The Importance of Full and Frank Disclosure in Family Law Financial Proceedings and the Many Consequences of Non-Disclosure
| Published date | 01 March 2017 |
| DOI | 10.1177/0067205X1704500105 |
| Author | Robyn Carroll,Hugh P K Kopsen |
| Date | 01 March 2017 |
| Subject Matter | Article |
THE IMPORTANCE OF FULL AND FRANK DISCLOSURE IN
FAMILY LAW FINANCIAL PROCEEDINGS AND THE MANY
CONSEQUENCES OF NON-DISCLOSURE
Hugh P K Kopsen* and Robyn Carroll**
‘God forbid the truth should be concealed in any way.’
1
ABSTRACT
This article examines the duty of full and frank disclosure of parties to family law
financial proceedings in A ustralia, and the potential consequences of failure to comply
with this fundamental obligation. The duty is briefly compared and contrasted with
disclosure requirements in civil litigation and criminal proceedings to demonstrate the
uniqueness of the family law position. The rationale and content of the duty is
considered in light of recent cases including the High Court decisions of Stanford v
Stanford (2012) 247 CLR 108 and Hall v Hall (2016) 257 CLR 490. The article presents a
three-pronged taxonomy of the consequences of non-compliance with the duty, namely
evidential, procedural, and final orders/related consequences. We conclude that the
absolute nature of the duty and the comprehensive nature of the potential consequences
of failure to make full disclosure mean that parties and legal practitioners do so at their
peril.
I INTRODUCTION
The modern family law jurisdiction is to a large extent based upon there being open
dialogue between both parties and the bench, a desire to get to the ‘real’ issues, and to
resolve disputes in a timel y and efficient manner. So that these ideas ca n be attained,
* Solicitor, Criminal Law Division, Legal Aid WA. (The views expressed by this author do not
necessarily represent the views of Legal Aid WA).
** Professor, University of Western Australia Law School.
This article is a revised version of a paper presented to the Family Law Practitioners’
Association of Western Australia on 30 August 2016. The authors would like to acknowledge
David Mottolini for contributing insights to aspects of this paper and to thank the two
anonymous reviewers for their comments.
1
Trial of the Seven Bishops (1688) 12 St Tr 183, 310 (Wright CJ).
98 Federal Law Review Volume 45
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family law courts in both England
2
and then Australia
3
recognised the obligation of full
and frank disclosure of all material facts, to each party and the court, as a crucial duty
imposed upon parties in family law proceedings, including proceedings in relation to
financial matters under the Family Law Act 1975 (Cth) (‘Ac t’).
4
In Australia, the duty
applies at common law and pursuant to both the Family Law Rules 2004 (Cth) (‘Rules’)
and the Federal Circuit Court Rules 2001 (Cth) (‘FCC Rules’).
5
While it is well settled that
there is a ‘heavy obligation on parties in property cases to make complete disclosure’,
6
albeit limited to disclosu re of information ‘relevant to the case’,
7
recent cases
demonstrate that questions continue to arise as to the content of the duty and how the
court should respond to non-disclosure.
Are there problems with the disclosure rules? In 2011 the A ustralian Law Reform
Commission (‘ALRC’) reported that there do not appear to be concerns that the duty in
the Family Court is overbroad.
8
Rather, the reported concern was that there is too little,
instead of too much, disclosure.
9
Detection and proof of non-disc losure remain a
challenge for a party who believes the other party has not discharged their obligation.
10
To the extent that parties do not, or are unable or unwilling to, utilise court processes to
obtain relevant information and documents, the purposes of the duty will not always be
achieved. Echoing what the ALRC reported, concerns have been expressed that
mechanisms for ensuring disclosure are inadequate, particularly in case s involving
family viole nce. This has led to calls on the government to take steps to increase the
2
Livesey (formerly Jenkins) v Jenkins [1985] AC 424, 437–8, 443, 445 (Lord Brandon) (‘Livesey’);
Sharland v Sharland [2016] AC 871, 881–2 [21]–[22] (Baroness Hale DP).
3
In the Marriage of Briese (1985) 82 FLR 369, 370 (Smithers J); Oriolo v Oriolo (1985) 10 Fam LR
665, 666–7 (Emery, Fogarty and Murray JJ); In Marriage of Black (1992) 106 FLR 154, 159
(Nicholson CJ).
4
‘Financial matters’ is defined in s 4 of the Act. Financial matters include: spousal maintenance
(ss 74, 90SF(1) and modification of spousal maintenance orders in ss 83, 90SI); declarations of
interests in property (ss 78, 90SL); alter ation of interests in property (ss 79, 90SM); setting
aside property orders (ss 79A, 90SN); and transactions to defeat claims (s 106B).
5
Rules rr 1.08(1)(b), 13.01, 13.04; FCC Rules r 24.03.
6
Sadek v Hall (2015) 53 Fam LR 187, 194 [25] (Thackray, Strickland and Aldridge JJ).
7
Rules r 13.01(1); Carmel-Fevia v Fevia (2010) 43 Fam LR 405, 407–8 [1]–[5] (Cronin J); Moore v
Moore [2014] FLC 93–595, 79 358 [221], 79 359 [223] (Bryant CJ, Finn and Thackray JJ).
8
Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal
Courts, Report No 115 (2011) 130 [5.140].
9
Another important but different concern, beyond the scope of this article, is that parties and
their lawyers will sometimes seek disclosure unnecessarily. Requiring disclosure of
information or documents without sufficient justification of its relevance to the issues
between the parties can prolong the litigation (and settlement) process, unduly burden the
party from whom disclosure is sought, and defeat the purposes of the Rules and FCC Rules.
‘Reasonableness’ and ‘proportionality’ are touchstones of disclos ure requirements under
these rules, for example. For discussion see Reilly v Reilly [No 2] [2 016] FCCA 1706
(24 February 2016) [99]–[103], [109] (Judge Harman). For a more general discussion of
disclosure in civil proceedings and pre-action proceedings see Tania Sourdin, ‘Civil Dispute
Resolution Obligations: What Is Reasonable?’ (2012) 35 University of New South Wales L aw
Journal 889.
10
For suggested ways to combat non-disclosure see Ian Serisier and Tom Altobelli, Practising
Family Law (3rd edition, LexisNexis, 2012) 218–29 [16.6]–[16.25].
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