Discovery and Disclosure

There is an obligation upon family law property litigants to disclose to their opponent all documents which are relevant to an issue between them. This obligation arises both in the pre-action stage and during litigation. It ends only when the case does.

The Rules of each of the Family Courts require disclosure of documents relating to a party’s assets, liabilities, income, expenses, superannuation and financial resources.  

In Owens and Owens (3), Federal Magistrate Walters Held,

“you give until it hurts…” and if there is any piece of paper that you look at or you think about and you ask yourself, “is this relevant?” the answer is inevitably and always “yes, I disclose it,” unless it is blindingly obvious that it has absolutely nothing to do with your financial position, your brother’s financial position, your father’s financial position or anything to do with the case at all.”[1]

If a document is relevant, a party is required to produce that document or information if it is in their power, possession and control. A party must do all acts and things reasonable to produce that document, unless it is privileged. Documents are rarely privileged and it is beyond the scope of this paper to discuss the exceptions.

Non compliance with disclosure is often the main reason a matter is not resolved in a timely, and cost effective manner.

The documents specifically referred to in the Family Law Rules are a guide to the type of documents required to be disclosed rather than an exhaustive list.

It is a good idea for a litigant to commence collating documents as soon as practicable and continue to do so until the conclusion of the matter. It is best practise is to prepare a folder of documents with an index identifying each document which is added to as the need arises. The documents can then be produced at any point in an organised and easy to use form.

If a party fails to make proper disclosure, the other party may be permitted to issue a subpoena to obtain the necessary evidence. If a party is required to issue a subpoena due to the failure of one party to make disclosure, costs can be awarded.

Failure to comply with the requirement to make disclosure can have significant implications for a party such as the exclusion of evidence that is not disclosed, the Court drawing adverse inferences or punishment for contempt of Court.

[1] Owens v Owens (3)[2010]FMCAfam3 (14 April 2010) Act 71.