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What is family law disclosure?

In family law, disclosure is the process of parties to litigation providing to each other first a list and secondly copies, of all documents in their possession or control which are relevant to the matters in dispute between the parties.

What is the purpose of family law disclosure?

One purpose of giving disclosure is to try and reduce the areas of dispute between parties.  The more relevant information which is shared between parties potentially the fewer areas of disagreement will remain.

Disclosure is also important for your lawyer and your case. It is imperative that your lawyer is able to find relevant documents easily, so having a comprehensive set of documents described accurately and clearly is an important tool for your lawyer to use while representing you.

How often must I disclose?  (Keep up to date)

You have an obligation to continue to disclose relevant documents until the proceedings are finished. Talk to your lawyer about how frequently you should provide new bank statements, investment information, valuations and diaries of events etc.

When can I argue about what I disclose?

If you and your lawyer are of the view that documents which are sought are irrelevant or “privileged” (such as letters of legal advice), you may choose to refuse to disclose them, or having disclosed them in a list, may refuse to provide copies.

What must I disclose?

Documents:

  • relevant to the areas of dispute; and
  • in your possession or control; or
  • previously in your possession or control.

You do not need to provide explanations or commentary in relation to the documents.

You need to identify what precisely are the areas of dispute or argument and disclose documents that relate to those issues.

You only need to disclose what you have or have had in your control or actual possession.  You do not need to create documents to disclose.  You should also disclose documents which have gone from your control – i.e. have been lost or destroyed or given to other people (such as bank documents you have signed).

What types of documents must I disclose?

  • Income and employment e.g. payslips and tax returns.
  • Financial institution e.g. bank statements, mortgage documents, loan agreements and credit card statements.
  • Real estate e.g. contracts for the purchase or sale, original or copy certificates of title and valuations or market appraisals.
  • Business income e.g. annual financial accounts, profit and loss statements, bank account statements, articles and memorandum of association, leasing and hire purchase agreements.
  • Share and debentures in public companies or institutions e.g. details and records of any investments and debenture certificates.
  • Social welfare e.g. detail of any social security pensions or payments.
  • Maintenance, spousal or child support e.g. any documents relating to the receipt or payment of any amount of maintenance payable.
  • Fringe benefits e.g. any documents relating to any benefits received through employment.
  • Tax e.g. copies of income tax returns and taxation assessments.
  • Other sources of income e.g. distributions from a trust or estate and dividends.
  • Insurance policies.
  • Superannuation e.g. recent member statement and policy document.
  • Trust fund e.g. copy of the trust deed and annual accounts or tax returns for the trust.
  • Motor vehicles e.g. registration certificates, appraisals or valuations.
  • Valuations of any items of furniture and jewellery.

When must I disclose?

Certainly when asked or ordered to do so.  Commonly during “Pre Action Procedures” and once Court proceedings have commenced.  But practically prior to mediation or negotiation meetings.

What form does disclosure take?

First, the preparation of a list of the documents with accurate descriptions so they can be identified.  Secondly, providing copies of certain documents as required by the Family Law Rules 2004.  Finally, making the documents available for inspection by the other party and their lawyer and providing copies of documents they want at their cost.

What don’t I have to disclose?

Privileged documents, advice (legal) and irrelevant documents

How do I get disclosure from the other party?

If the other party won’t provide disclosure, you can:

  • ask for specific documents in a letter;
  • once proceedings are commenced, you can get an order for disclosure;
  • you can give a Notice to Admit (talk to your lawyer about this); and
  • you can issue subpoenas (talk to your lawyer about this).

What should I ask the other party to disclose?

First, make a decision about what types of documents you want to see. Don’t ask for unnecessary documents as that will increase costs for no or little benefit.

How are disclosed documents used in court?

Just because documents are disclosed does not mean they get seen by the Court. It is not until they are introduced into evidence that the Judge or Magistrate sees them. To have a document put into evidence generally requires it to be attached to an affidavit or put to a witness in a trial for the document to be identified.

When should I not argue about it?

When it will cost money to argue and there is no prejudice to you in providing the document even if it is not strictly discoverable.

 How can I help my lawyer prepare disclosure and reduce costs?

First, be clear about what documents you must disclose. Then make sure you provide them quickly and keep providing them so the disclosure is kept up to date (for example, bank statements).

Secondly, provide original documents (we will keep them safe) where there is a modest amount and provide them in chronological order separated into different categories (e.g. a set of statements for each bank account).

If there are many documents, discuss with your lawyer how best to provide them electronically.

For further information, please visit the following links and contact one of our family law specialists:

https://www.legislation.gov.au/Details/F2017C00701

http://www.familycourt.wa.gov.au/_files/Duty%20of%20Disclosure%201%20Sep%202010.pdf

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