During financial proceedings before the Family Court, each party has a duty to disclose documents, evidencing their financial position so that a family law property settlement can be negotiated. It is likely that you will have to exchange and come into possession of your former partner’s bank account and credit card statements, taxation returns, pay slips and superannuation statements.  

In addition, when parties have financial proceedings before the Family Court, they are required to file a document called a Form 13 Financial Statement. Sometimes, the information provided by a party on the Form 13 Financial Statement can be different to what that party has told the Child Support Agency about their financial circumstances. 

Sometimes, parties think it is okay to provide documents that they have received from the other party to other people or the Child Support Agency. This is incorrect and you may find yourself in trouble if you share documents obtained in Family Court litigation or Family Law negotiations, for other purposes unless the Family Court has given you permission to do so.  

The reason why you cannot provide your former partner’s documents outside of the Family Court proceedings is because of the Harman principle, or Harman Undertaking as it is sometimes referred to. 

So, what is the Harman Principle?  

The Harman Principle (or Undertaking as it is referred to at times), was established in 1983 in the case of Harman v Home Department State Secretary [1983] 1 AC 280. Basically, the Harman Principle is an implied obligation that parties to proceedings will not use documents obtained in litigation for any other purpose.  

The reason that the Harman Principle exists is to encourage parties to Family Court proceedings to provide full and frank disclosure, without fear of it being used against them in other proceedings.  

Since the Harman Principle, the Family Court has also made special rules about the use of documents, which applies to all parties in Family Law matters. If you would like to review the specific rule for yourself, it is Rule 203 of the Family Court Rules 2021. 

Only the Family Court can discharge the Harman Principle in Family Law matters, meaning that even if the other party gives their permission for the documents provided by them to be used for another purpose, the Family Court still needs to provide their authority for the documents to be used outside the Family Court proceedings.  

If you were to use the documents obtained during the Court proceedings, for another purpose then it is likely that you would be found in contempt of court. The punishment for contempt of court is imprisonment, a fine, or both.  

The above is not intended to be legal advice.  

If you need advice in relation to proceedings in the Family Court of Western Australia, please contact us on (08) 9221 2666 or reception@calverleyjohnston.com.au to make an appointment to speak to one of our solicitors.

Tip 1 – Make time for “date night”, or if you have kids, “Family Fun Day” 

One of the most common complaints that we hear from separating couples where one of them works FIFO is that time was never made for “me or the kids”. 

Even where you have children, it’s important that you make time for your partner – one on one without the kids  – to make sure your relationship stays healthy. Often when kids come along, the focus shifts to the routine of family life rather than your partner and your relationship. 

Tip 2 – Have joint bank accounts 

If you can’t trust your partner with money, how is there any trust in your relationship? 

You trust your partner enough to live you, to have children with you etc. There should be enough trust to be transparent about finances. 

And if your partner spends too much money – then you need to communicate! 

Tip 3 – Remember the important stuff like your partner’s birthday or anniversary and definitely don’t forget your child’s birthday! 

Surprisingly, we get a lot of comments about this. Men like to be respected by their partner, but women want to be cherished. Birthdays and anniversaries are really important and are a good excuse to celebrate. 

We all have smartphones these days and these things shouldn’t be too hard to keep track of – set a reminder! 

Tip 4 – Never threaten Divorce or separation 

If you threaten divorce or separation, this is sending a message to your partner that you already have one foot out the door.  

It can be the kiss of death as it’s not something which you can take back. 

Often this type of thing is said in the heat of the moment, in an argument, but it can have a lasting impact on your partner and can often resurface in other arguments that might be had down the track. 

Tip 5 – Take good care of yourself 

Mental health is important and if you’re not feeling good about yourself, you are not going to make the people around you feel very good. 

It’s important to take time for yourself when you are at home during rest and recreation periods, including catching up with friends, going to the gym etc. This is not a green light to leave your family at home and go to the pub for 5 out of the 7 days during your time off, but once or twice should be okay.

