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disclosure

Four days to launch and there is much buzz in the family law profession about what next Wednesday will bring!  The new Family Law Rules, which will give effect to the initiatives set out in the Central Practice Direction have yet to be circulated widely, although have been approved by the requisite number of judges and will take effect on 1 September.

As discussed previously, whilst the emphasis is upon the prospect of ensuring all material disclosure has been exchanged prior to the initiation of court proceedings, it is expected that the Rules will also provide quite detailed requirements for ensuring that disclosure has been provided after proceedings are initiated in financial matters particularly.

Disclosure is a term used to describe the production to the other party or parties of any documentation which is relevant to the issues in dispute.  In the ordinary course in property settlement matters, they are documents that identify the property pool and/or the income of the parties; things like taxation returns, property contracts, previous valuations, mortgage statements, bank statements and the like.  Ultimately, any disclosure requested must be relevant and obviously, there is great value in providing disclosure as early as possible to reduce the issues in dispute and allow for resolution at the first opportunity.

There is a requirement of disclosure in parenting matters too, often neglected, but involving an active obligation to provide both information and documentation in relation to:

  • A child’s wellbeing, including educational issues, medical issues and behavioural concerns;
  • Any issues which would bear upon the assessment of  parent’s capacity to provide a safe environment, like criminal proceedings, drug use and the results of testing undertaken, medical and psychological issues; and
  • Effectively any other documentation which has the potential to bear upon what the best arrangement for a child would be in the circumstances.

In the ordinary course, it is very difficult to progress a matter to meaningful negotiation in the context of a dispute resolution event, and certainly a hearing, without disclosure having been significantly advanced or finalised.  It is evident under the new regime that a failure to provide disclosure promptly might well result in significant cost consequences.

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