A concern which is often raised with us by people we assist who operate businesses or people with significant wealth, is that their confidential business information or information about their financial circumstances may be disclosed during family law proceedings.
An option available to address this concern is to ask the other party or any professionals assisting with the case to sign a confidentiality agreement. This can act as a deterrent to the other party releasing any confidential or commercially sensitive information.
Often confidentiality agreements are entered into by agreement. However, the Family Court has considered whether it has power to compel a party to proceedings to sign a confidentiality agreement if not agreed.
During the proceedings before the Family Court in Melbourne in Milford & Doumas  FamCA 339, the husband sought that the Court make an order for the wife to sign a confidentiality agreement as to business documents that had been disclosed by him. These documents contained information as to the financial circumstances of third parties, not involved in the proceedings.
The husband gave affidavit evidence that:
- all of his business interests involved third parties including his business partner and associated entities;
- he had provided documents to the wife by way of disclosure which:
- included details of the financial interest of these third parties;
- were commercially sensitive;
- if disclosed to competitors would prejudice his own business interest and those of third parties;
- were not available in the public domain and had significant commercial worth;
- he had requested (via his lawyers) that the wife sign an acknowledgement confirming her understanding of her obligation to keep information provided in the course of the proceedings confidential and the wife had refused.
The husband’s application was brought because he said that the wife had discussed the proceedings and particularly, the financial matters of the parties with the next-door neighbour. He alleged this had also provided financial documents disclosed by him to the neighbour.
The wife opposed the husband’s application. She denied providing any financial documents that the husband had disclosed in the proceedings to the next-door neighbour or discussing sensitive financial or business information with the neighbour.
However, the Wife conceded that she had sought advice from the neighbour as to sourcing appropriate real property valuers and discussed general commercial references with the neighbour on occasions, based on the neighbour’s extensive business experience. The Wife relied on the High Court case of Hearne v Street  HCA 36 which emphasised that such an order should only be made in exceptional circumstances.
Justice Thornton of the Family Court in Melbourne ultimately determined to dismiss the husband’s application on the basis that there was no evidence that the wife had provided documents or information to the neighbour arising from the disclosure by the husband. An implied and express undertaking already applied to the wife requiring that she refrain from providing the documents to any third party. The Judge found that the evidence did not constitute exceptional circumstances for the purpose of requiring a confidentiality agreement where in this case any breach of confidentiality by the wife would be detrimental to her own case.