In family law proceedings, the duty of disclosure is the obligation that each party be transparent about their circumstances and disclose to the other party and the court all relevant information and documents related to the issues in dispute.
This duty applies to both parenting and financial matters and is an ongoing obligation that starts with the pre-action procedures and continues until the matter is finalised.
This article is an overview of the duty of disclosure, applicable documents, compliance with the duty, and the consequences of non-disclosure. It is discussed in the context of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), recently introduced under the new Federal Circuit and Family Court of Australia.
To find out more, read our article Duty Of Disclosure – A Family Law Perspective (pdf, 248 kb). A brief summary of the article is as follows:
Definition of Duty of Disclosure
The duty of disclosure requires parties in family law matters to provide “full and frank” disclosure of all relevant information, including finances and assets, in a timely manner. This applies continuously from pre-action stages until the case is resolved.
Rule 6.01 of the Rules outlines this obligation, emphasising that the duty applies to both parenting and property disputes.
Documents Required for Disclosure
Disclosure encompasses various documents, such as real estate ownership details, tax returns, bank statements, income records, and superannuation statements.
The rules detail specific documents that must be disclosed for both financial and property matters, including financial statements for businesses and motor vehicle registration certificates.
Orders for Disclosure
If a party fails to comply, the court can issue an order for further disclosure (Rule 6.18). This may include requests for additional documentation, inspection of documents, or general compliance orders. The court may even relieve a party of the disclosure duty if justified in the interest of justice.
Compliance with Disclosure
Parties must continue to comply with the duty throughout negotiations, mediations, or if consent orders are being sought. In financial cases proceeding to court, a sworn financial statement must be provided, detailing assets, income, and liabilities.
Undertakings
Rule 6.02 mandates all parties to file an undertaking of disclosure, a formal written promise to the court to comply with the disclosure obligation. Breaches can be treated as contempt of court.
Consequences of Non-Disclosure
Rule 6.17 outlines the penalties for failing to comply, such as barring evidence, contempt charges, cost penalties, or dismissal of a case. If non-disclosure is discovered after property settlement orders are made, an application can be made under Section 79A of the Family Law Act to set aside those orders.
Disclosure Requirements in Mediation
The duty of disclosure also applies in mediation, where full and frank disclosure of relevant documents is expected to facilitate fair settlements and avoid unnecessary litigation.
Summary
The duty of disclosure is central to ensuring fair outcomes in family law proceedings.
Understanding and adhering to this duty is essential for all parties involved. Failure to disclose can have significant legal ramifications, even after a case is finalised.