What is the duty of disclosure?
Whether you are going through a parenting dispute or negotiating a property settlement, you will be required, at some point, to disclose to the other party (likely your ex-partner) documents that are relevant to the issue(s) in dispute; regardless of their effect on your case.
This can feel like an invasion into your privacy, so why do you have to do it?
The Family Law Act 1975 and the Federal Circuit and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 impose a duty on each party which requires you to give each other and to the Court full and frank disclosure of all relevant information to the dispute.
The duty of disclosure exists to ensure honesty and transparency between the parties to the dispute. It creates an even playing field, so to speak, where both parties have access to the same information/documents, that assist them in negotiating a settlement or arguing their case in Court.
What does providing disclosure look like?
At a minimum you need to provide the other party and the Court with full and frank disclose of:
In Parenting Matters, including but not limited to:
- Criminal records
- Documents filed in family violence proceedings
- Medical reports about a child or party
- School reports
In Financial Matters, including but not limited to:
- Bank Statements
- Employment contract and payslips
- Any interest in property and any valuations/appraisals
- Redbook vehicle valuations
- Superannuation
- Individual Tax Returns and Notice of Assessments
- Documents regarding any business partnership, company or trust in which you have an interest
- Any liabilities
- Any property disposed of
- Any financial resources
How long does the duty for disclosure last for?
The duty of disclosure applies from the start of the proceedings (or preparing for proceedings) until the proceedings are finalised. This means, that if you obtain relevant information/documents during the proceedings (e.g. you receive an inheritance), this must be disclosed to the other party.
What if I don’t provide disclosure?
The Court treats non-compliance with your duty of disclosure seriously. The Court may:
- Prevent you from using that information or document as evidence
- Stay or dismiss all or part of your case
- Order costs against you
- Fine or imprison you on being found guilty of contempt of Court
Prior to the first Court event, you are required to file an “Undertaking as to Disclosure” which is a promise to the Court that you provided full and frank disclosure to the other party and the Court. If you breach the undertaking (a promise), the Court treats this as seriously as breaching a Court Order and you may be found in contempt.
Inevitably, there will be times where the disclosure you are requested to provide is not relevant or is not in your possession or control. You should seek legal advice with how to deal with such a request to ensure you are not providing disclosure you are not required to.
Key Takeaway: The duty of providing disclosure is one of “show and tell”, not “hide and seek”.
Our team of lawyers at FGD are here to help you navigate your duty of disclosure. Please reach out to us at:
Sydney
Phone
Melbourne
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Canberra
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Coffs Harbour
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Article By: Todd Stevens
Family Lawyer Melbourne
Originally from Christchurch, New Zealand, Todd graduated from the University of Canterbury and went on to be Admitted as a Barrister and Solicitor of the High Court of New Zealand. Since admission, Todd has worked primarily in family law, as an employed barrister, where he developed his passion and skills within this area. In September 2023, Todd relocated to Melbourne to further his experience in parenting, family violence and property matters and found his place within the FGD team.