The duty of disclosure in family law is one that is a continuous obligation on both parties throughout the course of proceedings/negotiations.
The duty of disclosure is outlined in Chapter 13 of the Family Law Rules 2004 (Cth). In particular, rule 13.01 provides:
- Subject to subrule (3), each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
Note: Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party’s duty of disclosure, including:
- disclosure of financial circumstances (see Division 13.1.2);
- disclosure and production of documents (see Division 13.2.1); and
- disclosure by answering specific questions in certain circumstances (see Part 13.3).
- The duty of disclosure starts with the pre-action procedure for a case and continues until the case is finalised.
Note: The duty of disclosure applies to a case guardian for a child and a person with a disability (see subrule 6.13(2)).
- This rule does not apply to a respondent in an application alleging contravention or contempt.
Disclosure must be ‘full and frank’
It is important when you go to see a solicitor that you are able to provide them with an understanding of your financial position in the following circumstances:
- When the relationship commenced;
- During the relationship;
- At separation; and
- Your current financial position.
Accordingly, rule 13.04 of the Family Law Rules 2004 (Cth) states that a parties financial disclosure must be ‘full and frank’. This means that you must disclose your total direct and indirect financial circumstances.
What must I disclose?
If there are no children of the relationship, or the children over the age of 18, then your duty of disclosure may be limited to financial documents only. It is important that you provide all financial documents that identify your assets, liabilities, and superannuation. This can include the following documents:
If the proceedings relate to children, then additional items of disclosure may need to be provided, including:
- Expert psychological reports in relation to the children;
- Criminal history;
- School reports; and
- Letters and drawings by the child.
It is important that all of these documents are provided to the other party prior to commencing court proceedings.
Going to Court
If you believe that you have made full and frank disclosure and have fulfilled your obligation of disclosure, you may now be in a position to commence court proceedings. Should you wish to go to court, the following documents will be filed in relation to your disclosure:
- Financial Statement – providing an outline of your weekly income and expenditure, assets, liabilities, superannuation, and you total net worth.
- Undertaking as to disclosure – if your matter goes to the Family Court of Australia, then you may need to file an ‘undertaking as to disclosure’. This document is signed by you affirming that you understand your obligations of disclosure and you undertake that, to the best of your knowledge and ability, you have complied with your disclosure obligations.
NOTE: penalties do apply if you knowingly provide a false ‘undertaking as to disclosure’.
How can we help
At JB Solicitors, we make sure that you fully understand your disclosure obligations. The collation of disclosure documents is a crucial step when attempting to resolve a dispute, and in the case of property settlements, allows us to determine the net asset pool so we can achieve a just and equitable property division for you.