Property Adjustments: Disclosure Obligations, Credibility & Subpoena

I was posed some questions by a colleague as a result of a recent post. I chose to answer those questions by way of a separate post.

The Questions

• Where there is a suspicion that a party has not been entirely truthful about their income and / or the value of assets in their possession,
• Is it open to the legal representatives of a litigant to issue a subpoena for credit card applications / finance applications?
• In my humble opinion, so much credibility would be lost in attempting to mislead the Court or other party.
• Do you agree?

Disclosure Obligations
In Financial Cases parties have an obligation to make Full and Frank Disclosure
• Family Law Rules 2004 – Rule 13.04
• Federal Circuit Court Rules 2001 – Regulation 24.03

Family Law Rules 2004
13.15 Undertaking by party

(1) A party (except an independent children’s lawyer) 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 independent children’s lawyer) 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.

(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.

s79A (1)(a) of the Family Law Act 1975 enables the setting aside of orders altering property interests where the Court is satisfied that “There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance”

s90K (1)(a) of the Family Law Act enables the setting aside of a financial agreement or termination agreement if the Court is satisfied that the agreement was obtained by fraud (including non-disclosure of a material matter)

Credibility
“Proper discovery by both parties is essential and clearly the failure to make proper discovery can lead to adverse influences being drawn about a client’s credibility- and have a significant effect upon the ultimate result” 1

“In Weir the Full Court commented: –

“It seems to us that once it has been established that there has been a deliberate non-disclosure … then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature” 2

Subpoena
The Court is empowered to issue subpoena
• Family Law Rules 2004 Chapter 15 Evidence Part 15.3 Subpoenas
• Federal Circuit Court Rules 2001 Part 15A—Subpoenas and notices to produce

It is common practice for some legal practitioners to issue subpoenas for financial records in family law property adjustment matters. That would include the issuing of subpoena for credit card applications / finance applications, if they were thought to be relevant.

Conclusion
Where there is a suspicion that a party has not been entirely truthful about their income and / or the value of assets in their possession it is open to the legal representatives of a litigant to issue a subpoena for credit card applications / finance applications.

Significant credibility would be lost in attempting to mislead the Court or other party.

Bearing in mind the power of the Court to set aside orders altering property interests, financial agreements and termination agreements, there are also great costs penalties at stake for the party who chooses not to fully disclose their position.

1. see Weir (1993) FLG 92 – 338; Black & Kellner (1992) FLC 92-287 
2. Preparing and Presenting a Property Case In The Federal Magistrates Court – Federal Magistrate Michael Baumann at (5) 

A Crisis of Confidence

The Rule of Law
Queensland is a democratic society. Within that democracy Queensland has chosen to make the rule of law a constituent part of its justice system and therefore its societal structure. In its simplest form the rule of law endeavours to ensure justice for all according to law by placing no one above the law. Adhering to such a societal structure does not always come easy and is not without its challenges. However a society without rules quickly becomes no society at all.

The rule of law underpins constitutional power in Queensland. At any given time within a community embracing the rule of law there will be debate as to what is and is not, may or may not be correct and proper for that community. So long as that debate is confined to adhering to the structure that ultimately defines the rule of law, the society can continue to function. Once a decision is taken to go outside that structure, the result can be that the system fails to operate to uphold its own foundational concept, namely the rule of law, and then the system itself undermines its own existence. In that case the society finds itself without any system of rules to guide it as to its behaviour.

The Doctrine of Precedent
A constituent part of the rule of law is the doctrine of precedent. “The doctrine of precedent is a fundamental constraint on judicial decision-making in Australia. The general idea behind the doctrine of precedent is that when [judges] are deciding cases, [they] must pay proper respect to past judicial decisions. … The moral value of the doctrine of precedent is in the way it serves the political ideal of the rule of law; according to that ideal, institutions of the state, like courts, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties.” 1