Disclosure

As I sat waiting for my matter to be called before the Judge this morning matter after matter involved solicitors standing up and asking the Court to make an Order that the other party provide full disclosure.

“Full disclosure” is a term family law solicitors and Judges use multiple times per day. It is a concept that is enshrined in legislation and is a basis tenant of property division matters in Australia.

But exactly what does it encompass and why is it important?

Chapter 13 of the Family Law Rules and Part 14 of the Federal Circuit Rules set out obligations that both parties are under to be open and honest about their respective assets, debts and financial circumstances.

This includes providing information and disclosure about the following:

•  the value you say is attributable to items owned or interests in any assets
•  the amount owing on any mortgages, loans or credit cards
• the value of your superannuation interests
• monies received, or earned, during the relationship and/or since separation
• if you have already received an inheritance, or if you are about to receive an inheritance,
•  if you have or will obtain a work payout or an insurance or compensation claim
• if you receive employee share benefits
• items (including cash) you have given away (at market price, at a lower price or for free),
• if you expect to commence/leave/change jobs and earn a significantly different amount.

That is not an exhaustive list.

So why is disclosure important?

The other side, and the Court, needs to know all the facts – the full picture – in order to make an informed decision (or in the case of the Court, a judgment) about how to divide the assets, what the true effect of the division is, and what each party will walk away with.

While the process of providing full disclosure may feel invasive, if a party does not make full disclosure, or even deliberately hides them from the other side, the impact on the end result can be significant. In coming to a decision a Judge can make adverse findings against the person not making full disclosure – that is, a finding that they are not to believed about anything. And the Judge, if persuaded that the non-disclosure was deliberate, can in fact increase the share of property to the other party to reflect the impact and, usually costs, of the intentionally poor behavior of the non-disclosing party.

But it’s not just during a matter that lack of disclosure can be significant. If a decision has already been made, or an agreement reached, a Court can re-open the proceedings on the application of the party who has since learned that there has been a lack of disclosure, set aside the existing Orders and make new Orders. Additionally, a costs order can be made against the non-disclosing party.

In addition to the above, I always say to clients two things:

• In today’s digital world, there is almost nothing which cannot be found out – if necessary by subpoena - so you are better to be upfront. You are better to be honest than caught revealing something for the first time in the witness box, or even worse, when a review application is brought; and
• Disclosing new assets does not automatically mean your ex will share in those assets. The division will still depend on all the other contributions and future needs/resources being considered.

Privacy and family law

Standing outside Court recently I noticed someone taking a photograph of a small group of people. Nothing too unusual there. But, what was being photographed was a person having discussions with someone who appeared to be their solicitor and another person who appeared to be their barrister. The only person posing was the ‘client’. The photograph included the face of the client, and the profiles of the solicitor and barrister and, in the background, the Court building.

Now, I have no idea what use this photo was going to be put to.

 
But it did turn my mind to the issue of privacy in the family law system.

We are all entitled to our views and opinions. But, when you publish them for a wider audience, say on the internet, you are allowing other people to read your words or see your images.

For most of the time in family law that means that Facebook comments, text messages, emails, Tweets, and blog posts are printed and then attached to affidavits which are filed in Court and can be then form part of the proceedings. These words and images can then impact directly on the outcome of the proceedings. Such an impact can be far beyond what was intended.

But published words and images can go even further than that – the person publishing them can be found guilty of committing an offence under section 121 of the Family Law Act which can be punishable by imprisonment.

I’m not suggesting that the photograph I saw being taken would fall in that category but over the years the Courts have made use of section 121 of the Family Law Act to protect the privacy of people involved in family law proceedings.

For example, in a 2013 judgment, reported as Lackey & Mae [2013] FMCAfam 284, the Father and members of his family, posted comments on Facebook about his family law proceedings.

The solicitor for the Mother sent a letter to the Father requesting that such behavior stop and this letter contained a warning regarding the risk of penalty for breaching section 121 of the Family Law Act. Despite this warning, the Father continued to post comments on Facebook.

The Judge noted that the Father’s behavior not only put him at risk of conviction under section 121 (with potential for imprisonment) but also more generally contempt of Court (also with potential for imprisonment).

The Judge made Orders that the Father and members of his family were restrained from publishing or otherwise distributing any material relating to the proceedings, the children, the Mother or members of her family, including publication on Facebook or other social media site and to remove all reference to the proceedings from Facebook. The Judge also Ordered that the Court Marshal and the Australian Federal Police be given the judgment and that the Marshal monitor social media for postings made by the Father or his family for the next two years. Should breaches be found the Marshal was ordered to investigate and prosecute if appropriate.

While the photograph I saw being taken was perhaps a far cry from the behavior in the Lackey & Mae case it served as a reminder to me of the vital privacy rules that exist in relation to family law proceedings and the results that can flow from breaches of those rules.