The duty of disclosure in family law cases

Posted 22nd July 2015 by Dirk Klicker

In this tutorial, I discuss the duty of disclosure in family law cases.

I highly recommend you take advice from an experienced family lawyer, before requesting or providing disclosure.

The Family Court of Western Australia has published a brochure, about the duty to disclose in family law cases.

Starting at our website located at www.beaconfamilylaw.com.au.

Go to the “Links” page.

Then, go to the link to the “Family Court of Western Australia”.

Then, go to “Kits, Forms and Brochures”.

Then, go to “Brochures”.

Now, click on the brochure called “duty of disclosure in family law cases”.

Download the brochure.

Just click on the link.

Save a copy on your computer for your reference.

What is, the duty of disclosure?

The duty of disclosure, is a party’s obligation to produce all the documents in the case relevant to the issues in the case.

The brochure explains in more details the particular objects and nature of the duty of disclosure.

I recommend that you take the opportunity to read and understand the brochure.

It is important you understand the duty of disclosure, because penalties apply, if a party fails to comply with that duty of disclosure.

These penalties can be severe, and include fines and imprisonment.

However, the biggest problem with failing to provide disclosure, is that the case will be delayed.

In Western Australia, a case can take 2 years to resolve. But, you can delay this even more, by not providing disclosure in a timely manner.

In addition, you are likely to incur unnecessary and additional legal fees, because your lawyer has to respond to repeated requests for documents from the other party.

Another downside of failing to give proper disclosure, is that a party may not be able to use a document to support their case, that they have not disclosed beforehand.

What documents must be disclosed?

Each case is different and has different issues. So the documents to be disclosed will not be the same in every case, which is why you should consult an experienced family lawyer.

In financial cases, there are some basic financial documents that should be disclosed.

Generally in financial cases, parties will usually have to disclose the following documents as a minimum:

  • Bank, mortgage and credit card statements, since the date of separation.
  • Payslips for the last 6 months.
  • Most recent superannuation statement.
  • Taxation returns and notices of assessment for the last 3 financial years.
  • Redbook valuations of any motor vehicles.
  • 3 appraisals of any real estate.
  • Evidence of assets at cohabitation, if any.
  • Evidence of any inheritance, gift or compensation payment.
  • Evidence of any assets disposed of since separation.
  • File containing household expenses and accounts.

This list of documents is not exhaustive, and depending on the issues in a case, a party may have to disclose additional documents.

The duty of disclosure requires a party, to disclose not only the documents currently in their possession, but all documents that they can reasonably access.

If you disclose these documents without delay, it will be much easier to prepare and present your case.

Our motto at Beacon Family Law is, “If you are on top of the disclosure, then you are on top of the case.”

How should you provide disclosure to your lawyer?

Complying with the duty of disclosure, can be a very costly exercise.

Again, each case is different, and the actual form of disclosure will change from case to case.

However, there are some basic mistakes, that party’s often make when providing disclosure.

Do not provide disclosure in a piecemeal fashion. It will always be more cost effective to gather all your documents together and provide them to your lawyer at one time.

Do not provide disclosure in an unorganised manner. It is going to be very expensive, if you just provide a big box of random documents to your lawyer. They will have to sort out the mess.

Do not provide disclosure by e-mail. Although convenient, disclosure by e-mail will increase your costs, because the e-mails have to be printed and organised.

Ideally provide the documents in an A4 file, with the documents in separate plastic sleeves. Put an index at the front of the file, that can be provided to your lawyer in electronic format.

You must keep a complete copy of the disclosure that you provided.

The duty of disclosure requires parties to disclose the original documents, not just copies. A party should have the original documents available for inspection.

There are a host of rules and tips for complying with the duty of disclosure in a timely and effective manner.

That concludes my tutorial on the duty of disclosure.

If you have any other questions about how to comply with your duty of disclosure, please telephone one of our friendly staff.