Blog post by Natalie Sandman
The duty of disclosure is the duty of all parties in a case before the Family Court to provide the other parties with all information and documents which are relevant to the issues in the case. This includes new information which is created if a party’s situation changes. The duty applies in all cases before the Family Court, including cases dealing with property, financial support and children.
The purpose of the duty of disclosure is to ensure that the Court can determine a fair outcome having regard to the true circumstances of all the parties as substantiated in the information disclosed by each side. The lawyers for each side will also rely on this information to present their arguments to the court.
Disclosure of information by one party to the other can be one of the most contentious issues during Family Court proceedings and can result in significant unnecessary legal costs being incurred if one or both of the parties do not properly comply with their disclosure obligations.
The duty of disclosure continues until the case is finished.
Where the Court is considering the financial position of the parties, the duty of disclosure would apply to documents including assets and liabilities, bank statements, tax returns, superannuation statements and documents relating to business or trust arrangements.
Where the Court is considering matters relating to children or custody, the duty of disclosure would apply to all relevant information which, depending on the particular case, could include medical reports relating to a child or parent, school reports, photographs and even documents created by the child, like letters to a parent or drawings.
The Family Court recommends that parties seek legal advice in dealing with the process of disclosure. If lawyers are involved, those representing one party will request disclosure of relevant documents by the other. Once the lawyer has received the relevant documents from the client they will compile a list of the documents which is sent to the other party. The relevant documents can then be inspected in person or copied and dispatched to the other party at their cost.
If a party fails to disclose documents which the other side has reason to believe exist and which should be disclosed, that party can apply to the court for an order (a subpoena) that those documents be produced. The consequences for a party who fails to make proper disclosure can be significant as the Court may not allow a party to use that information in support of their case; it may dismiss part of the case; or make an order that the non-disclosing party pays relevant legal costs of both sides.
In situations where a party has deliberately concealed or omitted to disclose relevant information, the Court may impose a fine and/or imprisonment if it deems such failure to be a contempt of court. It may also have regard to such failure to disclose in making a decision in favour of the other party who may already have an idea of what information is in the possession of the other party in any event.