Duty of Disclosure the Family Court of Australia has stringent disclosure requirements for parties. These requirements arise in both financial and parenting matters.

Disclosure is quite a complicated area, however, it can be broken down into easier to understand segments.  The first segment is the duty of disclosure and what this is actually referring to. Next, we will consider the duty of full and frank disclosure. Third, we will contemplate how you can comply with your duty. Fourth, the written undertakings that must be given to a court will be considered. Finally, we will explore the penalties for failure to disclose information or filing false undertakings regarding the disclosure of information.

Duty of disclosure

The best way to explain the term, duty of disclosure is to use the ordinary meaning of each of the terms in question.  Duty refers to a responsibility or obligation to do something. Disclosure refers to the revealing of information. So, when combined, the ordinary meaning of duty of disclosure is having a responsibility or obligation to reveal information.

All parties in a family law case are required to comply with the duty of disclosure. Parties must provide disclosure to the other party(s) on any issue that is relevant to the case. The duty to disclose applies throughout the entire case, from any pre-application procedure, right through to the finalisation of the case. The type of information that must be disclosed can come in many forms, ranging from documents on paper to those stored online. It can also include information that the parties do not know about.

The particular rule regarding the duty of disclosure is contained in Rule 13.01 of the Family Law Rules 2004. Rule 13.01 outlines the general duty of disclosure to the court and to each other party. The duty is one of full and frank disclosure, which must be given in a timely manner.

Full and frank disclosure

The Family Law Rules 2004 includes rules on full and frank disclosure, particularly relating to financial cases. These are contained in Rule 12.02, 13.04 and the Pre-action procedures in Schedule 1.

Rule 13.04 requires parties involved in financial cases to provide full and frank disclosure of their financial circumstances. This includes information on their earnings, interests in property, interests in property owned by an entity which they own or control, any income earned by an entity which they are involved in, any other financial resources, any trust where they are trustee or beneficiary (or their child is a beneficiary) and any disposal of property which may affect the claim. The term entity refers to a corporation, trust, partnership, joint venture or any other commercial activity.

Rule 12.02 pertains to property cases and the exchange of documents before the first court date. This rule requires each party to exchange with the other party copies of the following documents at least 2 days prior to the first court date. These documents include:

• a copy of the party’s 3 most recent tax return and assessments;
• if relevant, superannuation information;
• for a corporation outlined in rule 13.04, a copy of financial statement for the last 3 financial years, a copy of the corporation’s annual return with listing of directors and shareholders and a copy of the company constitution;
• for a trust as outlined in rule 13.04 a copy of financial statement for the last 3 financial years and a copy of the trust deed;
• For a partnership as outlined in rule 13.04, a copy of financial statement for the last 3 financial years and a copy of the partnership agreement and
• A market appraisal for any valuation of any item of property that the party has an interest in.

The duty of full and frank disclosure also applies in parenting cases. The rule surrounding this duty is outlined in 13.01 of the Family Law Rules 2004, as outlined previously.

How to comply with your duty

Chapter 13 of the Family Law Rules 2004 provides guidance on how to comply with your duty of disclosure. It provides details on the different ways you may be asked to comply with your duty. This ranges from producing documents, to complying with orders for disclosure and answering specific questions.

Certain forms must be used for your disclosures. For example, in financial cases, a Financial Statement must be filed. If this Financial Statement does not conveniently make allowance for the relevant disclosure, then an affidavit providing further particulars is required. Another example occurs with applications for the maintenance of a child. If you are party to this type of application, then rule 4.15 sets out the particular documents and forms required.

As mentioned earlier, the duty of disclosure is ongoing and does not cease until the case has been finalised. Therefore, if new information comes about during the course of the case and this information is relevant, then it too, must be disclosed in the appropriate manner.

Making written undertakings

All parties involved in case before the Family Court of Australia, except for the Independent Children’s Lawyer must file a written undertaking stating that they have read part 13.1 and 13.2 of the Family Law Rules 2004 and are aware of their duty to the court and each other to give full and frank disclosure of all relevant information to the case. In the undertaking, the party must also undertake to the court, that to the best of their knowledge and ability, they have complied with the duty of full and frank disclosure and must acknowledge the fact that breaching the undertaking may result in contempt of court. This undertaking must be submitted at least 28 days before your first day before the Judge.

A written undertaking is a formal and serious document. If, for any reason, a party believes that an undertaking is false in anyway, they should not sign it. The penalties for breaching such as undertaking are serious and are explored below.

Penalties

Failure to provide full and frank disclosure and breaching undertakings are serious offences. They are punishable by a variety of penalties listed below:

• The court may refuse to allow you to use the evidence in a particular document in your case;
• The court may dismiss your case;
• The court may order costs against you;
• A fine; and/or
• Imprisonment for contempt of court.

A failure to comply with the requirement for disclosure and/or breaching the undertaking will also likely have serious consequences on the view the Judge takes of you and your case, which may then affect the result you achieve.

Further information

Contact Sarah Bevan Family Lawyers Sydney today we have offices in Parramatta, Surry Hills and Crows Nest. (02) 9633 1088

Our team is headed by an Accredited Specialist in Family Law, and so you can be certain we will provide you with the skill and expertise you require.

More information about the duty of disclosure in family law, you can read Chapter 13 of the Family Law Rules 2004.