Honesty is the Best Policy
What is the Duty of Disclosure?
The duty of disclosure is an ongoing requirement for all parties to a family law dispute. Each party in Court proceedings has a duty to the Court and to each other, to give full and frank disclosure of all relevant information, in a timely manner. This includes information recorded in a paper document or stored by some other means, such as a computer storage device, and also includes documents that the other party may not know about.
You only have a duty to disclose those documents which are considered to be directly relevant to the matter. What is deemed directly relevant will depend on the particular issues which are in dispute. Your Solicitor will assist you in determining what is relevant.
There are also certain documents which are privileged and do not have to be disclosed. For example, communications between you and your Solicitor in relation to your family law legal matter are privileged and do not have to be disclosed.
The other party to the proceedings can ask to see specific documents. If such a request is made, a party is required to provide a copy of the requested document within 21 days of receiving a written notice.
Once a case has been set down for final hearing, the Rules allow for the service of a Request to Answer Specific Questions for trial. A party may serve one set of 20 specific questions on the other party. That party has the right to object to answering any question, but only if they have a good reason for doing so. In some circumstances, the Court may order that party to answer a question even though it might be one to which they have objected.
Consequences of Non-Disclosure
The consequences for breaching a duty of disclosure can include:
- The party being found guilty of contempt for not disclosing the document;
- The party being ordered to pay costs;
- The Court may stay or dismiss all or part of the party’s case;
- The Court may refuse to allow the document to be used as evidence.
Suiker v Suiker
In the case of Suiker v Suiker, the Court set aside the parties’ Consent Orders and ordered that the Husband pay the Wife an additional sum of $45,000.00. The Husband had failed to disclose to the Wife details of his financial circumstances. The Wife was not informed that the Husband had changed superannuation schemes and had offered to make himself redundant. The amount which the Husband could receive if he was made redundant was also not disclosed to the Wife. By way of his retirement, the redundancy and other payments connected with his retirement, the Husband received $135,455.00 more than the agreed sum of $27,100.00 attributed to the Husband’s superannuation entitlement. The Court held that consent to an Order must be informed consent. In this case, there had been a miscarriage of justice by reason of the Husband’s failure to disclose.
Tate v Tate
In the case of Tate v Tate, a litigant was found to have breached his duty for full and frank disclosure by failing to promptly disclose his financial affairs. As a result, he was excluded from further participating in the proceedings and the Court made Orders for an undefended hearing. It is the Court’s view that people who are found in contempt for disregarding their disclosure duties threaten the operation of Justice and will attract the strongest measures from the Court.
Barker v Barker
In the case of Barker v Barker, the Court set aside Consent Orders. The Husband had failed to disclose to the Wife that an offer to purchase had been made in relation to one of their farming properties. The property had been valued at $1,650,000.00 and Consent Orders were made on this basis. Shortly after the Orders were made, the Husband sold the property for $2,650,000.00. Prior to this sale, an oral offer of $2,300,000.00 was made to the Husband which he had rejected. By not disclosing this offer, the Wife claimed that the Husband had failed to disclose relevant information, which led the Wife and the Court into error in making the Consent Orders, resulting in a miscarriage of justice.
The Court found that the Husband was under an obligation to disclose the offer and that, unless the Orders were set aside, the Wife would be deprived of a just and equitable share of the parties’ property.
A failure to comply with the duty of disclosure could potentially result in the Court setting aside Consent Orders to which the parties have agreed.
Should you have any concerns as to your obligations in regards to disclosure in a Family Law matter, we recommend that you obtain legal advice.
For more information
This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.
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