Before parties consider taking a matter to court seeking family law financial orders, they are encouraged to make a genuine effort to resolve their dispute through negotiations first. Alternatively, when parties are already in court, they are encouraged to try to resolve their dispute at the conciliation conference prior to having the matter set down for a trial.
Disclosure plays an important role during these stages and yet I often find that the disclosure is not conducted as well as it should be.
When we talk about disclosure, we are talking about the act of each party providing information or documents to the other party that are relevant to the claims of either party. Disclosure prevents the parties from hiding relevant information from the other parties. The duty of disclosure is first and foremost a duty of the parties themselves, with lawyers having an important role to play.
Proper disclosure is very important because it allows each party to have the information they need to make a proper assessment of their claim, and where possible, to resolve the matter without the need to proceed to a disputed court action, or proceed to a trial of the claim. This saves both parties time, stress and money.
Further to this, even if an agreement cannot be reached through negotiations, or even if the matter does proceed to trial, discovery done well often allows the parties to narrow down the issues in dispute, which can make it less costly for the parties at the trial stage.
Types of disclosure
Generally in the area of family law there are three types of disclosure: pre-action disclosure, informal disclosure and formal disclosure.
Pre-action disclosure can be conducted as the parties see fit, but it is important that parties disclose the existence of all of their property and liabilities as well as any other information or documents of importance.
Informal disclosure after proceedings have been issued in the Family Court or Federal Circuit Court requires that each party provide the other side with a list of the documents which are or have been in their possession or access that are relevant to their claim. These documents are then made available for inspection.
Formal disclosure has the same requirements as informal disclosure with the exception that each party lodges an affidavit (sworn statement) with the court setting out their list of documents.
Importance of disclosure
The duty of disclosure is an ongoing duty, so if you have previously made disclosure and new information becomes available, you must also disclose that new information.
I often find that parties provide either too much disclosure or too little disclosure. It is up to your lawyer to guide you so that you provide the right amount of information to the other party. It is a little bit like the Goldilocks story, provide too much disclosure and the other party is overwhelmed and unable to easily ascertain their position costing both parties time and money. Provide too little disclosure and you have the same problem. You want to provide just the right amount of disclosure.
It is your lawyer’s job to work out what the issues of the case are and tell you what information is relevant to those issues, thus allowing you to provide the proper disclosure. In a property dispute, information relating to your health, earnings, assets, liabilities, financial resources and any assets you have disposed of will be relevant. As another example, information relating to a parent’s Will would not normally be relevant if that parent is in good health and has other children, but it may be relevant if the parent is unwell and that child is likely to receive a substantial inheritance.
Disclosure not done well can have serious ramifications. Let’s say you obtained consent orders from the court having failed to disclose a significant asset, then the courts could overturn the consent orders, opening you up to a new and far more contentious property dispute.
Alternatively, if you are at trial and have failed to comply with your disclosure obligations, then the courts will err on the side of the other party who would be disadvantaged. Other ramifications of not providing proper disclosure could be that a costs order is made against you or even that you receive a fine or imprisonment for being in contempt of court.
Overall, disclosure should not be taken lightly and it is often in each party’s best interest to provide proper disclosure.