Released to Use Australian Court Documents Overseas, but No Second Round of Foreign Bank Disclosure

In Dawid & Nilima (No 2) [2026] FedCFamC1F 599, the Court dealt with two requests by a wife in a property case with an overseas dimension: to be released from the implied (Harman) undertaking so that documents from the Australian proceedings could be used in the wife's overseas proceedings, and for orders for disclosure of eight overseas bank accounts said to be in the husband's name. The result: McNab J released the wife from the undertaking, limited to use in the overseas proceedings and by her legal advisers there, and did so nunc pro tunc (that is, taking effect from the earlier date, because the documents had already been used). But the Court dismissed the further disclosure applications, because disclosure orders of the same kind had already been made by consent ([13]–[15], [21]–[23]; Orders 1–3). The important point is that the Court looks for "special circumstances" before it lets documents leave the proceedings they were produced for, and it will not duplicate disclosure orders. If a party says the other side has not complied, the route is the contravention provisions in the Rules, not a second round of the same orders ([11]–[12], [21], [23]). All paragraph references below are to the judgment, which was delivered ex tempore (given orally, with reasons transcribed).

Why it matters: Documents filed in an Australian family law case are not free for general use. Under r 6.04 and the Harman principle, you use them only for that case unless the Court gives permission. Overseas litigants commonly want to use Australian affidavits, orders or judgments in a foreign court, and some have already done so without permission. This judgment shows what the Court looks for, and it also shows the limits of disclosure applications aimed at obtaining material for foreign proceedings ([6]–[15], [21]).

🧩 Facts and Issues

The parties and the application

• This is a property case under s 79 of the Family Law Act 1975 (Cth) between the applicant wife and the respondent husband, with parallel proceedings in a foreign country (anonymised in the judgment as "Country K") ([1], [6], [22]).
• The wife applied by an application in a proceeding filed 13 March 2026. The husband responded on 27 March 2026 ([1], [5]). The hearing was on 30 March 2026 (cover notes).
• The judgment is published under a pseudonym with approval under s 114Q(2) of the Family Law Act (cover notes).
• The application also sought a partial property settlement of $120,000 from the proceeds of sale of a property held in trust by the wife's solicitors. That part was not pressed at the hearing ([3]).

What the wife sought

• Release from the Harman obligation for any documents sworn or affirmed in the Australian proceedings, orders made, transcripts of hearings and the anonymised judgments, including an earlier judgment in the same matter, limited to the overseas proceedings and to legal practitioners acting for or advising her there ([1]).
• The orders to apply nunc pro tunc, because the documents had already been used overseas. She relied on Johnston v Allen [2024] NSWSC 187 for the proposition that such an order may be made ([2]).
• Disclosure of eight bank accounts in Country K said to be held in the husband's name, for the period from 1 November 2011 to 11 March 2026. She also wanted the husband to swear an affidavit explaining why he could not produce bank statements, what steps he had taken to find them, and how any statements within his possession or control had left it, and to attend court to be cross-examined on it ([16]–[17]).

The wife's evidence about the overseas proceedings

• The wife's affidavit said there had been a hearing in Country K on 5 January 2026, and that, according to her, the husband disputes that court's jurisdiction on the basis that the parties are not divorced and could resume cohabitation, and uses that position to explain why he has not produced financial documents ([6]).
• She also said she was informed by her Country K lawyers that the Country K court would not conduct a court-led financial investigation or make financial orders unless satisfied the relationship had broken down ([6]).
• She said documents produced in the Australian proceedings about the breakdown of the relationship had been produced and referred to in the Country K proceedings, and that she wanted to regularise that use ([7]).

The husband's position on disclosure

• The husband's affidavit said he had produced all the documents the Country K court required him to produce, and had otherwise produced documents available to him. He said he had difficulty obtaining documents in Country K because a freezing order was imposed there "at the urging of the wife" ([18]). That is his account. The judgment does not make findings about it.
• He also sought a stay of the Australian proceedings in relation to any assets in Country K ([22]).

