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How Not to Give Disclosure in a Trial

Family Court of Australia at Hobart

FILE NUMBER: SYC 8557 of 2015

Mr Pearson

Applicant

And

Ms Pearson

Respondent

 

REASONS FOR JUDGMENT

INTRODUCTION

5.                  On 30 December 2015 the husband filed an application for property orders and sought interim orders that pursuant to s 79A of the Family Law Act 1975 (Cth) (‘the Act’) the Consent Orders made at Suburb B Local Court be set aside.  The application went on to claim orders for property and costs.  In addition, he sought interim orders in relation to the wife dealing with property.

6.                  This proceeding came before me in a call-over on 20 March 2019 and it was listed for the hearing of the Application under s 79A of the Act on 29 April 2019.  Directions were made for filing affidavits. 

7.                  On 29 and 30 April 2019 the hearing proceeded.  However, the husband’s case had changed somewhat and it was adjourned for further hearing on 24 and 27 May 2019.  Leave was given to the legal practitioners for the wife to issue some subpoenas and obtain documents, through the husband, from Centrelink.

8.                  Subsequently, I ordered that a copy of the Transcript of the April 2019 proceedings to be made available to the solicitors for each of the parties.  This was done primarily because after the adjournment of the April 2019 hearing I became unwell and was unable to return to work until mid-October 2019.  The hearing of this matter was administratively adjourned and continued on 17 and 18 October 2019 at Sydney.

9.                  Part of the material sought by the solicitors for the wife were documents from Centrelink.  Those documents were provided to the husband’s solicitors by Centrelink in a letter dated 8 July 2019.[1]  The documents produced by Centrelink were voluminous and contained about six hundred pages.  Perversely, the husband and his legal advisors did not provide a copy of those documents to the solicitors for the wife until the morning of the re-commencement of hearing on 17 October 2019. 

10.             This was at best unfortunate and at worst an attempt to prevent a proper and timely examination and consideration of those relevant and important documents.  It caused a waste of about an hour or so of hearing time and could have caused further delay or even an adjournment of the hearing.  It may have given rise to a serious forensic disadvantage to the wife and her legal advisors.

11.             The Court was not proffered any adequate reason why these documents were not provided promptly to the wife’s solicitors.  An excuse was issued that the documents were to be produced at court and this was the first occasion; that assertion was a nonsense.  The wife’s solicitors were actively seeking that material and the husband’s solicitor responded with mute dismissal.

12.             The husband and those advising him have an obligation for ongoing disclosure. As recently as January 2019 the Full Court in Bulow & Bulow [2019] FamCAFC 3 said:-

80.       … The obligation of disclosure in financial proceedings is ongoing, including up to the point when orders are made.   Equally importantly, as authority has consistently emphasised, disclosure must be both “full and frank”.  

13.             This must apply to the production of documents.

14. This type of delay and obfuscation in production of documents to another party is unacceptable.  It brings the legal profession into disrepute and has the capacity to undermine the judicial process.  Disclosure is not a game to be played by parties and their legal practitioners.  All parties and members of the legal profession are reminded that in family law property proceedings financial disclosure and production of relevant documents are a matter of ‘show and tell’ not ‘hide and seek’.

Posted in: Derek Legal Blog at 02 March 20

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