Duty of Disclosure

What is the duty of disclosure and what happens if a party to a family law proceeding fails to provide full and frank disclosure?

The obligation to make full and frank disclosure in family law proceedings is fundamental to the exercise of jurisdiction in both parenting and financial matters. Pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (“the Rules”) as well as decisions of the Court, each party to a family law dispute has a duty of disclosure, meaning that each party will have to provide the other party with all the information relevant to an issue in the case. The duty commences from the pre-action procedures stage, before the case starts and continues until the matter is finalised.

The duty extends to both property and parenting matters but the material required to be disclosed will depend on the nature of the case.

The potentially relevant documents to a parenting matter may include, among other things:

• criminal records of a party;
• documents filed in intervention order proceedings concerning a party;
• medical reports about a child or party; and
• school reports.

The potentially relevant documents to a property matter may include, among other things:

• a party’s earnings;
• a party’s income;
• a party’s interest in property;
• a party’s interest in a business or trust; and
• a party’s financial resources.

Prior to the first court date, rule 6.02 requires that all parties file an undertaking stating that they are aware of their duty to the Court and each party (including any independent children’s lawyer), to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner. Each party must undertake that, to the best of their knowledge and ability, they have complied with the duty of disclosure, and acknowledge that breach of the undertaking may be contempt of court.

The deliberate failure of one party to meet their disclosure obligation may result in the Court making adverse findings against the non-disclosing party if there is material upon which some inference can be based (see Stein and Stein (1986) FLC 91-779).

There are now hash penalties for parties who fail to disclose information relevant to an issue in the case, including costs orders made against them, a fine or even a prison sentence.

More information about a party’s duty of disclosure can be found on the FCFCOA website: Duty of Disclosure

Article written by Kirstin Attard
Photo by Kelli McClintock on Unsplash