Issues

1. Should the wife be released from the implied undertaking and r 6.04, and should that release take effect after the documents had already been used overseas ([8]–[15])?
2. Should the Court make further orders for disclosure of the Country K bank accounts ([16]–[23])?

⚖️ Applicable Law – Legislation, Regulations, Rules

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth):

• r 6.04(1): unless the Court gives permission, a person who inspects, copies or receives a document in relation to a proceeding or an order must use it only for the purpose of the proceeding and must not otherwise disclose its contents or give a copy to any other person ([9]).
• r 15.26 also regulates the use of documents or information obtained in proceedings in this Court ([10]).
• Part 11.2 deals with contravention of orders. It is the mechanism identified for any non-compliance with the existing disclosure orders ([23]).

Family Law Act 1975 (Cth):

• s 79: property settlement. Property in Country K is prima facie property of the parties that may be taken into account as a financial resource in the Australian proceedings ([22]).
• Part XIIA: sanctions for contravention, available where a contravention is established ([23]).
• Part XIVB and s 114Q(2): publication restrictions and approval of the pseudonym (cover notes).

Also relevant:

• Harman v Secretary of State for Home Department [1983] 1 AC 280: the implied undertaking not to use documents obtained in litigation for other purposes ([1], [8]).

📌 Precedents Relied On

• Tadman & Tadman (No 2) [2026] FedCFamC1F 38 (Parker J) — "comprehensively summarises" the principles on release from the implied undertaking. McNab J referred to and adopted that summary ([8]).
• Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 and Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [31] — "special circumstances" means some feature of the case giving a reason for modifying or releasing the undertaking. It does not need extraordinary factors. It is enough that, in all the circumstances, "good reason" is shown why documents produced in one proceeding should be used in another proceeding or for a non-litigious purpose ([12]).
• Johnston v Allen [2024] NSWSC 187 (Parker J) at [133], and [122] — relied on by the wife as authority that an order of this kind may be made after the event. Paragraph [122] of that decision refers to Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95 ([2]).
• Dawid & Nilima [2025] FedCFamC1F 745 — the earlier judgment setting out the background to the matter ([8]).

🧠 Analysis

Issue

Could a wife use Australian court documents in her overseas proceedings after she had already done so, and could she obtain further orders for disclosure of overseas bank accounts when orders for disclosure of the same kind had already been made?

Rule

• The implied undertaking and r 6.04. Documents in the proceedings can be used only for those proceedings unless the Court gives permission ([9]).
• Special circumstances are required. At common law and under the Rules, special circumstances are needed before leave will be granted to use documents for other purposes ([11]).
• What counts as special circumstances. Some feature of the case that gives a reason to modify or release the undertaking. Extraordinary factors are not required, but "good reason" must be shown ([12]).
• The Court adopted the principles in Tadman & Tadman (No 2) ([8]).

Application

The release: special circumstances were made out

McNab J found "special circumstances" ([13]):

• The use of the documents was "reasonably necessary" to respond to the husband's submissions and evidence in the overseas proceedings that the relationship had not broken down.
• The documents filed in the Australian proceedings "make clear that the relationship has broken down".

The Court also took account of the consequences of refusing. If the wife could not rely on those documents, that might affect her ability to pursue a property settlement in Country K, including her ability to establish that the marriage had irretrievably broken down and to obtain financial disclosure such as bank statements tracing the husband's income ([14]).

"After the event" was allowed, but the Court said it would have been better to ask first

Because the documents had already been used, an order nunc pro tunc was appropriate ([15]). The judge added that it "would be preferable for the wife to have sought an order releasing her from the implied undertaking prior to the use of those documents in the Country K proceedings", but accepted the explanation as to why the Country K lawyers had used them ([15]). The judgment does not set out that explanation.

