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Understanding Discovery And Disclosure In Family Law

19th Oct 2021 Blog
If you are someone who is currently going through the process of divorce, there are many ducks that you have to get in a row in order to ensure a successful outcome for your case. One of the most important aspects to consider in Family Law situations is discovery and disclosure. In accordance with the Family Law Rules 2004 and the Family Law Court’s pre-action procedures, all parties to a Family Law dispute are legally required to make full disclosure of any information and/or documentation that is relevant to the matter. Some of the information that is required includes each party’s assets, liabilities, expenses, income, superannuation and any other financial resources that pertain to the matter. The duty to disclose applies to both financial disputes and parenting matters. As you can imagine, it is paramount that parties comply with their duty to provide full and frank disclosure as it will help assist parties to both identify and even reduce issues in dispute. It is important to note that failure to provide disclosure (or providing false information) can result in the Family Court making final orders that you may deem unfair or even worse, parenting arrangements that are not in the best interest of the children.

So, What Exactly Am I Required to Disclose?

When it comes to financial matters, the duty to disclose relates to including information as to income, property, interests or any other financial resource that the party has access to.  This can include but is not limited to:
  • Pay slips and Centrelink statements;
  • Thorough details of assets, including appraisals of these assets;
  • Tax returns, estimates and/or assessments;
  • Bank statements, credit union accounts and/or building society;
  • Superannuation statements;
  • Loans and credit card statements;
  • Interests in any trust or company with supporting documentation.
Both parties will also be required to disclose information relating to the disposal of assets if the said disposal has occurred either during the year prior to separation or since separation. Disposal includes the sale of items (transferred, assigned or gifted) and items purchased with the funds that were acquired from the sale of assets.  If there are children involved, parties have a duty to disclose matters related to the care and living arrangements of a child. This can include school reports, medical reports, notes, letters, photos and any other relevant information that relates to the parenting capacity of both parties.

What Is Discovery? 

If your ex-spouse has chosen to contest your case (or vice versa), either party may ask for “discovery”. Discovery refers to the organised exchange of information between parties and its purpose is to prove the case of the examining party or to disprove the case of the party examined. The party who is being discovered is legally required to produce all the documents they have for inspection about the matters in question. Some of these documents may include financial statements, tax returns, bank statements and credit card statements. However, it is important to note that in cases where there are documents in dispute, the existence of the documents must be proven. In cases where the process of discovery is necessary, parties have two options: informal discovery or formal discovery. Informal discovery involves gathering information on your own, without the help of a lawyer. In order for informal discovery to be successful, the other party will have to be cooperative with the discussion. If they choose not to be, formal discovery with the help of an experienced family lawyer is recommended. Formal discoveries may involve interrogatories or written questions the other party will be required to answer in writing and under oath.

Is Discovery Beneficial?

Although discovery will indeed add more time and costs to your case, it is the only way both parties can enter a courtroom with full knowledge and disclosure about what the other party has up their sleeve. This is an integral process that will help to ensure that both parties have a fair and just chance in court. If you require assistance with your Family Law matter, one of our experienced family lawyers will be able to guide you through the process in detail. Call us at (03) 9670 7577 or contact us via our contact form for the best chance at a successful outcome for your case.