Wiltshire News

Tuesday, 5 July 2011

Some parties consider it appropriate, and somewhat strategic, to participate in Family Law proceedings in the absence of full and frank disclosure.

Whilst most property settlement matters that proceed to Court are heard by the Federal Magistrates Court of Australia, the over-arching principal of Rule 13.01 of the Family Law Rules 2004 requires parties to provide full and frank disclosure of all information relevant to the case[1].

The documents required to be produced by each party one to the other by way of disclosure are numerous. Often, seemingly simple property settlement matters will require two large volumes of disclosure by each party, comprising some 500 to 1,000 pages of documents.

Parties shouldn’t be alarmed at the disclosure requirements placed upon them, as it is with the assistance of each party’s Solicitor that parties will be able to determine the relevant and discoverable documents.

The obligation rests upon the advising Solicitor to set out for the party what is required of them to meet their obligations of disclosure. Indeed, in alternate settings and jurisdictions, there can be sanctions against practitioners who fail to meet this duty[2].

Where another party or their Solicitor require further documents to be disclosed by the other party, they can formally request their production. What is of important note, however, is that a request for too broad disclosure and for documents entirely unrelated to the proceedings[3] may be viewed by the Courts as nothing more than a “fishing expedition” which may result in the Court Ordering that such documents are not required to be disclosed[4].

The bottom line is that when answering the rhetorical question “to disclose or not to disclose?”, parties and their Solicitors need to exercise discretion and recall the case law on point which suggests that overdisclosure is better than the alternative.The cases of Weir & Weir[5] and more recently Kannis & Kannis[6] and Gould & Gould[7] have allowed adverse inferences to be drawn against non-disclosing parties when making findings of fact.

By this, if one party fails to disclose a document or fact relevant to the proceedings, the other party can seek a finding from the Court that in the absence of evidence from the other party to prove otherwise, the first party’s evidence in relation to a particular matter must stand.

In recent matters the writer has been involved in for clients of Wiltshire Lawyers, the lack of disclosure by another party has ranged from the failure to properly account for a considerable level of expenditure in a matter of months[8] including the sending of monies overseas, to a complete non-disclosure of an inheritance.

When turning their mind to disclosure parties in family law proceedings, whether at the conclusion of de facto relationships or marriages, should remember the quotation of Federal Magistrate Lucev in that disclosure is a process of “show and tell” and not “hide and seek”[9].