The release was limited to use for and in relation to the Country K proceedings, and by legal practitioners acting for or advising the wife in those proceedings (Order 2).

Further disclosure: the Court saw no point in repeating orders already made

The wife's disclosure application ran into three points:

• Orders already existed. On 20 October 2025 the Court made orders by consent for each party to disclose a "raft" of documents, including banking records and credit card statements for all accounts to which the husband has or had access in Country K from 1 January 2022 to 16 November 2024 ([19]).
• The husband had given sworn evidence about compliance. His affidavit filed 22 March 2026 described his attempt to comply with those orders, and his affidavit filed 27 March 2026 said he had produced the documents available to him ([18], [20]). He was "bound by the evidence he has given", so the Court did not see a need for a further affidavit about compliance ([21]).
• The purpose concern. McNab J said: "I am concerned that the wife is using the processes of this Court to obtain documents held in Country K in aid of relief that she seeks in the Country K court for property orders" ([21]). That is an expressed concern. The judgment does not make a finding of improper purpose.

The Court said it did not see the "utility" of making disclosure orders where orders for the same had already been made ([21]). It held that "substantive orders for disclosure of the same kind" already existed, so it was "not appropriate to make further orders of the kind sought" ([23]).

If a party doesn't comply, use the contravention provisions

The judge pointed to the proper path if the existing orders were not complied with: Part 11.2 of the Rules on contravention, including the potential for sanctions under Part XIIA of the Act where a contravention is established ([23]). The judgment does not find that the husband contravened any order.

The husband's stay application was not decided

The husband sought a stay of the Australian proceedings in relation to Country K assets. The Court noted that property in Country K is prima facie property of the parties that may be taken into account as a financial resource under s 79. It said that is "conceded by the fact" that the husband had consented to the 20 October 2025 disclosure orders concerning Country K property ([22]). That application, the parenting issues, part property settlement and overseas travel were not ventilated and were listed for later hearing ([24]; Order 4).

Conclusion

• The wife was released nunc pro tunc from the Harman obligation and r 6.04, limited to use in the Country K proceedings by herself and her legal practitioners there, because special circumstances existed ([13]–[15]; Orders 1–2).
• Both parties' applications for further disclosure were dismissed, because similar disclosure orders had already been made and compliance questions are for the contravention provisions ([21]–[23]; Order 3).
• The balance of the matters were adjourned to 9 September 2026 with directions for further material and submissions, and costs were reserved ([24]; Orders 4–8).

The judgment does not decide the property case, the husband's stay application, or whether either party has complied with the disclosure orders.

🧠 Take-Home Lesson

• Get permission before you use Australian court documents elsewhere. Documents from a family law case are subject to r 6.04 and the Harman undertaking, and the Court can release you from it only where special circumstances are shown ([9], [11]–[13]).
• Show a concrete need. The wife's case was that the documents were reasonably necessary to answer the husband's position overseas that the relationship had not broken down ([13]).
• Asking after the event is possible, but not ideal. The Court made an order nunc pro tunc, but said it would have been preferable to apply before the documents were used ([15]).
• Stay within the limits of the release. The order was limited to the specific overseas proceedings and to the practitioners acting for or advising the wife in them (Order 2).
• Don't ask for the same disclosure twice. Where consent orders already cover the same ground, the Court may see no utility in making more ([21], [23]).
• Use the enforcement route if you say the other side hasn't complied. Part 11.2 of the Rules and Part XIIA of the Act are the identified mechanisms, not a new round of disclosure orders ([23]).
• A court will notice if its processes seem to be used for a foreign case. The judge expressly raised that concern, though no finding was made about it ([21]).
• Support workers and McKenzie friends: this is an ex tempore interlocutory decision. It deals with specific facts and orders, and does not decide the property outcome. Anyone with parallel overseas proceedings should get advice, ideally from lawyers in both countries, before using documents across borders.

"Ask before you carry Australian court documents across a border. And a second round of the same disclosure won't fix a compliance problem."