Family Law – The importance of documents and the process of discovery and disclosure
It is a fundamental principal in family law that the process of discovery and disclosure of all material that is relevant to the case be made to ensure a fair outcome. More importantly this duty exists in cases concerning property and financial cases – Family Law Rules, Chapter 13.
This duty exists from the commencement to the conclusion of a case and it also includes all documents that come into possession during the case. This process of revealing all relevant information to a case is called ‘disclosure’. The process of providing all information for the other side to consider and make copies or reference to is called ‘discovery’. There is a duty to disclose documents or information that are “directly relevant” to the issues. The courts case management process helps parties identify the relevant issues to a case and ease the process of disclosure.
The process of discovery requires parties to make full and frank disclosure in a timely manner of all financial circumstances including all income, financial resources, interest in property, trusts as well as liabilities of that party to the other party. This duty exists from the onset of the case and parties disclose all information and documents to the other party by way of exchange of a list of assets and liabilities and bank statements.
For financial cases the Family Law courts require filing of the Financial Statement with the Initiating Application and at least 2 days before the first court date, parties must exchange tax returns, business records, market value for assets as well as documentation relating to superannuation.
As with the process of discovery, when one party feels or has reason to believe at disclosure that certain information is in the possession of the other party or that there hasn’t been sufficient disclosure of information, then that party can insist that, that information or material be produced and inspected and for copies to be made.
Often parties are tempted to keep away certain information about their financial circumstances from the other party and this could have serious consequences when the information is produced in court for the benefit of that party. It is immaterial that the non-disclosure is willful or accidental as the duty to disclose if absolute. If there is an indication that information is being withheld then the court may be likely to conclude that the assets or financial standing of that party is greater.
Therefore it is vital in all financial or property settlements to seek legal advice on your rights and obligations on disclosure from the beginning. Early legal advice also enables parties to identify the issues and enable disclosure of material to promote early resolution of financial cases without the need to lengthy and costly court process.
If you are interested to know something more about The importance of documents and the process of discovery and disclosure and Family Lawyers then please visit our website www.laclawyers.com.au
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