NSW Dissemination of Family Court Documents - Help?

Discussion in 'Family Law Forum' started by Unknown entity, 13 July 2018 at 2:08 PM.

  1. Unknown entity

    Unknown entity Well-Known Member

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    Hi legal brains,

    Can I use without leave of the court discoverable documents made part of the compulsory Family Court processes and court orders and enter those documents into evidence in an Administrative Appeals Tribunal (AAT)?

    I know that a defence is that as long as the documents are only disseminated to a section of the public (2 persons only) involved in the hearing of the AAT that breach of S121 does not occur.

    So, yes S121 restricts dissemination of Family Court documents, but if they were only entered into evidence in an AAT hearing, does this remove any breaches of S121
     
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  2. Lennon

    Lennon Well-Known Member

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    It would be a breach of S121 and a breach of the implied undertaking. You can’t use the documents for any purpose other than the proceedings in which they were filed.
     
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  3. Unknown entity

    Unknown entity Well-Known Member

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    Thanks Lennon, I saw some of your prior responses in other threads which were insightful and guided me towards the paths in regards to Harman Obligstions.

    If hyperthetically a party to a hearing had disseminated well over 10 discoverable documents made compulsory as part of a parental case (now discontinued) and used these documents having been made as part of the Court compulsory processes had been used for financial gains through CSA would would happen to that person if found to be in breach of Implied Undertakings and found to be in contempt of court. How hard you the magistrate come down on party and their council

    In essence, how seriously is this really treated. Could for example a lawyer be suspended
     
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  4. sammy01

    sammy01 Well-Known Member

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    Not worth the effort mate.
    And sometimes CSA will ask for documentation to demonstrate parenting arrangements. Back in the day when I had court orders that had a clause in there about not disseminating the info to others, I didn't even think that showing CSA the documents that showed parenting arrangements was wrong. They asked for them, I gave them...

    I do think the intention of the non-dissemination is more to do with showing them to friends / family or what ever in a disparringing way.... If the intent was to hurt / damage your reputation, as in, ha ha, he only got 4 nights a fortnight when he wanted 5.... But showing to a govt agency for the purpose of determining a child support case if the other parent didn't agree, when that is different NO?
     
  5. Unknown entity

    Unknown entity Well-Known Member

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    No Sammy, as poster Lennon pointed out, there is an onerous obligation to the court not to disclose documents (dissemination) to third parties, this is an undertaking to the court and commonly known as “Implied Undertaking or the Harman Obligations. A party to a case must seek leave of the court to disseminate any document made part of the compulsory court process, failure to do so will result in breach of the Implied Undertaking and thus, contempt of court.

    Even if leave of court was grated, only the relevant information contained in a document can be passed onto CSA or other third parties, this is known as redacted information. Third parties if received court documents are further in a privileged position and can not forward those documents received as a result of leave of court.

    In short, your obligation under the Harman Obligation is to the court, not the parties or any other third party.

    There are exceptions to the Harman Obligations in use of documents out side of court. For example, if the documents were entered into evidence during a trial, the Harman Obligation falls away but S121 of the Family Law Act (1975) may still apply in some instances.

    Thanks for your response, appreciated.
     
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  6. sammy01

    sammy01 Well-Known Member

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    Yep - still not worth it... So assuming final orders, and look even if they are not final I think same applies... And I'm a little uncertain of your purpose here... Reading between the lines (always dangerous, so sorry if I've got it wrong)... But providing documents to CSA or AAT whilst might technically be a breach of the orders; my advice is still the same. Waste of time. It is not worth applying to court for a contravention because the ex provided these documents to CSA or AAT. So while you're in the right as far as the letter of the law goes, I doubt the court would punish the other parent for providing those documents.

    So - after re-reading your posts. You want to know how hard a magistrate would go on someone for providing documents to CSA? My answer feathers, that is how hard... So like i said, while being technically right, there is a breach, it aint worth the effort.

    Another way of looking at it... CSA accepted the documents and used them to make a decision? I'd have thought CSA would have to make a determination to either refuse to accept the documents as evidence or accept them. And they appear to have accepted them.

    Short version, sadly. You're right. BUT a magistrate will do very little more than warn the ex not to do it again.... so waste of time.
     
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