Federal Magistrates Court of Australia

4.62 The jurisdiction conferred on the Federal Magistrates Court overlaps with that of the Family Court and the Federal Court. This section of the chapter examines the obligations on parties to disclose information and documents in financial matters under the Court’s family law jurisdiction. It also considers the rules which apply in all proceedings before the Federal Magistrates Court for the discovery of documents. Procedures for discovery of documents prescribed in the Federal Magistrates Court Rules 2001 (Cth) are similar to the processes of the Federal Court. Similarly, procedures for disclosure in financial matters in the Federal Magistrates Court’s family law jurisdiction are similar to those applicable in the Family Court.

Obligation to discover documents

4.63 Section 45 of the Federal Magistrates Act 1999 (Cth) provides that discovery in relation to proceedings in the Federal Magistrates Court is not allowed unless the Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the discovery.

4.64 Section 45(2) of the Act requires the Court or a Federal Magistrate, in deciding whether to make a declaration for discovery of documents, to have regard to:

(a) whether allowing the discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.

Range of discoverable documents

4.65 If a declaration for discovery of documents is made under s 45 of the Federal Magistrates Act, the Court or Federal Magistrate may make an order for discovery:

(a) generally;

(b) in relation to particular classes of documents;

(c) in relation to particular issues; or

(d) by a specified date.^[94]

4.66 The Federal Magistrates Court Rules provide that a party may be required to discover documents which are or have been in that party’s possession, custody or control.^[95] However, a party may refuse to produce for inspection privileged documents disclosed in their affidavit of discoverable documents.^[96]

Process of discovery

4.67 Part 14 of the Federal Magistrates Court Rules prescribes procedures for the discovery of documents in all proceedings. Rule 14.02 provides that a declaration to allow discovery may be made on the application of a party or on the Court’s own motion.^[97] If a declaration is made, the Court may order discovery generally or look to fashion orders for discovery in relation to particular classes of documents or issues in the proceeding.^[98]

4.68 The Rules require the party ordered to give discovery to file an affidavit of documents.^[99] The Court may order the party to produce discoverable documents to the Court or to any other party for inspection, subject to any claim of privilege.^[100]

4.69 Rule 14.09 provides that a party who does not discover documents so ordered by the Court is not entitled to put the document in evidence or give evidence of the contents of the document, unless the Court gives leave.^[101]

Obligation to disclose documents in family law matters

4.70 Part 24 of the Federal Magistrates Court Rules imposes a duty of disclosure on parties to financial matters in the Court’s family law jurisdiction. This includes a requirement for the applicant and respondent to file and serve a financial statement, giving full and frank disclosure of financial circumstances, together with the application or response.^[102]

4.71 The Rules also impose an obligation on the respondent, in proceedings for maintenance, to disclose certain categories of documents—outlined below.^[103] In other financial matters, both the applicant and the respondent must file and serve on each other certain categories of documents—as discussed below.^[104]

Scope of disclosure obligations in family law matters

4.72 A financial statement filed and served pursuant to part 24 of the Federal Magistrates Court Rules must give full and frank disclosure of the party’s total direct and indirect financial circumstances, including details of any interest in property, income from all sources and other financial resources.^[105]

4.73 In proceedings for maintenance, the categories of documents that a respondent must bring to court include a taxation assessment and taxation return for the most recent financial year, bank records for the 12 months before the application was filed and the respondent’s most recent pay slip.^[106]

4.74 In other financial matters, the categories of documents that the parties must file and serve on each other include the parties’ three most recent taxation assessments and taxation returns, copies of the last four business activity statements (if a party has an Australian Business Number) and details of any superannuation plan.^[107]

Process of disclosure in family law matters

4.75 Rule 24.02 of the Federal Magistrates Court Rules provides that an applicant or respondent must file and serve a financial statement with their application or response at the commencement of proceedings.^[108]

4.76 In proceedings for maintenance, the respondent must bring the required categories of documents to the Court on the first court date.^[109] In other financial matters, unless the Court orders otherwise, the parties must serve the required categories of documents on each other within 14 days of the first court date.^[110]