When parties separate and turn to the Family Law Courts to resolve their issues, both parties are under a duty to make “full and frank” disclosure. This duty of disclosure applies to both financial and parenting issues.
What is the Duty of Disclosure?
Separation can be complex, particularly in situations when the parties have accumulated numerous assets throughout the relationship, either individually or jointly, or alternatively, if there are minor children involved.
For the parties to make fully informed decisions, it is important that the parties are aware of all information and are provided with all documents from the other side that would be relevant to the family law proceedings.
The duty of disclosure is ongoing – that is, parties are required to provide disclosure documents at the commencement of proceedings and must continue to disclose until the finalisation of the matter, particularly if there has been any change in their circumstances.
What do I have to disclose?
Depending on what type of issues the parties are pursuing, the duty of disclosure may vary.
Financial issues
For property/financial matters, both parties are required to disclose any and all information directly or indirectly relating to their financial circumstances.
This includes disclosing all:
- Earnings;
- Interest;
- Income;
- Property (vested or contingent interests); and
- Any disposal of property that was made in the year immediately before separation or since the final separation must also be disclosed (by way of sale, transfer, assignment or gift)
- Financial resources – e.g. long service leave, pension entitlements, tax losses, anticipated inheritance, trusts, overseas superannuation, etc
Parenting issues
For parenting issues, the duty of disclosure requires each party to disclose all information that may affect the care of the children.
This includes disclosing all:
- Schooling details and reports;
- Medical reports and/or medical information;
- Information relating to the parent’s work commitments;
- Information relating to the parent’s capacity to care for the child (e.g. drug and alcohol abuse, family violence, criminal history, etc)
What are the penalties for not disclosing?
There may be circumstances where a party is reluctant or refuses to disclose specific information as they believe that it is ‘irrelevant’ or will provide the other party with ‘leverage’.
However, it is important that each party fulfil their duty to disclose.
Failure to disclose, or disclosing deceptive information, may result in the Court making Orders against the breaching party.
Penalties that the Court may issue include:
- Ordering one or more of the parties to make specific disclosure;
- Staying or dismissing proceedings for failure to comply with orders to disclose;
- Making cost orders against the breaching party; and/or
- Issuing fines or imprisonment for contempt of court for non-disclosure
