We’ve all seen an American courtroom drama on television. Inevitably, in the climactic scene, our hotshot lawyer will reveal some shocking and hitherto undisclosed information, to gasps from the gallery and the consternation of opposing counsel.

Courtroom dramas, of course, have little relation to reality. But under the new Family Law Rules, the above situation is even less likely. Chapter 13 of the Rules imposes a duty of disclosure on parties in family law proceedings. This means parties are obliged to reveal any relevant information or documentation to the other side.

No fishing

This duty doesn’t mean parties in family law litigation are obliged to hand over absolutely everything. Some documents are privileged against disclosure: for example, information given in confidential consultation with lawyers, for the purposes of legal advice.

Parties only have a duty to disclose documents and information “directly relevant” to the case. Previously, parties’ lawyers would embark on a “fishing expedition,” by obtaining a general order from the court from the disclosure of all documents relating to the case, in the vague hope of uncovering something useful.

Just what documents are “directly relevant” is ultimately a decision for each party’s lawyers. Naturally, no lawyer wants to infringe their client’s privacy and needlessly offer up too much information; but on the other hand, clients can be penalised for not making full or proper disclosure. So it’s important to engage an experienced family law practitioner who can get the balance right.

Parties are also permitted to request that the other party produce specific documents, or make them available for inspection or copying. In addition, parties may ask specific questions (with a limit of 20). Of course, the other party is entitled to object, if they have reason for doing so.

Show me the money

In financial cases (that is, cases involving property, maintenance, or child support), parties must make a full and frank disclosure of their financial circumstances. This means spilling the beans on all their earnings, property interests, trusts, and liabilities. If they should own or partially control a corporation or legal entity, any income or property of that entity must also be disclosed.

Disclosure by non-parties

The new Family Law Rules introduce a simpler method for obtaining documents from non-parties, for example a bank. This saves the costly and tedious process of obtaining and serving a subpoena. The new process involves completing a particular form and serving it on the non-party – and on any other person that may be affected by disclosure (using the bank example, this could be a joint account holder), as well as the other party in the case.

Again, the documents requested must be “relevant to an issue in the case”, so this is not open to fishing expeditions. Moreover, the non-party, the other party, or any person affected, can object to the form. If this happens, the party requesting the documents can apply to the Court for an order. Once faced with a Court order, the non-party is legally compelled to produce the documents.

Keep your promises

This disclosure stuff is important. If you’re going to become involved in family law proceedings, you should familiarise yourself with the concept and read Parts 13.1 and 13.2 of the Family Law Rules. All parties are required to acknowledge awareness of the duty of disclosure, and must promise to comply with it. This undertaking, which comes in a particular form, must be signed and filed with the Court.

As a result, breaching the undertaking, in other words failing to disclose information or documents, constitutes contempt of court. Be aware that if the other party suspects you of failing to disclose (and in family law proceedings, where the parties were often close formerly, they may have some idea of what documentation you possess) they can institute proceedings against you for contempt of court.

But that’s not all the consequences of absent or defective disclosure. The Court can stay (put on hold) or dismiss the guilty party’s case, or order costs against them (this means they have to cough up the all costs of court, which can be considerable if the hearings are protracted). Because the Court has signalled its intention to take the duty of disclosure seriously, and the penalties can be severe, don’t risk trying to mount a case on your own. The Family Court recommends that you should seek legal advice regarding your duty of disclosure. That’s one thing you can take from those courtroom dramas: having a good lawyer is an asset.

June, 2004