Getting access to documents

1 April 2019

Disclosing financial information is vital, if a fair property division is to be achieved. It comes as no surprise then that some spouses make this process difficult. If documents are not willingly provided can you force disclosure?

The Family Law Rules impose a ‘duty of disclosure’ and requires that each party “give full and frank disclosure of relevant documents in a financial matter” to each other.

If a party then refuses or is believed to not be fully discharging their duty to disclose, consideration should be given to applying to the court for a subpoena. A subpoena is a written order from the court that tells a person to:

  • give evidence; or
  • produce documents, (records or things); or
  • produce documents and give evidence.

Before a subpoena will be granted, you need to tell the court what kind of subpoena is required and also convince the court that it is needed. You can get up to 3 subpoenas in the Family Court and up to 5 in the Federal Circuit Court. The subpoena will usually be issued to a third-party person or organisation that may hold the relevant financial documents such as, a bank or an accountant.

Both the other party to the court proceedings and the person or organisation who the subpoena is directed to can object to producing the requested documents.  The court will then decide if the documents should be produced.

The court has recently considered a case where (2) companies appealed a lower court decision dismissing their objection by the court to produce documents which had been subpoenaed by the wife.

The companies included the corporate trustee of a family trust of which the husband was a beneficiary and a company controlled by the husband until he transferred control to his father. The companies argued that to comply with the subpoena by the wife and produce the documents was oppressive and that the documents sought were irrelevant.

The court dismissed the objection on the ground that the documents had relevance to the proceedings between the wife and husband.

The duty of disclosure imposes a considerable obligation on each party to properly examine and sort through all relevant documents in that party’s ‘power, possession and/or control’ and produce all relevant documents to the other party (and to the court in certain circumstances) in compliance. There can be cost implications if a party does not comply with their duty of disclosure.

A party to proceedings should also be aware of specific disclosure requirements before the first court date and conciliation conference.

If you wish to know more about the duty of disclosure, contact our Brisbane office today on (07) 3221 4300 or email law@mlynch.com.au to arrange a fixed cost, no obligation appointment with an experienced family lawyer.

2019-04-22T23:20:19+00:00

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