Family Law Disclosure Rules

A direct extract from Family Law Rules- Parts 13.1 and 13.2

  

PART 13.1 — DISCLOSURE BETWEEN PARTIES 

Division 13.1.1 — General duty of disclosure 

RULE 13.01 GENERAL DUTY OF DISCLOSURE 

13.01(1) Each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner. 

Note Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party's duty of disclosure, including: 

(a) disclosure of financial circumstances (see Division 13.1.2);

  

(b) disclosure and production of documents (see Division 13.2.1); and 

  

(c) disclosure by answering specific questions in certain circumstances (see Part 13.3).

  

13.01(2) The duty of disclosure starts with the pre-action procedure for a case and continues until the case is finalised. 

Note The duty of disclosure applies to a case guardian for a child and a person with a disability (see subrule 6.13(2)). 

Division 13.1.2 — Duty of disclosure — financial cases 

RULE 13.02 PURPOSE OF DIVISION 13.1.2 

13.02(1) This Division sets out the duty of disclosure required by parties to a financial case. 

13.02(2) This Division does not apply to a party to a property case who is not a party to the marriage to which the application relates, except to the extent that the party's financial circumstances are relevant to the issues in dispute. 

RULE 13.03 DEFINITION 

13.03 In this Division: 

party to a financial case includes a payee or other respondent to an enforcement application. 

RULE 13.04 FULL AND FRANK DISCLOSURE

13.04(1) A party to a financial case must make full and frank disclosure of the party's financial circumstances, including: 

(a) the party's earnings, including income that is paid or assigned to another party, person or legal entity;

(b) any vested or contingent interest in property;

(c) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

(d) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

(e) the party's other financial resources;

(f) any trust: 

(i) of which the party is the appointor or trustee;

(ii) of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;

(iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;

(iv) over which the party has any direct or indirect power or control;

(v) of which the party has the direct or indirect power to remove or appoint a trustee;

(vi) of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;

(vii) of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or 

(viii) over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;

(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim: 

(i) in the 12 months immediately before the separation of the parties; or 

(ii) since the final separation of the parties; and 

(h) liabilities and contingent liabilities.

13.04(2) Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business. 

13.04(3) In this rule: 

legal entity means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity. 

Note The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case. 

RULE 13.05 FINANCIAL STATEMENT (FORM 13)

13.05(1) A party starting, or filing a response or reply to, a financial case (other than by an Application for Consent Orders (Form 11)) must file a Financial Statement (Form 13) at the same time. 

13.05(2) If a party is aware that the completion of a Form 13 will not fully discharge the duty to make full and frank disclosure, the party must also file an affidavit giving further particulars. 

Note The court may order a party to file an affidavit giving further particulars in relation to the party's financial affairs. 

RULE 13.06 AMENDMENT OF FINANCIAL STATEMENT (FORM 13)

13.06(1) This rule applies if, before a conciliation conference, pre-trial conference or trial, or at the time of seeking a consent order, a party's financial circumstances have changed significantly from the information set out in the Form 13 or affidavit filed under rule 13.05. 

13.06(2) At least 7 days before the conciliation conference, pre-trial conference or trial, or at the time of seeking a consent order, the party must file: 

(a) a new Form 13 with the amendments clearly marked; or 

(b) if the amendments are able to be clearly set out in 300 words or less, an affidavit containing details about the party's changed financial circumstances. 

  

Division 13.2.1 — Disclosure of documents — all cases 

RULE 13.07 DUTY OF DISCLOSURE — DOCUMENTS 

13.07 The duty of disclosure applies to each document that: 

(a) is or has been in the possession, or under the control, of the party disclosing the document; and 

(b) is relevant to an issue in the case. 

Note 1 For documents that parties must produce to the court: 

(a) on the first court date for a Maintenance Application, see rule 4.15;

(b) on the first court date for a Child Support Application or Appeal, see rule 4.19;

(c) at a conference in a property case, see Part 12.2; and 

(d) at a trial, see Chapters 15 and 16.