Scenario: 

You’ve had a bad day in the Family Court and you want to vent your frustrations and let everyone know. Can you go to your private Facebook page and make a post about your ex-partner or their Family Lawyer to your Facebook friends?  

Answer: 

The short answer is you can do that, but it depends on the type of information you include in your Facebook post. As Family Lawyers, we recommend that you resist the urge to do it all, as it may reflect poorly on you in the future.  

If there are no proceedings before the Family Court, then you do not have any obligations restricting you from discussing your Family Law matter on Facebook, so long as you do not defame your ex-partner, anyone they may be dating or your ex-partner’s Family Lawyer.  

You should be careful however, if you choose to discuss Family Law matters on any social media platform, as there have been instances in the past where a person’s social media posts have been used against them. 

If you are involved in Family Court litigation, we suggest that you do not make any reference, however small, regarding your ex-partner or the circumstances or status of the Family Law matter at all.  

If proceedings have already been commenced then Section 121(1) of the Family Law Act 1975 (“the Act”) prohibits a person from publishing, or disseminating to the public, or a section of the public, an account of the proceedings, or any part of any proceedings which identifies: 

1. A party to the proceedings meaning you or your former partner;
2. A person who is related to, or associated with, a party to the proceedings, or is alleged to be concerned with the matter meaning your children, your former partner’s family or new partner, your lawyer or your former partner’s lawyer; or
3. A witness to the proceedings meaning anybody who is giving evidence in your proceedings. This could be a friend, or a psychologist who has been appointed as a Single Expert Witness. 

Section 121(3)(1) of the Act contains a detailed list of what the Court will consider when determining if a person has been identified on a social media platform or elsewhere.  

If you are found guilty of publishing or disseminating to the public an account of the proceedings, or any part of the proceedings which identifies someone related to the proceedings, then you commit an offence punishable by imprisonment for up to one year.  

There are some exceptions as to when you can publish an account of the proceedings, the list is contained in section 121(9) of the Act. Some instances when you can provide an account of the proceedings is when the Court has permitted you to do so or you are making an application for a Grant of Legal Aid. 

The above is not intended to be legal advice.  

If you need advice in relation to proceedings in the Family Court, please contact us on 08 9221 2666 or reception@calverleyjohnston.com.au to make an appointment to speak to one of our Family Law solicitors.

It is illegal to record any person – either by audio or with a camera. 

Many people think that recording their interactions with their former spouse, or their children, makes for great evidence in Court, but this is simply untrue. 

In Western Australia, section 5 of the Surveillance Devices Act 1998 (WA) prohibits a person from installing, using, maintaining, or causing to be installed, used or maintained a listening device to: 

• Record, monitor or listen to a private conversation to which that person is not a party; or

• To record a conversation to which that person is not a party. 

A mobile telephone is considered to be a “listening device”. 

Section 6 of the Surveillance Devices Act 1998 (WA) prohibits a person from installing, using, maintaining, or causing to be installed, used or maintained an optical surveillance device to: 

• Record visually or observe a private activity to which that person is not a party; or

• To record visually a private activity to which that person is a party. 

A mobile telephone is also considered to be an “optical surveillance device”. 

In accordance with subsections 5(3)(c) and 6(3)(a) of the Surveillance Devices Act 1998 (WA), it is not an offence to use a listening device or optical surveillance device to record conversations with a person, if both parties provide their consent (expressly or impliedly) to the recording taking place.  

Penalties for recording a person without their consent include a fine of up to $5,000 fine or 12 months imprisonment, or both.  

There are certain circumstances where recordings, whilst they may not have been obtained legally, can be used as evidence in Court proceedings. Please see our separate article, “Illegal Recordings and When They Can Be Used As Evidence.” 

The above is not intended to be legal advice and is based on the law of Western Australia only. If you are not based in Western Australia, please contact a local family law solicitor to obtain the relevant advice.   

If you need advice in relation to your family law matter, please contact us.