Parties to a property settlement dispute have an ongoing obligation to make full and frank disclosure of all information relevant to any issues in dispute.
The obligation on parties to provide full and frank disclosure continues throughout the proceedings until the dispute has been resolved. As such, disagreements can arise over the adequacy of disclosure provided by each party. A case earlier this year in the Federal Circuit and Family Court of Australia highlights the importance of approaching the task of disclosure with care and consideration.
Case summary
The wife filed an application in a proceeding seeking wide-ranging orders relating to the husband’s disclosure, including that he file an affidavit verifying the disclosure he had made.
The husband opposed the application brought by the wife on the basis that he had provided disclosure of the relevant documents sought by the wife, and that the other documents sought were irrelevant.
The court accepted the evidence of the husband and dismissed the wife’s application in a proceeding, with costs reserved.
Relevant commentary
The way the wife conducted her case attracted criticism from the Judge.
Part of the wife’s argument was that the disclosure which had been provided by the husband was oppressively voluminous, disorganised, and chaotic. It was submitted that the way the disclosure was provided imposed a significant burden on her to sift through all the material.
The husband’s response was that he had provided disclosure in an easily identifiable manner, in accordance with the wife’s requests for disclosure, and had provided a list of documents in compliance with rule 6.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The Judge accepted the husband’s evidence and found that the wife’s argument was unpersuasive and appeared to be no more than an assertion that the husband’s disclosure 'was inadequate because he did not present it in a manner which she found convenient.'
In addition, the Judge criticised the categories of documents sought by the wife as irrelevant, those being documents relating to the husband’s previous property settlement proceedings (which finalised eight-years prior to the subject relationship commencing), as well as disclosure about the source of the husband’s mother’s superannuation interest from inception onward.
The Judge found that the application of the wife was not helpful to the proceedings, nor was it consistent with the overarching purpose as set out at section 95 of the Family Law Act 1975 (Cth).
Key takeaways
In the case summarised above, the Judge highlighted that the duty of disclosure is not absolute and must be considered with respect to limitations of relevance, and compliance with the overarching purpose. As such, it is important that parties 'assess rationally and carefully not only the materiality and legitimacy of claims about disclosure, but their true importance in the overall litigation.'
This is particularly important where there are already adverse consequences that can arise if it is found that a party has failed to comply with their obligations to make full and frank disclosure. For further information about the consequences of non-disclosure, see Duty of disclosure – a case of deception and consequences.
A failure to be discerning in relation to disclosure could lead to 'ill-conceived and time-wasting applications about disclosure', or a party falling into non-compliance with their obligations. Both scenarios can carry serious consequences.
This case is a helpful reminder to litigants and to practitioners that:
- the duty to make full and frank disclosure is nuanced, and limited by relevance, and
- the overarching purpose and the primary objectives of efficiency, timeliness, and proportionality should be front of mind at all stages in family law matters.
