//
Discovery

Discovery in the Family Court needs to be considered carefully, to avoid the dissipation of family wealth through legal posturing.  However, there needs to be sufficient information for an informed decision.  The relevant principles are set out by Kós J in Dixon v Kingsley [2015] NZHC 2044 as follows:

(a) A robust approach should be taken to discovery consistent with the purposes and principles of the Act: the need for just division, but also inexpensive and efficient access to justice.
(b) Such discovery must not be unduly onerous.
(c) Such discovery must be reasonably necessary at the time sought.
(d) The scope of discovery should therefore be tailored to the need of the Court to dispose, justly and efficiently, of relationship property issues under the Act.
(e) More substantial discovery may well be ordered by the Court where it has reason to believe that a party has concealed information or otherwise sought to mislead either the other party or the Court as to the scope of relationship property. But even here, the scope of discovery should be no more than is required for the Court to fairly and justly determine relationship property rights. It is just that in such a situation, more is likely to be required to meet that requirement.

This should be read in the context of the practical realities as succincly set out in Bloss v Van Der Goot [2019] NZHC 1360  at [9] as follows:

[9] It is important also to understand how relationship property litigation generally works. Under the Property (Relationships) Act, the court will order a division of property of the parties upon a triggering event. That triggering event may include separation, dissolution of marriage, bankruptcy and death. An inventory is taken of the parties’ assets. The property is then categorised as relationship property or separate property. Separate property is not divided between the parties (subject to exceptions such as where one party has made contributions to the separate property of another), and relationship property is generally divided equally between the parties. There are, of course, exceptions to these general statements. The important thing is that the assets are ascertained as at the date of the triggering event – be it separation, death, bankruptcy, dissolution of marriage and the like. While there may be narrative affidavits dealing with events over the course of the relationship, the important thing is that the inventory-taking looks to the assets when a division is to be carried out.

Comments are closed.

Categories

%d bloggers like this: