What is the Duty of Disclosure?

Disclosure is defined (by Google) as “the action of making new or secret information known”. 

To settle a family law dispute, or a family Court matter, each party must “make known” their financial (and other) “secret information” and produce documents regarding their financial (and other) affairs. Without such disclose any resolution may be compromised.

If you visit the website of the Federal Circuit and Family Court of Australia (FCFCA), it makes it very clear that all parties to a family law matter need to make full disclosure regarding financial (and in some cases Parenting matters) matters.

As stated on the FCFCA website” …a party’s Duty of Disclosure means that all parties to a family law dispute need to provide to the other party all information relevant to an issue in the case.”

Further, it states “this includes information recorded in a paper document or stored by some other means, such as a computer storage device, and also includes documents that the other parties may not know about”.

The duty to disclose “commences before a case is filed in the FCFCA (i.e., when the parties are trying to negotiate a property settlement) and continues during the case, and until the case is finalised”.

What documents are typically required to be disclosed in financial disputes?

The documents that are usually required to be disclosed between the parties in a family law property dispute include, but are not limited to, the following:

  1. Your last three Tax Returns and Notices of Assessment.
  2. Your up-to-date Superannuation statement/s.
  3. A valuation for any asset in dispute.
  4. Your employment contract, including any details of any bonuses paid pursuant to that employment contract.
  5. Details of any debts incurred during the relationship.
  6. Details of any inheritance received during or after the relationship.
  7. Business financials, including company Tax Returns.
  8. Your bank statements for the last three years.
  9. Details of any shares.
  10. Any other financial document that will allow you and/or your solicitor to accurately gauge the financial circumstances of the other party.

Disclosure in parenting disputes

While the duty of disclosure is usually more relevant in property matters, the same obligation applies in parenting cases.

For example, in parenting disputes you are required to disclose:

  • The Criminal records of a party.
  • Documents filed in Intervention Order proceedings concerning a party.
  • Medical reports about a child or party; and
  • School reports.

Disclosure Rules (Chapter 6 of the Federal Circuit and Family Court Rules 2021)

Pursuant to the FCFCA Rules:

  1. “…each party to a proceeding has a duty to the Court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner”.
  2. “…The obligation applies to both parties in the family law dispute”.

What happens if a party does not provide disclosure?

If Party A fails to make disclosure before Court proceedings have commenced, then Party B is free to make application to the Court without having to attend to the pre-action procedures (usual obligations prior to entering the Court process).

If Court proceedings have been commenced and Party A refuses to disclose relevant financial information, then that party may be:

  • Guilty of contempt for not disclosing the document (in certain cases a contempt charge carries a jail term); and
  • May be ordered to pay the other party’s costs (i.e., Party B’s costs).
  • Further, the Court can delay the proceedings or dismiss all or part of a party’s case if they fail to disclose the required information.

As once declared by Federal Magistrate Walters (as he was then) each party to a family law dispute must “give and give till it hurts” with respect to the provision of financial (and other) documents.

As referred to above, the obligation to provide documents arises before proceedings are commenced, during Court proceedings, and up to and including the finalisation of the Court proceedings.

The duty to disclose relevant financial and other documents is therefore ongoing, through the negotiation and or Court process.

Undertakings as to Disclosure

The FCCFC now requires parties involved in family law Court proceedings to sign and file an “Undertaking as to Disclosure”.  This is effectively a written promise by the parties to the Court, that they:

  1. have complied with their duty to disclose information/documents, and
  2. will continue to comply with their duty of disclosure until the finalisation of the matter.

If a party were to breach the Undertaking, this may be a contempt of Court punishable by a fine or imprisonment.

If this has raised questions for you, the Family Law Team at Tonkin Legal Group are here to help you with sound advice about these issues. You can contact us today on (03) 9435 9044.