The Family Court has dismissed an application by the
Commissioner of Taxation to be released from an implied obligation
not to make collateral use of certain documents filed in a Family
Mr Darling and his wife were parties to a Family Court
proceeding. The Commissioner sought to use the documents filed in
the proceeding to 'assist with' the audit of Mr Darling and
his related entities for the 1991 to 2010 income years.
The Commissioner searched and inspected the Court records on
several occasions and made copies of the relevant documents.
Having inspected and copied documents from the Court records,
the Commissioner had an implied obligation not to use those
documents for a purpose that was not related to the Family Court
The Court noted that the purpose of this obligation was to
preserve the parties' privacy and to encourage full and frank
disclosure. 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.
In determining whether it should exercise its discretion to
release a party from the implied obligation, the Court must
determine whether 'special circumstances' existed.
To establish special circumstances, the Court needed to be
satisfied that there was some special feature that was not usually
present that merited the release of the obligation.
One of the relevant public policy considerations was whether the
disclosure of the documents will contribute to achieving justice in
the Commissioner's audit.
In his application for release, the Commissioner was required
specify the documents for which release was sought;
specify the purpose for which release was sought; and
satisfy the Court that the special circumstances relied upon
warranted or justified the release sought.
The Court held that the Commissioner did not discharge his
obligation to adequately specify the reasons why certain documents
were necessary and relevant to the conduct of an audit.
In reaching its decision, the Court made the following
There was no evidence as to the nature of the audit of the
husband's affairs or what information may be required to
complete that audit.
There was no evidence as to what information had been obtained
and why that information might be insufficient to complete the
audit. (This was significant given the wide powers the Commissioner
had to obtain information.)
There was no evidence presented to support the belief that the
documents would be relevant either generally or in relation to
The Court refused to release the Commissioner from the implied
obligation. It was not satisfied that the release was necessary in
the public interest to enable the Commissioner to fulfil his
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