, the court dismissed the father’s application, stating that he failed to demonstrate how the report would significantly contribute to his defense in the criminal case, particularly since much of the material was untested hearsay. Additionally, the court emphasized the best interests of the children, noting that allowing the report’s use could lead to delays in the family law proceedings and negatively affect the children.
This decision echoes the same principles as enunciated by the Full Court and referred to by both parties today of Littlefield & Pemble [2023] FedCFamC1A 198, that the pre-eminent consideration is whether there is a real possibility that the expert reports may contribute to the administration of justice in the father’s criminal proceedings, in particular on the following:-
No evidence was provided by the father to demonstrate that the expert is on notice as to the application for leave. The expert’s report records knowledge of the rules restricting the use of the contents of the report. The expert’s report considers and records the contents of a raft of other documents, including documents produced on subpoena originating from sensitive sources including the Police and the Department of Communities and Justice. The expert interviewed various third parties including the children’s principal and school counsellor and the mother’s domestic violence counsellor.
The father has not established how an untested hearsay opinion based from material that would not appear to be adduced in the criminal proceedings (and grounded from exchanges from people that may not give evidence in the criminal proceedings) will likely contribute to achieving justice.
The father has not established how untested alleged conversations that are potentially hearsay and given with the assistance of an interpreter will likely contribute to achieving justice. There is no evidence that the father proposes to call the single expert as a witness in the criminal proceedings.
The father has not engaged in any meaningful manner with the best interests of the children, both of whom were interviewed for the purposes of the report. There is no evidence as to how the release of this report to be used in the father’s criminal proceedings will impact on the children. I accept the mother’s submissions that in the event the single expert were to give evidence in the father’s defence in the criminal proceedings it would be inappropriate for him to continue as the single expert in these proceedings. This would cause significant delay in the parenting proceedings and the children’s involvement in the preparation of a second expert report. This is not in their best interests.
Reference: Kuang & Kuang [2024] FedCFamC2F 1191 (29 August 2024)