The Duty of Disclosure in Family Law

Many issues – typically those that deal with financial or parenting matters – arise in the family context that parties can’t resolve without going to court. Family law cases are often complicated where the facts from both parties significantly conflict. However, it is important to know that if you are involved in a family law matter, there is a duty of disclosure that the parties need to maintain. This duty of disclosure is true even for cases where both sides consent, e.g. parenting consent orders or financial agreements. This article will run through an overview of the Family Law Rules 2004 (Cth) to provide you with a summary of the duty of disclosure.

What Does the Duty of Disclosure in Family Law Entail?

The duty of disclosure requires that the parties to a matter disclose all information that is relevant to the issue. This requirement means that disclosure needs to be made to the other party as well as to the court.

It is not relevant how the information is stored. The party must provide the information regardless of whether it exists in an electronic format or they store it electronically.

The duty of disclosure also includes information that is not known by the other party in the matter. This aspect allows for the efficient operation of the court as it ensures that the parties make a fully informed decision using all relevant information.

The duty of disclosure does not only apply at the time of a court hearing or on the date of an application. It also applies where the circumstances may have changed for one of the parties. For example, if the court has made spousal maintenance orders and the receiving party were to begin receiving income, the details of the income should be disclosed to the court.

Financial Matters

For financial matters, the standard of the duty of disclosure of information extends to direct and indirect financial circumstances. This rule means that the parties must disclose not only property, earnings, assets, or income owned, but also the financial resources that other people own that may nevertheless bring benefits to you. This disclosure is very common, for example, if there is a family trust of which you are a beneficiary, but not the trustee.

Further, the parties will also need to disclose any details of financial gifts, including gifts of real property.

Parenting Matters

The duty of disclosure also exists with relation to parenting matters. The type of information that the parties will need to provide for parenting matters will depend on the type of issues that the court hears.

For example, details may include:

• The amount of time a child spends in a parent’s care;
• Details as to schooling; and
• Details regarding medical information.

Like financial matters, the parties need to disclose these details at all stages of a matter and also if any circumstances change.

Request For Further Information

If a party does not comply with the duty of disclosure, it is possible for the court to make an order to require further information from them. This order comes in multiple forms such as a requirement to produce documents, to inspect documents or general orders for disclosure.

Undertakings

The court will require an undertaking from all parties. The undertaking is a promise that states that you have disclosed all information to your knowledge. You must also acknowledge that a breach of the undertaking you have provided may be considered a contempt of court.

Some penalties may apply for a failure to disclose and for the filing of a false undertaking. These penalties can affect your case or may require you to pay a fine for contempt of court.

The duty of disclosure is integral to the functioning of the courts so you should ensure that you understand your responsibilities surrounding disclosure.