What is the Duty of Disclosure?

The duty of disclosure mandates that all parties in a Family Law dispute must share all relevant information with each other. This obligation applies to information recorded in physical documents as well as data stored electronically. The duty begins during the pre-action procedures, prior to the commencement of formal proceedings, and continues until the final resolution of the case. Importantly, parties are required to update their disclosures as new information becomes available or as circumstances change.

For a comprehensive understanding of your obligations, it is essential to refer to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. If you are unsure about any aspect of your disclosure duties, seeking legal advice is strongly recommended.

Full and Frank Disclosure in Financial Cases

In financial matters, the requirement for full and frank disclosure is particularly stringent. According to Rule 6.06, parties must disclose their complete financial situation, including all direct and indirect sources of income, property (whether owned or held through trusts, companies, or other structures), and financial resources. This disclosure obligation extends to any financial interests that might benefit other individuals, such as children or partners.

Additionally, parties must disclose any property transactions, including sales, transfers, or gifts, that occurred in the year leading up to the separation or after the final separation if they could impact the financial claims being made.

Required Forms for Financial Disclosure

To fulfil the disclosure requirements, parties must submit a Financial Statement. If this document does not fully satisfy the disclosure obligations, an additional affidavit detailing further information must be filed. Should there be any changes to the party’s financial circumstances after the submission of the Financial Statement, an amended statement or an affidavit outlining these changes must be filed within 21 days.

Specific applications may have additional requirements. For instance, in maintenance applications, Rule 6.06(9) lists the documents that must be brought to the first court date, while Rule 6.06(8) outlines the documents that must be exchanged in property applications before the initial hearing.

Full and Frank Disclosure in Parenting Cases

In parenting cases, Rule 6.05 requires the full and frank disclosure of all information pertinent to the case throughout its duration. The type of information and documents to be disclosed will vary depending on the specifics of the case but may include medical records, school reports, and other documents related to the child’s welfare.

Additionally, Rule 7.14 mandates that any expert reports obtained for a parenting case must be shared with all other parties and the independent children’s lawyer (if one has been appointed).

Disclosure of Documents

Chapter 6 of the Rules outlines various methods by which parties may be required to meet their disclosure obligations, including:

• Production and Inspection of Documents (Part 6.2): Parties may be required to produce and allow inspection of documents.
• List of Documents (Rule 6.09): Parties must provide a list of all relevant documents.
• Orders for Disclosure (Division 6.2.3): The court may issue orders compelling the disclosure of specific documents.
• Answers to Specific Questions (Part 6.3): Parties may be required to answer questions related to the disclosed documents.

Undertakings Regarding Disclosure

Rule 6.02 requires all parties, except independent children’s lawyers, to file an undertaking confirming that they have read and understood Parts 6.1 (disclosure between parties) and 6.2 (disclosure procedures) of the Rules. This undertaking affirms the party’s awareness of their duty to provide full and frank disclosure of all relevant information in a timely manner and acknowledges the potential consequences of breaching this duty.

The undertaking must be filed before the first court date, and it is crucial not to make any false or misleading statements in this document. Filing a false undertaking or failing to disclose relevant information can lead to serious consequences, including being held in contempt of court.

Penalties for Failure to Disclose

Non-compliance with disclosure obligations or filing a false undertaking can result in significant penalties. The court may:

• Prohibit the use of undisclosed information or documents as evidence.
• Stay or dismiss all or part of the case.
• Order the non-compliant party to pay the other party’s legal costs.
• Impose fines or imprisonment for contempt of court.

Challenges in the Discovery Process

The discovery process can be complex and time-consuming, particularly in cases involving substantial assets, businesses, or where one party is not forthcoming with information. Common challenges include:

• Non-Disclosure: One party may attempt to conceal or withhold relevant documents, making it difficult for the other party to obtain a fair outcome. This can be addressed through court orders compelling disclosure or through the use of forensic accountants or other experts to trace assets.
• Voluminous Documents: In some cases, the volume of documents involved can be overwhelming, making it challenging to identify the key pieces of evidence. Parties may need to employ document management systems or seek assistance from legal professionals to manage this process effectively.
• Costs: Discovery can be expensive, particularly if disputes arise over the relevance or admissibility of certain documents. It is essential for parties to weigh the costs of discovery against the potential benefits and to seek cost-effective solutions where possible.

The Role of Legal Practitioners

Legal practitioners play a crucial role in guiding their clients through the discovery process. They are responsible for advising clients on their disclosure obligations, assisting with the preparation of discovery documents, and ensuring that all relevant information is properly disclosed. Practitioners must also be vigilant in identifying instances of non-disclosure and taking appropriate action to protect their clients’ interests.