‘Disclosure’ refers to the process where parties provide each other with copies of all the relevant documents in their possession or control. Each party in a family law dispute has a continuing duty to ensure full and frank disclosure until proceedings are finalised. The existence of this duty means that you must disclose information that is relevant, even if the other parties do not know it exists. The ongoing nature of the duty means that you are also required to provide updated information where circumstances change.
The duty to disclose in family law applies to both parenting matters and financial disputes. The types of information that may be disclosed varies depending on the matter type. However, generally disclosure can include paper documents as well as documents stored by some other means (i.e. on a computer or storage device).
In parenting cases, the information to be disclosed may often depend on the specific issue in dispute. Relevant information in these cases will often include information which provides evidence of the parenting capacity of each party. For example, the relevant documents may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs or even diaries. Additionally, where expert reports are obtained in relation to a parenting case, you may also be required to give a copy to the other party and the independent children’s lawyer (if one has been appointed).
In property and financial matters, the duty may require disclosure of any information as to earnings, interest, property or other financial resources which you as a party have access to either directly or indirectly. The specific documents required may include:
- copies of Pay slips, Group Certificates and/or Centrelink statements;
- copies of tax returns, estimates or assessments;
- details of assets that you own or are in your possession, including valuations or appraisals of these assets;
- copies of statements from any of your bank or building society;
- copies of statements from any credit card/s and any loans;
- superannuation statements; and
- information about any trust where you act as an appointor, trustee, director or shareholder.
Disclose of information regarding the disposal of assets may also be required, especially where the disposal occurred during the year prior to separation or since separation. Disposal transactions not only include transaction were assets are sold, but also those where assets transferred, assigned or gifted.
Failure to provide full and frank disclosure or providing false disclosure may incur severe penalties. The court may in such a situation:
- refuse to give you permission to use information or documents in your case;
- stay or dismiss all or part of your case;
- order costs against you; and
- fine or imprison you on being found guilty of contempt of court for not disclosing documents.
Ultimately, the duty to disclose is not designed to place an unnecessary burden on either party. Rather, it aims to help parties focus on the genuine issues of their matter, reduce cost and encourage settlement. Whilst the circumstances are limited, there are situations where not all information requested needs to be provided. In some cases, documents may be exempt from disclosure on the basis of privilege or relevance to the dispute.
Do you need legal advice concerning your disclosure obligations to the family court? Our lawyers can help you understand your rights and responsibilities and how the law applies to your case. Contact our Office for an appointment today.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.