Duty to Disclose

In our previous article we provided an overview of the merger of the Family Court and Federal Circuit Court which occurred on 1 September 2021.  

This week we take an in-depth look at the new rules and requirements for disclosure in family law matters.  

What is disclosure?  

‘Disclosure’ is a term we use to describe documents that are relevant to your matter. Essentially, we use it to cover any document that you are required to provide during your matter.  

A party’s duty to provide disclosure derives from the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). The Rules state that all parties have a general duty to provide a:

“full and frank disclosure of all information relevant to the proceedings, in a timely manner” (Rule 6.01).

A party’s duty to provide disclosure starts before any Court proceedings are started and continues until proceedings have finalised. It applies to both property matters and parenting matters.  

Parties must disclose a document if the document has been in their possession or control and is relevant to an issue in the proceedings (Rule 6.03).

Disclosure in parenting matters

The new Rules are clear that the obligation to provide full and frank disclosure applies to parenting matters as well as property matters.  

For a parenting matter there are no specific documents that you must provide. Instead, you are required to provide documents that are relevant to an issue in dispute in your parenting matter.  

For example, if a matter involved a dispute over whether a child had medical needs, the duty to disclose would require the parties to provide copies of any medical reports, test results or any other document that is relevant to the child’s medical needs. 

There Rules and Central Practice Direction give some examples of documents that could be relevant to a parenting matter. These include: -  

• criminal records; 

• apprehended violence orders made for the protection of one party or a child;  

• apprehended violence orders where a party is the defendant;  

• medical reports about the child or a party;  

• school reports; and 

• drawings, photographs or letters.  

Disclosure in property matters 

The Rules around disclosure in property matters are extensive. The Rules require parties provide full and frank disclosure of their financial circumstances. This will include information about: -  

• any earnings they receive, regardless of whether that income is paid to them, an entity that they fully or partially control or to another person on their behalf; 

• any vested or contingent interest in property, including any interest that is held by an entity that they fully or partially control; 

• their financial resources; 

• in certain circumstances, details of any Trust that they control or are a beneficiary of; 

• details of any property they have disposed of in the 12 months leading up to the party's separation and details of any property they have disposed of since the parties separated. There is an exception if the disposal was made with the consent or knowledge of the other party, or it was made in the ordinary course of business;3 and 

• all liabilities and contingent liabilities.  

If the party is required to file a Financial Statement, they must also provide the other party with copies of: -  

• their last three Income Tax Returns;  

• their last three Notices of Assessment; 

• a completed superannuation information request form; and  

• if the party has an ABN, a copy of their last four lodged BAS statements.  

If either party has an interest in a self-managed superannuation fund, they are to provide a copy of the Deed for that fund and the last three financial statements.  

If a party has an interest in a partnership, trust or company (that is not a public company) they are to provide the three most recent financial statements and last four lodged BAS statements for that entity.  

Further documents are required if a party is making an application for spousal maintenance.  

Undertakings  

If your matter ends up before the Federal Circuit and Family Court of Australia, you will at some point during your matter need to file an Undertaking as to Disclosure.  

In that undertaking you are required to confirm: -

you have read parts 6.1 and 6.2 of the Rules;  

• you are aware of the duty you owe to the Court and the other party to give a full and frank disclosure of all information relevant to the proceedings in a timely manner;  

• you have to the best of your knowledge and ability complied with this duty and they will continue to comply with this duty; and  

• you acknowledge that a breach of an undertaking may be contempt of Court.  

It is important that you do not sign an undertaking if it is not correct. An undertaking is a promise to the Court, and it has the same effect as a Court order.  

The Rules are clear that anyone who makes or signs an undertaking that they know, or reasonably should have known, to be false or misleading commits an offence. The penalty for this is currently $11,100.  

What can you do with documents disclosed during proceedings?  

Any document disclosed for the purpose of your family law matter cannot be used for another purpose. The Rules specifically state that: -  

(1)  A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order: 

(a) must use the document for the purpose of the proceeding only; and 

(b) must not otherwise disclose the contents of the document, or give a copy of 

it, to any other person without the court’s permission. 

There are exceptions which allow solicitors to provide copies of documents to their clients, or a barrister in the matter, or clients to provide material to their solicitor and barrister.  

The Rules also clarifies that it does not “affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.”   

The best way to ensure you do not fall afoul of this section is to check with your solicitor before you disclose a document to any other person.  

Our obligations  

As a legal representative, we also have an obligation to ensure our clients comply with their duty to disclose.  

The pre-action procedures require us to advise a client of their duty to provide full and frank disclosure and the potential consequences of breaching that duty. The Rules also state: - 

If a client wishes not to disclose a fact or document that is relevant to the proceeding, a lawyer has an obligation to take the appropriate action; that is, to cease acting for the client. 

This means if a client ever tells us that they do not want to disclose information that is relevant to their matter, we cannot act for that client.  

Please note: the information in this article is general in nature and is not legal advice. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.