Duty of disclosure
What is duty of disclosure?
Duty of disclosure requires all parties to provide the Court and each other party all information relevant to an issue in the case. This includes information and documents that the other parties may not know about. This duty starts with the pre-action procedure before the case starts and continues until the case is finalised.
As a party, you must continue to provide information and documents as circumstances change or more documents are created or come into your possession, power or control. The Court’s brochure Duty of disclosure in family law case’available from the Publications section of the website provides an overview of duty of disclosure obligations.
It includes information about:
- full and frank disclosure - and what that might mean in financial and parenting cases
- written undertakings that must be given to the Court
- documents to be disclosed
- penalties for failure to disclose or for filing false undertakings.
This is a complex area of law. The information here is an overview only of the requirements. You must carefully read Chapter 13 of the Family Law Rules to understand your full obligations.
Parties must make full and frank disclosure about their circumstances before the first court event. What is required varies depending on whether parenting issues or financial issues (or both) are in dispute.
Full and frank disclosure in financial cases
As well as the general duty of disclosure, there are specific rules about full and frank disclosure in financial cases (Rules 13.04 and 12.02).
A party must disclose their total direct and indirect financial circumstances including all sources of earnings, interest, income, property (vested or contingent interests) and other financial resources. This applies whether the property, financial resources and earnings are owned by or come to the party directly, or go to some other person or beneficiary (for example, the party’s child or de facto partner) or are held in corporations, trusts, or other such structures, and that may affect, defeat or deplete a claim.
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 must also be disclosed as well as liabilities (actual and contingent).
Rule 12.02 provides that in a property case each party must exchange with the other parties copies of the following documents at least two days before the case assessment conference:
- the party’s three most recent taxation returns and assessments
- any superannuation documents for each superannuation interest of the party, including:
- the completed Superannuation Information Form
- for a self-managed superannuation fund, the trust deed and the last three financial statements
- for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years
- for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 any Business Activity Statements for the 12 months ending immediately before the first court date
- for any corporation, its most recent annual return, listing directors and shareholders and the corporation’s memorandum and articles of association
- for any trust, the trust deed
- for any partnership, the partnership agreement,
- a market appraisal of any item of property in which a party has an interest.
Undertakings about disclosure
Rule 13.15 requires all parties (except for an independent children's lawyer) to file an undertaking. The Court’s brochure Duty of disclosure in family law cases available from the Publications section of the website provides an overview of your obligations.
Penalties
If you fail to disclose or file an undertaking or file a false undertaking, there is a range of penalties the court may impose. See the brochure Duty of disclosure in family law cases available from the Publications section of the website for more detail.
Other specific requirements for discussion about financial cases
It takes time to prepare for discussions about property and financial support (maintenance) matters. You can begin by collecting documents about all the property, assets and debts of you and your former spouse or de facto partner. It may include bringing together:
- a copy of your tax return for the last financial year
- a taxation assessment (from the Australian Tax Office) for the last financial year
- bank, building society or credit union records for the 12 months before the date of filing the application
- current pay slips
- if you have any superannuation, information MUST be obtained and provided in the form of the Superannuation Information Form, including information from the superannuation fund
- receipts or statements relating to hire purchase, personal loans, mortgage, lease, rent, etc
- copies (preferably copies with the original court seal) of any previous order for maintenance or property settlement
- any other document that may assist the Court in determining income, financial needs or resources.
You may need to have bank statements going back several years (to separation date and earlier) where:
- there has been a long gap between separation and the present court event
- there are issues of money being wasted in the relationship
- income has not been fully disclosed
- assets have been sold and the application of the funds is an issue.
You should consider Rules 12.02, 12.05 and 13.04.