What is the Duty of Disclosure in Family Law Matters?

Posted on June 23, 2023 by Lauren Spence

Lauren Spence Family Lawyer Sydney

Lauren Spence

Author
Lauren is a passionate family lawyer who genuinely appreciates the emotional difficulty that comes with divorce and separation. Since her admission as a solicitor of the Supreme Court of NSW, Lauren has practiced almost exclusively in the area of divorce and family law.

Key Takeaways

  • In family law matters, each party has the duty of disclosure, which means they must provide all relevant information that could impact the outcome of their case. This information must be provided to the other party and the court.
  • The duty of disclosure involves disclosing various types of information, such as documents, reports, bank statements, medical records, and other information that could affect the fairness of the case.
  • Disclosure is crucial for fair and just outcomes in family law matters. It ensures that both parties have access to the same information and facilitates the resolution of disputes.
  • Failure to disclose information can lead to unfavourable decisions, delays in legal proceedings, and penalties like fines, costs and imprisonment.
  • If you’re ever unsure whether information or a document is relevant to your matter the best thing you can do is seek legal advice from an experienced family lawyer.

In family law matters, each party has the duty of disclosure, which means that they must provide all of the information that they are aware of that could impact the outcome of their matter. However, while each party may have the duty of disclosure, it’s common for people to be confused about what they need to disclose or what information they should have access to.

We know that being involved in a family law matter is quite often a stressful time, so in this article, we’ll help to simplify the concept of disclosure and give you an idea of the types of information you may need to disclose, as well as the consequences of failing to disclose relevant information.

What is the duty of disclosure?

The duty of disclosure means that a person involved in a family law dispute or matter must provide (or disclose) all relevant information that relates to a matter that is in dispute. This information must be provided to the other party to the matter and the Court. The duty of disclosure is sometimes referred to as full and frank disclosure or family law disclosure.

The information disclosed could be documents, both paper and electronic, as well as reports, bank statements, medical records and various other pieces of information that could affect the outcome and fairness of the case.

Disclosing this information means that all parties have access to the same information which can help to identify the matters that need to be resolved and potentially make it easier to resolve them.

A wide range of documents could help resolve family law matters, but ensuring you’re providing all of the relevant information is sometimes not easy if you’re not sure what you need to do. If you’re not working with a lawyer to resolve your matter, we still suggest seeking legal advice from an experienced family lawyer to ensure you have disclosed all of the relevant information.

What does the law say about disclosure?

The Federal Circuit and Family Court of Australia (Family Law) Rules 2001 – also referred to as “the Family Law Rules” – outlines the requirements of the duty of disclosure in Chapter 6.

Chapter 6 of the Family Law Rules states that “…each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.”

Division 6.1.1 of Chapter 6 of the Family Law Rules outlines the general rules of disclosure that apply to all parties involved in family law matters, while Division 6.1.2 outlines those relating to parenting proceedings and financial proceedings.

The Family Law Rules also includes the requirement that the parties involved in the matters must file a written notice that states that they have read parts 6.1 and 6.2 of the document and that they are aware they have the duty to give full and frank disclosure of all relevant information, and that they have done so to the best of their ability.

Disclosure can be confusing to understand, as can legislative documents, which is why working with a family lawyer can be extremely beneficial in these situations.

You can read more about the duty of disclosure in the Family Law Rules here.

Why does disclosure matter?

The duty of disclosure is important for a number of different reasons, including but not limited to:

  • Disclosure allows for fair and just outcomes. The aim is to ensure that decisions that are fair for both parties can be made. The Australian family law system has been designed to prevent a person from being disadvantaged when a relationship or marriage ends. It recognises that contributions are made in various ways and people are entitled to compensation and support. Having all relevant information available makes the process of reaching a fair outcome a lot easier.
  • Matters could be resolved faster when there is full disclosure. Legal matters of all kinds, including family law matters can be time consuming and costly. When information is disclosed it makes it easier to identify the issues in dispute and negotiate with all of the right information.

The disclosure also has some other potential benefits including:

  • Further disputes could be avoided. After a matter has been resolved, it is possible for further legal action to be taken if it comes to light that a party was not privy to all of the information that could impact the outcome of their matter originally.
  • Disclosure ensures that your lawyer has information that they can use to formulise a strategy to resolve your matter.
  • Your willingness to cooperate and provide all truthful information could help to encourage the other party to do the same and possibly even change their approach to the negotiation and resolution process.

When do you need to disclose information?

In the most ideal of circumstances, all information should be disclosed before a court case starts, however, the duty to disclose relevant information to your family law proceedings is an ongoing obligation until your matter is resolved. Information may arise throughout various stages of your matter and it’s important that you provide this information.

As we touched on earlier, prior to the commencement of your proceedings, you will be required to file an undertaking that states that you have read parts 6.1 and 6.2 of the Family Law Rules and that you have to the best of your ability (and knowledge) complied with your duty of disclosure.

If you’re not sure whether any information is impactful to your matter, we highly recommend seeking legal advice from an experienced family lawyer.

What information actually needs to be disclosed?

Family law matters usually arise due to the end of a relationship and commonly involve parenting matters or financial matters. While the exact information that you may need to provide in your matter will be dependent on your unique circumstances, we’ve included a list of some of the types of information that may be required.

