A topic of confusion for many who find themselves involved in Family Law matters is the Duty of Disclosure. Questions we are often asked as Family Lawyers include: What is the Duty of Disclosure? What disclosure must I provide? What happens if my ex or I fail to exchange disclosure?
The Duty of Disclosure applies to parties to Family Law disputes, negotiations and/or proceedings and it means that they are required to provide to each other all information and documents in their possession or control that are relevant to their case in a timely manner. This duty is an ongoing obligation that both parties must meet. It begins immediately at the start of a matter and continues until the matter is resolved on a final basis, regardless of whether the matter is in court. It is important to note that compliance with the Duty of Disclosure may mean disclosing information and documents that are relevant even though they may not assist your case.
The disclosure you must share will depend on whether you are a party to:
- A financial or property settlement matter; or
- A parenting matter.
Financial/Property Settlement Matters
Under the Family Law Act 1975 (Cth) (ss 71B and 90RI) and the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) (r 6.06), parties to a marriage or de facto relationship must make full and frank disclosure of their respective financial circumstances (direct and indirect) and property of the relationship. This includes providing information and documents to confirm their income, assets (including superannuation), liabilities, financial resources and any disposal of property (whether by sale, transfer, assignment or gift) in the 12 months immediately before the separation of the parties and since.
Parties may also be required to provide further financial disclosure where there is a disagreement between them as to the contributions they assert that they have made to the relationship (financial, non-financial, parenting, homemaker etc.), current and future circumstances (health, income earning disparity, pensions etc.) and allegations of wastage or disposal of property.
Exchange of financial disclosure by parties assists them to progress their matter, as it enables them to receive specific advice from their solicitor. In particular, with respect to their rights and entitlements to property settlement and likely outcomes for their division of property. This then means the parties can negotiate settlement offers in an attempt to resolve matters. If negotiations prove unsuccessful and litigation becomes necessary, the parties will have already exchanged disclosure sufficient to seek appropriate interim and final property orders when issuing proceedings in the Federal Circuit and Family Court of Australia.
Parenting Matters
Each parenting matter is different and therefore the information and documents parties are required to exchange will depend largely on the specific issues relevant to the case and as raised by each of the parties.
Generally speaking, parties to parenting matters are required to make full and frank disclosure of information and documents relevant to the best interests of the child/ren and assessment of same.
Under the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) (r 6.05), this may include the criminal records of a party, documents filed in Intervention Order proceedings concerning a party, medical reports concerning the child/ren or party and school reports.
Often in parenting negotiations and proceedings, the parties will disclose information and documents relevant to the welfare, safety and needs of the child/ren, including (but not limited to) letters or reports from the children’s treating medical professionals and specialists, correspondence from the children’s school, photos, copies of police reports and statements, Intervention Orders and reports made to the Department of Child Protection.
Provision of disclosure by parties in parenting matters assists them to negotiate safe and appropriate parenting arrangements for their child/ren. In the event negotiations prove unsuccessful or it is not safe to facilitate time spending, disclosure can help support the interim and final orders sought by parties in their subsequent litigation.
Non-compliance with Duty of Disclosure
Non-compliance with disclosure obligations can result in serious consequences for parties to Family Law matters.
A party who fails to provide their financial disclosure, risks the following consequences:
- Prejudice to their case;
- Incurring unnecessarily high legal fees/costs;
- Final Court Orders or Agreements being set aside or overturned;
- The Federal Circuit and Family Court of Australia Division 1 or 2 may (under the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) (r 6.17)):
- Refuse to allow parties to use undisclosed information and documents as evidence at a hearing or Trial without the other party’s consent or the court’s permission;
- Find them guilty of Contempt of Court and impose further penalties (fines, terms of imprisonment and cost orders);
- Order that they pay the other party’s legal costs;
- Stay or dismiss all or part of their case.
We therefore recommend that anyone who has questions or concerns in relation to their Duty of Disclosure obligations should obtain legal advice as a matter of priority.
For further support or legal advice, contact the Family Law Team at Mellor Olsson.