The duty of disclosure is the requirement that a person be transparent about their circumstances and disclose all relevant information and documents related to issues in dispute to the other party and the court in the course of family law proceedings. This duty applies to both parenting and financial matters. It includes information that is recorded on paper or in electronic documents and includes information and documents the other party may not know about. The duty starts with the pre-action procedures before the case commences and continued until the matter is finalised. The obligation of disclosure is a continuing one. Therefore, you must continue to provide information and documents as your circumstances change or as more information becomes available or comes into your possession, power or control.
In financial matters, disclosure relates to a party’s direct and indirect financial circumstances. This means they must continue to provide tax returns as they are completed, or provide new financial information if their circumstances change.
The most common form of disclosure in family law matters is financial disclosure and disclosure of financial circumstances. This is also referred to as ‘full and frank financial disclosure’. As part of the court’s pre-action procedures, all parties to a family law case must provide to each other all relevant information to an issue in the case.
Disclosure is covered by Chapter 6 of the Federal Circuit and Family Court of Australia Rules 2001 (‘the Family Law Rules’). The general duty of disclosure is set out at Rule 6.01 of the Family Law Rules.
Full and frank disclosure is set out at Rule 6.06 of the Family Law Rules relating to the obligations of parties in financial cases to disclose their financial circumstances.
Rule 6.02 of the Family Law Rules requires all parties to proceedings (except for Independent Children’s Lawyers) to file an undertaking of disclosure with the court. This is a formal binding promise to the court stating that they understand their duty to the court and to the other party to give full and frank disclosure (and the requirements of the Court Rules as they relate to these matters). It also requires parties to undertake that they have complied and will continue to comply with their duty of disclosure and acknowledge that breaching the undertaking may constitute contempt of court.
A Financial Statement is a court form document that is required to be filed by a party when commencing a financial case or when filing a response to a financial case. An Affidavit can also be filed with the Financial Statement if completing only the Financial Statement will not fully discharge the duty to make full and frank financial disclosure. Should a party’s financial circumstances change significantly from what is set out in the Financial Statement (or the Affidavit filed with it), the party must within 21 days of the change of circumstances file a new Financial Statement, or a new Affidavit, if the changes can be set out clearly in 300 words or less (see Rule 6.06 of the Family Law Rules).
Pre-action procedures require disclosure to be provided and complied with, as far as practicable, prior to the commencement of court proceedings in order to narrow the issues in dispute and attempt to reach a resolution by agreement out of court. Rule 6.01 of the Family Law Rules requires parties to exchange financial disclosure documents prior to the first court date in a property case.
The documents required are set out in the rule and include tax returns from the last 3 years, superannuation information form for each superannuation entitlement or copy of a trust deed and most recent 3 financial statements for a self-managed superannuation fund. Further, documents relating to corporation interests, interests in a trust or interest in a partnership if relevant.
As a property case progresses through the court, there are further provisions relating to information and disclosure, in addition to the continuing obligation of full and frank financial disclosure. For example, the court expects that that parties have exchanged sufficient disclosure and obtained any required valuations prior to a Dispute Resolution event.
The provision of such information and documents will assist parties in having sufficient information about matters to be able to reach an agreement with the assistance of internal resources of the court, such as a Registrar at a Conciliation Conference, or a mediator at a private mediation, noting the requirement of parties to make a genuine effort to reach agreement on matters in issue between them at a Conciliation Conference. Where dispute resolution does not proceed as a result of a party’s non-compliance with the Family Law Rules (particularly as they relate to obligations to provide full and frank disclosure), costs consequences can follow.
If a party is involved in proceedings and fails to comply with the duty to provide full and frank disclosure, the court may:
If parties reach an agreement prior to the commencement of court proceedings, they can formalise the agreement into an Application for Consent Orders and seek that these orders be made by the court. The same obligation of full and frank financial disclosure applies in reaching agreement and formalising it in this way. The Statement of Truth attached to an Application for Consent Orders requires each party to confirm to the court that “I have no interest in property, superannuation, or a financial resource which is not described” in the Application, along with confirming that “the matters stated in this application that are within my personal knowledge are true and all other facts are true to the best of my knowledge, information and belief and the order sought are supported by evidence.”
A failure to fully disclose financial circumstances in a property matter may lead to an Application by the other party to set aside orders at a future point on the basis of non-disclosure. The main goal of property settlement orders made following the breakdown of a relationship is to provide a clean financial break and be a once and for all adjustment of property.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Natasha Heathcote - Practice Director – Sydney
Natasha Heathcote completed her Bachelor of Business (majoring in finance), and Bachelor of Laws at the University of Technology Sydney. She has long held a strong passion for family law and believes that the law can be used to achieve positive resolutions for her clients. Showing compassion for her clients, she builds strong rapport and trust to help understand their.
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