Note 2 Rule 13.15 provides that a party must file a written notice about the party's duty of disclosure. 

Note 3 Rule 15.76 provides that a party may give another party a notice to produce a specified document at a hearing or trial. 

Note 4 A document disclosed to a party must be used for the purposes of the case only and must not be used for any other purpose without the consent of the other party or an order.

RULE 13.08 INSPECTION OF DOCUMENTS 

13.08(1) A party may, by written notice, require another party to provide a copy of, or produce for inspection, a document referred to: 

(a) in a document filed or served by a party on another party or child representative; or 

(b) in correspondence prepared and sent by or to another party or child representative.

13.08(2) A party required to provide a copy of a document must provide the copy within 21 days after receiving the written notice. 

RULE 13.09 PRODUCTION OF ORIGINAL DOCUMENTS 

13.09 A party may, by written notice, require another party to produce for inspection an original document if the document is a document that must be produced under the duty of disclosure. 

RULE 13.10 DISCLOSURE BY INSPECTION OF DOCUMENTS 

13.10(1) If a party is required to produce a document for inspection under rule 13.08 or 13.09, the party must: 

(a) notify, in writing, the party requesting the document of a convenient place and time to inspect the document;

(b) produce the document for inspection at that place and time; and 

(c) allow copies of the document to be made, at the expense of the party requesting it.

13.10(2) The time fixed under paragraph (1)(a) must be within 21 days after the party receives a written notice under rule 13.08 or 13.09 or as otherwise agreed. 

Note The court may shorten or extend the time for compliance with a rule (see rule 1.14). 

RULE 13.11 COSTS FOR INSPECTION 

13.11 A party who fails to inspect a document under a notice given under rule 13.08 or 13.09 or paragraph 13.20(3)(a) may not later do so unless the party tenders an amount for the reasonable costs of providing another opportunity for inspection. 

Note The court may, on application, order that a party not pay costs (see rule 1.12). 

RULE 13.12 DOCUMENTS THAT NEED NOT BE PRODUCED 

13.12 A party must disclose, but need not produce to the party requesting it: 

(a) a document for which there is a claim for privilege from disclosure; or 

(b) a document a copy of which is already disclosed, if the copy contains no change, obliteration or other mark or feature that is likely to affect the outcome of the case. 

Note Rule 13.13 sets out the requirements for challenging a claim of privilege from disclosure.

RULE 13.13 OBJECTION TO PRODUCTION 

13.13(1) This rule applies if: 

(a) a party claims: 

(i) privilege from production of a document; or 

(ii) that the party is unable to produce a document; and 

(b) another party, by written notice, challenges the claim.

13.13(2) The party making the claim must, within 7 days after the other party challenges the claim, file an affidavit setting out details of the claim. 

Note If there is a dispute about disclosure, an application may be made to the court (see rules 13.18 and 13.22). 

RULE 13.14 CONSEQUENCE OF NON-DISCLOSURE 

13.14 If a party does not disclose a document as required under these Rules: 

(a) the party: 

(i) must not offer the document, or present evidence of its contents, at a hearing or trial without the other party's consent or the court's permission;

(ii) may be guilty of contempt for not disclosing the document; and 

(iii) may be ordered to pay costs; and 

(b) the court may stay or dismiss all or part of the party's case. 

Note 1 Under rule 15.76, a party who discloses a document under this Part must produce the document at the trial if a notice to produce has been given. 

Note 2 Section 112AP of the Act sets out the court's powers in relation to contempt of court.

RULE 13.15 UNDERTAKING BY PARTY 

13.15(1) A party (except a child representative) must file a written notice: 

(a) stating that the party: 

(i) has read Parts 13.1 and 13.2 of these Rules; and 

(ii) is aware of the party's duty to the court and each other party (including any child representative) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner;

(b) undertaking to the court that, to the best of the party's knowledge and ability, the party has complied with, and will continue to comply with, the duty of disclosure; and 

(c) acknowledging that a breach of the undertaking may be contempt of court.

