Under what rule in family law can you request disclosure from a non-party?

A common question is: what if I need certain important information, but I need to get the info from someone that is not a party in the case? 

Rule 19(11) of the Family Law Rules states that if a document is in a non-party’s control, is not protected by privilege, and it would be unfair for the party to proceed without it then a Court may order the non-party to produce the document. In Matthys v Foody, it was held that the purpose of Rule 19 allowed a party to make a formal request for third party’s sought-after documents, reasonable requests should not be denied.

According to Family Law Rule 20(5), you can actually get information from a non-party. It states that a court is able to order that someone that is a non-party can be questioned by a party, or disclose information by affidavit or other method regarding any of the case’s issues, if the conditions below are met:

1. It would be unfair for the party that wishes for the questioning or disclosure from the non-party to go without it

2. The information cannot be easily found in any other way

3. The questioning or disclosure will not cause any unacceptable delay or undue expenses

Note that if you are requesting for disclosure from a non-party, the burden of proof is on you to show why the information is needed, and that it would be unfair for the case to go on without it. Also, the application of this rule is discretionary.

What about disclosure from a party who may be aligned with a party in the family litigation?

The court can order disclosure if a third party may be alignedIn Hagey-Holmes v Hagey, disclosure from family members was considered appropriate since spouses or family members can be used to shield income or assets. The requests were not anticipated to cause unacceptable delay or undue costs.