Full and Frank Disclosure in Family Law
… and what does it mean for my separation?
If you are going through the process of negotiating a property settlement with your ex, you’ve probably heard from your lawyers or from research that you have a duty of ‘full and frank disclosure.’
Although disclosure is an extremely complex area of the law, this essentially means that you have to be very honest about your assets, debts and financial circumstance. This is so that the Court can get an accurate picture of what effect dividing your property will have on you and your ex.
For example, disclosure means that you need to tell your ex (or their lawyer if they have one) whether:
- You have received or earned any money since separation;
- You have given away any money or assets;
- If you have or will get any windfall payouts; or
- If you will change or have changed jobs and will earn a higher salary
However, given the complexity of this rule, we strongly encourage you to seek legal advice from a solicitor to better understand:
- Your duties and obligations about disclosure, including full and frank disclosure
- The effect of the undertaking of disclosure
Full and frank disclosure in financial cases
In addition to general duties of disclosure requirements, there are specific rules about full and frank disclosure in financial cases. Disclosure must be of the party’s total direct and indirect financial circumstances.
It requires disclosing all sources of earnings, interest, income, property (vested or contingent interests) and other financial resources. This applies regardless of whether the resources are owned by the party, or go to another some other person or beneficiary (for example, the child or de facto partner) or are held in corporations, trusts, company or other such structures.
Also required to be disclosed is information about any property disposal (whether by sale, transfer, assignment or gift) that was made in the year immediately before the separation of the parties or since the final separation and that may affect, defeat or deplete a claim.
How do I disclose?
You must file a Financial Statement. If that does not fully meet your duty of disclosure, you also need to file an affidavit giving further particulars.
If your financial circumstances change after you file the Financial Statement, you must file an amended statement within 21 days of the change of circumstance.
Full and frank disclosure in parenting cases
At all stages of a parenting case, parties must make full and frank disclosure about all information relevant to the case. What information is relevant is case specific, but may include reports about a child or parent, school reports, letters and drawings by the child, photographs or diaries.
A party who has obtained an expert’s report for a parenting case must give a copy of the report to the other parties and the independent children’s lawyer (if appointed).
Disclosure of Documents
Undertakings about disclosure
In the Family Court Rule 13.15 requires all parties (except for an independent children’s lawyer) to file an undertaking stating that you:
- have read Parts 13.1 (disclosure between parties) and 13.2 (duty of disclosure – documents) of the Family Law Rules, and
- are aware of your duty to the Court and each other 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.
- undertake that, to the best of your knowledge and ability, you have complied with the duty of disclosure, and
- acknowledge that breach of the undertaking may be contempt of court.
You must not make a statement or sign an undertaking if you know, or should reasonably know that it is false or misleading.
This undertaking must be filed at least 28 days before the first day you are before a judge.
Penalties for non-disclosure or false disclosure
If you fail to disclose or file an undertaking or file a false undertaking, the Court may:
- refuse to allow you to use that information or document as evidence in your case
- stay or dismiss all or part of your case
- order costs against you
- fine you or imprison you on being found guilty of contempt of court not disclosing the document or breaching your undertaking
Important rules which apply in the family court:
- Rule 13.04, full and frank disclosure in the Family Court
- Rule 13.05(2), financial statements in the Family Court
For more information, contact us.