13.15(2) A party commits an offence if the party makes a statement or signs an undertaking the party knows, or should reasonably have known, is false or misleading in a material particular. 

Penalty: 50 penalty units. 

Note Subrule (2) is in addition to the court's powers under section 112AP of the Act relating to contempt and the court's power to make an order for costs. 

13.15(3) If the court makes an order against a party under section 112AP of the Act in respect of a false or misleading statement mentioned in subrule (2), the party must not be charged with an offence against subrule (2) in respect of that statement. 

13.15(4) A notice under subrule (1) must comply with subrule 24.01(1) and be as follows: 

''This Notice is filed in accordance with rule 13.15 of the Family Law Rules 2004. 

I [insert name]: 

(a) have read Parts 13.1 and 13.2 of the Family Law Rules 2004; 

(b) am aware of my duty to the court and to each other party (including any child representative) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner; and 

(c) undertake to the court that, to the best of my knowledge and ability, I have carried out and complied with my duty of disclosure. 

I understand the nature and terms of this undertaking and that if I breach the undertaking, I may be guilty of contempt of court. 

...................................................

(signature of person making statement) ...................................................

(full name of person making statement) 

...................................................

(date of signature)

...................................................

(signature of witness) ...................................................

(full name of witness) 

...................................................

(date of signature)

Note 1 For the consequences of failing to comply with this rule, see rule 11.02. 

Note 2 A party who breaches an undertaking may be found guilty of contempt of court and may be punished by imprisonment (see section 112AP of the Act). 

RULE 13.16 TIME FOR FILING UNDERTAKING 

13.16 A notice under rule 13.15 must be filed: 

(a) for a case that has a pre-trial conference — at least 21 days before the date fixed for the pre-trial conference; and 

(b) for any other case — at least 7 days before the date fixed for the hearing or trial. 

Note The court may shorten or extend the time for compliance with a rule (see rule 1.14).

History 

Division 13.2.2 — Disclosure of documents — certain applications 

RULE 13.17 APPLICATION OF DIVISION 13.2.2 

13.17 This Division applies to the following applications: 

(a) an Application for Divorce;

(b) an Application in a Case;

(c) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;

(d) a Maintenance Application;

(e) a Child Support Application or Appeal;

(f) a Small Claim;

(g) a Contravention Application;

(h) a Contempt Application;

(i) a case listed for trial without a pre-trial conference. 

RULE 13.18 PARTY MAY SEEK ORDER ABOUT DISCLOSURE 

13.18 A party to an application under this Division may seek only the following orders about disclosure: 

(a) that another party deliver a copy of a document;

(b) that another party produce a document for inspection by another party. 

Division 13.2.3 — Disclosure of documents — Applications for Final Orders 

RULE 13.19 APPLICATION OF DIVISION 13.2.3 

13.19(1) This Division applies to all Applications for Final Orders (Form 1), except: 

(a) an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment;

(b) a Maintenance Application; 

(c) a Child Support Application or Appeal;

(d) a Small Claim; or 

(e) a case listed for trial without a pre-trial conference.

13.19(2) This Division does not affect: 

(a) the right of a party to inspect a document, if the party has a common interest in the document with the party who has possession or control of the document;

(b) another right of access to a document other than under this Division; or 

(c) an agreement between the parties for disclosure by a procedure that is not described in this Division. 

RULE 13.20 DISCLOSURE BY SERVICE OF A LIST OF DOCUMENTS 

13.20(1) After the final resolution event for a case, a party (the requesting party) may, by written notice, ask another party (the disclosing party) to give the requesting party a list of documents to which the duty of disclosure applies. 

13.20(2) The disclosing party must, within 21 days after receiving the notice, serve on the requesting party a list of documents identifying: 

(a) the documents to which the duty of disclosure applies;

(b) the documents no longer in the disclosing party's possession or control to which the duty would otherwise apply (with a brief statement about the circumstances in which the documents left the party's possession or control); and 

(c) the documents for which privilege from production is claimed. 

