The parties to a property and financial case must give each other full and frank disclosure of their financial circumstances. This includes information recorded in a paper document or stored by some other means such as on a computer storage device.
Family lawyers are often asked what documents are covered by the duty to give disclosure. The answer to this question can be found in Chapter 13 of the Family Law Rules 2004.
Relevant documents include those which deal with each party’s:
1. earnings and income sources.
2. vested or contingent interest in property.
3. vested or contingent interest in property owned by a legal entity (such as a corporation, trust, partnership, joint venture business or other commercial activity) that is fully or partially owned or controlled by a party, and any income earned by such legal entity.
4. other financial resources.
5. interest in any trust.
6. disposal of property (whether by sale, transfer, assignment, or gift) that may affect, defeat or deplete a claim (unless made with the consent or knowledge of the other party or in the ordinary course of business):
- in the 12 months immediately before the separation of the parties; or
- since the final separation of the parties.
7. liabilities and contingent liabilities.
How long does the duty of disclosure extend?
The duty to give disclosure starts before the filing of any Family Court documents and continues until the case is finalised whether by consent or final order following a trial. In other words, the duty of disclosure is a continuing obligation and starts immediately.
Before a property or financial case is finalised, each party is required to file a notice with the Family Court stating that they are aware of their duty to give disclosure in a timely manner of all information relevant to the issues in the case, and that they undertake that they have complied with the obligation.
Consequences of non-disclosure
If a party does not disclose a document that is relevant to the issues in the case:
- It may not be possible to identify and value the totality of the party’s property or financial interests (resulting in an unjust and inequitable outcome).
- That party must not attempt to rely upon the document as evidence of its content at a hearing or trial without the other party’s consent or the Family Court’s permission.
- The Court may draw an adverse inference against the non-disclosing party.
- Delays may occur in the Family Court proceedings, resulting in significant (and unnecessary) costs for each of the parties.
- The party may be guilty of contempt.
- The party may be ordered to pay the other party’s costs
- The Family Court may stay or dismiss all or part of the party’s case.