Duty of Disclosure – Parenting & Financial Matters

What is the duty of disclosure?

In financial and parenting matters, each party has a duty of disclosure which requires all parties to give full and frank disclosure to the court and each party of all information and documents relevant to the case. This includes information and documents that the other party does not know about.

This duty is embedded in the Family Law Rules which govern family law proceedings.

When does the duty of disclosure arise?

The duty first arises in the pre-action stage of proceedings (i.e. before the case starts) and continues until final orders are made and the case has finalised.

If you are a party to family law proceedings or in a family law dispute where court proceedings have not yet been commenced, the duty of disclosure applies to you.

The duty of disclosure applies to both financial and parenting matters.

Duty of disclosure in Financial Cases

The duty of disclosure in financial matters requires you to provide all information regarding your income, income earning capacity, assets (e.g. property, shares, cars, chattels), liabilities, superannuation, and your financial circumstances, including as follows:

1. All sources of your earnings, including income that is paid or assigned to another party, person or legal entity (e.g. a corporation, trust, partnership, joint venture, business or other commercial activity);
2. any vested or contingent interest in property;
3. Any vested or contingent interest in property owned by a legal entity that is fully or partially controlled by you;
4. Any income earned by a legal entity fully/partially controlled by you, including income paid to any other person/entity;
5. Any other financial resources;
6. Any trust over which you are a beneficiary/trustee/appointor or otherwise have direct or indirect power or control;
7. Any disposal of property in the twelve months prior to separation or since separation.
8. All liabilities and contingent liabilities.

What exact documents do I need to provide to discharge my duty of disclosure in a Financial Case?

A summary of the usual disclosure documents that you will likely be requested to provide to the other party’s lawyer, in satisfaction of your duty of disclosure, as set out in Rule 6.06(3) of the Family Law Rules, is as follows:

1. Three most recent ATO tax returns and notices of assessment;
2. Two recent payslips;
3. statements for all bank accounts in your name or joint names with another party for the last twelve (12) months;
4. A copy of your current superannuation statement;
5. If you are a member of a self-managed superannuation fund, a copy of the trust deed and financial statements for the last (3) financial years;
6. Mortgage statements for all property owned by you/on your behalf for the last twelve (12) months;
7. Credit card statements for the last twelve (12) months;
8. Personal loan statements for all loans in your name, for the last twelve (12) months;
9. A copy of any loan agreements regarding loans between family/friends;
10. At least one real estate appraisal for all properties in your name or which you have an interest in;
11. Redbook or other valuation for all motor  vehicles in your name;
12. Valuation/appraisal for all other assets of significance in your name (e.g. boat/tractor/jet ski);
13. Evidence of the disposal of any property in the twelve months prior to separation or since separation;
14. If you have an interest in a trust:
    1. A copy of the trust deed;
    2. financial statements for the 3 most recent financial years; including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;
    3. any business activity statements for the past 12 months.
15. If you have an interest in a private company
    1. financial statements for the three (3) most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;
    2. a copy of the corporation’s most recent annual return that lists the directors and shareholders;
    3. if relevant, a copy of the corporation’s constitution;
    4. any business activity statements for the past 12 months.
16. If you are involved in a partnership:
    1. The partnership agreement;
    2. financial statements for the three (3) most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;
    3. any business activity statements for the past 12 months.

The above is not an exhaustive list and you may have a duty to provide further disclosure documents depending on your particular financial circumstances and the assets, liabilities and superannuation that you own or have control over.

When you file an application to the court you must file a financial statement which addresses your assets, liabilities, superannuation and your financial circumstances. If the financial statement does not fully meet your duty of disclosure, an affidavit must be filed giving further particulars.

If your financial circumstances change, you must file an Amended Financial Statement within 21 days after the change of circumstances.

Duty of disclosure in Parenting Cases

In a parenting case, you are required to make full and frank disclosure of all information relevant to the parenting case.

Relevant information and documents will be specific to each case.

Some examples of documents that may be relevant to your case are:

1. The child’s school reports;
2. relevant assessments about the child and/or parents issued by doctors, pediatricians, psychiatrists, psychologists, social workers or other health professionals;
3. letters (including emails) and drawings made by a child, parent (or a person of whom the child may be in contact with), photographs, diaries, text messages;
4. information about the amount of time the parent spends at work;
5. information about the supervision of the child when they are not with you;
6. information about any issues that affect each parent’s ability to care for the child, such as substance abuse, mental illness, or chronic medical conditions;
7. official documents about any family violence, including protection orders, police reports or relevant statutory body reports;
8. official documents about any previous involvement by a child safety authority involving a party or a child;
9. official documents about any criminal charges or criminal history (even if you believe it is not relevant to your parenting matter); and
10. any information a party may be aware of regarding the above matters (even if there is no documentation to provide).

What if I fail to comply with my duty of disclosure?

You are required to sign an undertaking as to disclosure prior to the first court date, wherein you undertake to the court that you understand your duty to give full and frank disclosure of all information and documents relevant to the issues in your case in a timely manner, that you have complied with your duty of disclosure to date, and that you will continue to comply with your duty of disclosure until the conclusion of your case.

Signing an undertaking is an important and serious step in court proceedings.  An undertaking is a promise to the Court which is as binding as a Court order. A breach of an undertaking is treated the same way as a breach of an order made by the court.

You must not make a statement or sign an undertaking if you know, or should reasonably know, that it is false or misleading. If you fail to disclose or file an undertaking or file a false undertaking, the Court may:

• refuse to allow you to use that information or document as evidence in your case;
• stay or dismiss all or part of your case;
• make adverse findings against you for failing to disclose;
• order costs against you;
• fine you or imprison you on being found guilty of contempt of court for not or disclosing the document or for breaching your undertaking.

If the Court makes a costs order against you, this means you will be required to pay the other party’s legal costs of the family law case.

If final court orders have been made and you have failed to provide full and frank disclosure to the other party prior to these orders being made, you may be at risk of the other party applying to have those orders varied or set aside and new orders made having regard to the information that was not disclosed by you. To learn more about the consequences of failure to disclose click the link and read our article how failure to disclose can derail your consent order. 

Want more information about your duty to disclose?

Check out the Federal Circuit & Family Court fact sheet entitled Duty of Disclosure. 

Seek legal advice promptly

If you have separated you should seek legal advice as soon as possible to protect your rights and entitlements.

Contact our experienced family law team to take advantage of our one hour, reduced rate initial consultation to have a discussion in relation to your individual circumstances.