Note Rule 13.07 sets out the documents to which the duty of disclosure applies.

13.20(3) The requesting party may, by written notice, ask the disclosing party to: 

(a) produce a document for inspection; or 

(b) provide a copy of a document. 

13.20(4) The disclosing party must, within 14 days after receiving a notice under paragraph (3)(b), give the requesting party, at the requesting party's expense, the copies requested, other than copies of documents: 

(a) in relation to which privilege from production is claimed; or 

(b) that are no longer in the disclosing party's possession or control.

13.20(5) If a document that must be disclosed is located by, or comes into the possession or control of, a disclosing party after disclosure under subrule (2), the party must disclose the document within 7 days after it is located or comes into the party's possession or control. 

Note The court may shorten or extend the time for compliance with a rule (see rule 1.14). 

RULE 13.21 DISCLOSURE BY INSPECTION OF DOCUMENTS 

13.21(1) This rule applies if: 

(a) a party has requested the production of a document for inspection under paragraph 13.20(3)(a); or 

(b) it is not convenient for a disclosing party to provide copies of documents under paragraph 13.20(3)(b) because of the number and size of the documents.

13.21(2) The disclosing party must, within 14 days after receiving the notice under subrule 13.20(3): 

(a) notify the requesting party, in writing, of a convenient place and time at which the documents may be inspected;

(b) produce the documents for inspection at that place and time; and 

(c) allow copies of the documents to be made at the requesting party's expense. 

RULE 13.22 APPLICATION FOR ORDER FOR DISCLOSURE 

13.22(1) At or after the final resolution event, a party may seek an order that: 

(a) another party comply with a request for a list of documents in accordance with rule 13.20;

(b) another party disclose a specified document, or class of documents, by providing to the other party a copy of the document, or each document in the class, for inspection by the other party;

(c) another party produce a document for inspection;

(d) a party file an affidavit stating: 

(i) that a specified document, or class of documents, does not exist or has never existed; or 

(ii) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of that party; or 

(e) the party be partly or fully relieved of the duty of disclosure.

13.22(2) A party making an application under subrule (1) must satisfy the court that the order is necessary for disposing of the case or an issue or reducing costs. 

Note 1 Before making an application under this Chapter, a party must make a reasonable and genuine attempt to settle the issue to which the application relates (see rule 5.03). 

Note 2 An application under this Chapter is made by filing a Form 2 and an affidavit (see rules 5.01 and 5.02). The court may allow an oral application at the conciliation conference or another court event. 

13.22(3) In making an order under subrule (1), the court may consider: 

(a) whether the disclosure sought is relevant to an issue in dispute;

(b) the relative importance of the issue to which the document or class of documents relates;

(c) the likely time, cost and inconvenience involved in disclosing a document or class of documents taking into account the amount of the property, or complexity of the corporate, trust or partnership interests (if any), involved in the case; and 

(d) the likely effect on the outcome of the case of disclosing, or not disclosing, the document or class of documents.

13.22(4) If the disclosure of a document is necessary for the purpose of resolving a case at the conciliation conference, a party (the requesting party) may, at the first court event, seek an order that another party: 

(a) provide a copy of the document to the requesting party; or 

(b) produce the document to the requesting party for inspection and copying.

13.22(5) The court may only make an order under subrule (4) in exceptional circumstances. 

13.22(6) If a party objects to the production of a document for inspection or copying, the court may inspect the document to decide the objection. 

RULE 13.23 COSTS OF COMPLIANCE 

13.23 If the cost of complying with the duty of disclosure would be oppressive to a party, the court may order another party to: 

(a) pay the costs;

(b) contribute to the costs; or 

(c) give security for costs. 

RULE 13.24 ELECTRONIC DISCLOSURE 

13.24 The court may make an order directing disclosure of documents by electronic communication.

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