 

Disclosure and parenting matters

Full and frank disclosure is required for parenting matters, such as child custody, parental responsibility and incidents of family and domestic violence. Resolving parenting matters is about ensuring the children’s best interests have been prioritised. Some of the information you or the other party may need to provide in a parenting matter include:

  • Details of the proposed living arrangements for the child, including where they will primarily reside and visitation schedules.
  • Information about the child’s schooling and extracurricular activities.
  • Details of the child’s medical history, including any pre-existing conditions or disabilities.
  • Medical reports and records of parents and/or children, including doctor’s reports, diagnoses, and treatment plans.
  • Information about any prescribed medications or therapies for the child.
  • Details of the child’s educational needs and progress, including school reports and assessments.
  • Details of the current childcare arrangements, including names and contact information of childcare providers.
  • Information of any incidences of family or domestic violence, including interventions by other parties besides parents.
  • Criminal records.

You may also be required to disclose financial resources and information to resolve parenting matters. This may include information such as:

  • Income details of both parents, including payslips, tax returns, and employment contracts.
  • Information about government benefits or pensions received by either parent or the child.
  • Details of any child support agreements or assessments.
  • Information about any significant financial changes or assets that may affect child support obligations.

Disclosure and financial matters

Financial matters such as spousal maintenance and property settlements can be heavily reliant on the contributions of each party and their financial circumstances. Full and frank disclosure is extremely important in financial matters and may involve a wide range of different kinds of documents and information needing to be disclosed. Some information that you be required to disclose includes:

  • Employment details, including pay slips, employment contracts, and job position.
  • Tax returns, including Notice of Assessment and Taxation Notices.
  • Details of any government benefits, pensions, or allowances received.
  • Information about any additional sources of income, such as rental properties or investments.
  • Detailed list of all real estate properties, including residential, investment properties, and land.
  • Valuations of properties or assets, including recent appraisals or expert assessments.
  • Financial statements for all bank accounts, including savings, current, and investment accounts.
  • Information about vehicles, including cars, motorcycles, boats, or other significant assets.
  • Details of any loans, mortgages, credit cards, or debts, including outstanding balances.
  • Superannuation statements, including accumulation or pension accounts.
  • Details of any shares, stocks, bonds, or other investments held.
  • Information about trusts, including discretionary trusts or family trusts.
  • Details of any business interests or partnerships.
  • Insurance policies, including life insurance, health insurance, or property insurance.
  • Any information about property, trusts, assets or other financial resources where you may benefit from it indirectly.
  • Information about the disposal of any assets in the year prior to and the year following the separation.

We cannot stress enough, if you’re not sure whether you need to disclose something, talk to a family lawyer about it to avoid any negative consequences of non-disclosure.

What happens if you fail to comply with your duty of disclosure?

Failure to disclose information can have very serious consequences and impact the outcome of your matter. Some of the consequences of failing to disclose all information include:

  • The court may make an unfavourable decision against a party if they fail to disclose all relevant information as they were seen as interfering with the case.
  • The legal proceedings could be delayed or prolonged which may increase the legal costs overall. This may be due to the court requiring additional hearings or other information may be required.
  • If an agreement has been reached between the parties but undisclosed information is discovered, this could result in a dispute or challenges. It may also make cooperation between the parties difficult.
  • A party could be found to be in contempt of the court, and may be penalised with fines, orders to pay costs, unfavourable orders made against them, or even imprisonment.

The duty of disclosure is very serious and if you ever find yourself involved in a legal matter and not sure whether you’re complying with this duty, you should legal support.

Why do some people not disclose all information?

Occasionally people may try to circumvent the law when it comes to resolving matters, such as in financial cases like property settlements and purposely fail to disclose all relevant information, such as their assets and true financial position.

While every individual’s motivations may vary, there are several reasons why some people may purposefully fail to disclose information in family law matters:

Financial Advantage

One of the primary reasons for non-disclosure is the desire to gain a financial advantage. By concealing assets, income, or liabilities, a person may attempt to secure a more favourable outcome in terms of property division, spousal maintenance, or child support. They may believe that withholding certain information will allow them to retain more assets or reduce their financial obligations.

Fear of Consequences

Some individuals may fear the potential repercussions associated with full disclosure. They may worry that revealing certain financial information could lead to higher support payments, increased property division, or greater financial obligations. The fear of negative outcomes may drive them to withhold information to protect their own interests.

Strategic Considerations

In certain situations, individuals may strategically choose to withhold information as part of their legal strategy. They may believe that by keeping certain details undisclosed, they can negotiate from a stronger position or gain leverage during court proceedings. However, it’s important to note that deliberately withholding information can have negative consequences and may not align with ethical or legal standards.

Emotional Reasons

Family law matters are often emotionally charged, and individuals may let their emotions guide their actions. In contentious cases, a person may purposely fail to disclose information as a means of exerting control or seeking revenge against the other party. It becomes a way to exert power or inflict harm, rather than prioritising the fair resolution of the matter.

Lack of Awareness

In some cases, individuals may not fully understand their duty of disclosure or the consequences of non-compliance. They may underestimate the importance of providing complete and accurate information or mistakenly believe that withholding certain details is permissible. This lack of awareness can lead to unintentional non-disclosure.

How Unified Lawyers Can Help You

Family law matters can be stressful, serious and extremely complex, but you don’t need to muddle your way through them alone. Working with a family lawyer can help you understand your obligations – like the duty of disclosure – as well as help you resolve matters easily and fairly.

At Unified Lawyers, we’re proud to offer our services Australia-wide to people involved in all kinds of family law matters. Our extensive experience as family lawyers allows us to work closely with you to find the best outcome for your unique situation.

Talk to us today about your family law matter – call us on 1300 667 461 or book a free consultation online using the button below.

Lauren Spence Family Lawyer Sydney

Lauren Spence

Author
Lauren is a passionate family lawyer who genuinely appreciates the emotional difficulty that comes with divorce and separation. Since her admission as a solicitor of the Supreme Court of NSW, Lauren has practiced almost exclusively in the area of divorce and family law.

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