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At the 12th Australian Family Lawyers Conference held in Singapore in June 2011 the opportunity was taken during an Ethics workshop led by Federal Magistrate Tom Altobelli to consider appropriate self-help measures in obtaining disclosure. Most obviously it looked at the position adopted by the English Court of Appeal in Imerman. In a very controversial decision, the Court of Appeal said that family law should follow civil law practice notwithstanding very different objectives and dynamics. There should be no self help, and any documents obtained in that way should be returned without copies being kept until the disclosure obligation had been undertaken in the court process. Instead there should be redress to search orders, inferences and court adjudication, all thoroughly litigious and expensive. It is little wonder that the decision has been universally condemned as completely out of keeping with the whole stance and direction of family law and in effect a "cheats charter".
So how would it fare down under?
Perhaps unsurprisingly, Australia wanted to give every chance to the more vulnerable applicant party who might otherwise not get a fair go at ascertaining the resources of the other spouse who had a duty to disclose in any event and might not do so! This would cover bank statements either lying open on the dining room table or in filing cabinets at home. It would include e-mails available on communal laptops and computers. Breaking into desks might need some justification but documents obtained would certainly not be refused.
Naturally there had to be an awareness of the civil law and indeed criminal law eg interference with mail. However in reality this is rarely an issue. The importance of the disclosure exercise trumped other requirements. The fact that this may be different to civil law requirements was justified on the basis that it was different proceedings with different objectives.
The Court of Appeal in Imerman told English solicitors they should use search orders, previously known as Anton Pillar orders, even though they are extremely expensive and sometimes unnecessarily cumbersome. John Butler of Butlers Solicitors and Barristers of Western Australia reported that the Australian courts are following the English example of the requirements for an independent supervising solicitor on the operation of search orders. He also recommended an IT consultant attended because invariably the search would include IT records. For this reason, recourse to the use of search orders in family court proceedings has fallen: they are disproportionately expensive. Australian practice has relied on the use of proportionate and reasonable self-help measures to determine full disclosure. The English Court of Appeal has relied on disproportionate and unreasonable measures and thereby meant full disclosure is much less likely to occur and therefore produce a less fair and just outcome.
Sometimes one needs a very similar jurisdiction to highlight even more keenly the injustices and unfairness within one's own jurisdiction. Australia has shown how retrograde, unjust and also discriminatory the Imerman decision is. The losers are invariably women, who are the applicants for financial provision, less aware of the financial dealings of their spouse, less financially able to afford the costs of litigation and expensive search orders and often less willing to risk pursuing uncertain courses of action.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
This work provides commentary, checklists, procedural guides and precedents on the subject in a...