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  • Writer's pictureJarrod Carter

Duty of Disclosure in the Family Court

The duty of disclosure is a legal requirement that applies to the parties involved in family law proceedings in Australia. It requires each party to a case to exchange all relevant information and documents related to their financial circumstances and the care and welfare of any children involved in the case. The purpose of this duty is to ensure that the parties have a full and fair opportunity to present their case and to facilitate the resolution of the matter.


The duty of disclosure applies to both parties in a case and requires them to disclose all relevant information and documents in their possession, custody, or control, unless there is a valid reason for withholding the information (such as legal privilege or public interest immunity). The duty of disclosure applies to all stages of the proceedings, including pre-action, pre-trial, and trial.


It is important for parties to be honest and transparent when disclosing information and documents, as failure to disclose relevant information can have serious consequences. If a party fails to comply with their duty of disclosure, they may be ordered to pay costs, or even face criminal charges for contempt of court.


There are several types of information and documents that are typically subject to the duty of disclosure in family law proceedings. These may include:


Financial documents: Parties are typically required to disclose financial documents such as bank statements, tax returns, pay slips, and superannuation statements. This is because the court needs to be able to assess the parties' financial circumstances in order to determine issues such as property settlement and child support.


Business documents: If a party is self-employed or runs a business, they may be required to disclose business-related documents such as financial statements, business plans, and contracts.


Property documents: Parties may be required to disclose documents related to any property that is relevant to the case, such as title deeds, mortgage documents, and rental agreements.


Documents relating to the care and welfare of children: Parties may be required to disclose documents related to the care and welfare of any children involved in the case, such as school reports, medical records, and reports from child welfare agencies.


It is important to note that the duty of disclosure applies not only to documents that are in the parties' possession, but also to documents that are in their control. This means that parties may be required to request and produce documents that are held by third parties, such as banks or government agencies


There are certain circumstances in which a party may be excused from disclosing certain information or documents. For example, a party may be able to claim legal privilege over a document if it was created for the purpose of legal advice. Similarly, a party may be able to claim public interest immunity if the disclosure of the information would be harmful to the public interest (for example, if it would prejudice an ongoing criminal investigation).


However, these exceptions to the duty of disclosure are narrowly interpreted by the courts, and a party seeking to rely on them must be able to demonstrate that the exception applies. If a party is unable to satisfy the court that an exception applies, they may be ordered to disclose the information or documents in question.


In summary, the duty of disclosure is a crucial aspect of family law proceedings in Australia. It ensures that the parties have a full and fair opportunity to present their case and facilitates the resolution of the matter. It is important for parties to be honest and transparent when disclosing information and documents, and to comply with their duty of disclosure. Failure to do so can have serious consequences, including the imposition of costs orders and, in extreme cases, criminal charges for contempt of court.


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