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On 1 October 2014, the ATO published a Decision Impact Statement in relation to the Full Family Court's decision in FCT v Darling [2014] FamCAFC 59.

The Full Family Court's decision granted the Commissioner relief from the implied obligation not to use documents obtained from the court file.

The Full Family Court considered that the most important consideration was whether or not granting the Commissioner relief from the implied obligation was likely to result in discouraging parties from making full and frank disclosures to the court. The Full Court noted that the Family Court can and does refer matters involving tax evasion to the relevant authorities for investigation. The Full Court concluded that releasing the Commissioner from the implied obligation would not result in any greater disincentive to parties being frank with the court.

The taxpayer's application to the High Court for special leave to appeal was dismissed on 15 August 2014. Hayne J said that the premise that the Commissioner required release from an implied obligation limiting the use which the Commissioner could make of documents the Commissioner had obtained from the registry of the Family Court by exercise of power under s 263 ITAA 1936  "is to be doubted".

Notwithstanding this doubt, the Commissioner in the Decision Impact Statement states that he "accepts the decision of the Full Court of the Family Court that the implied obligation applies to the Commissioner as a stranger to the litigation...Where the Commissioner, as a non-party to litigation, seeks access to court documents for use other than in the proceeding in which the documents were filed, the Commissioner will make an application to the court for release from the implied obligation. The Commissioner will have regard to the factors considered by the Full Court of the Family Court in making any such application."

For a copy of the transcript of the special leave application to the High Court, go here

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