Mid Mountains Legal Blog

What is full and frank disclosure?

Anthony Steel

Disclosure in family law (also referred to as “full and frank disclosure”) means the obligation for parties to provide all information relevant to their family law matter to each other.

New duty of disclosure directions

On 1 September 2021, the Federal Circuit Court and Family Court merged and formed the Federal Circuit and Family Court of Australia. Chapter 6 of the Federal Circuit and Family Court of Australia Rules 2021 (the Rules) deals with disclosure in family law matters.

Previously, in family law court proceedings and negotiations about, The new rules expand the obligation for both parties to provide to each other all relevant documentation about their financial circumstances in a timely manner from financial matters to encompass parenting matters.

The Duty of disclosure aims to assist parties to focus on genuine issues and to reduce costs.

Duty of disclosure obligations

The obligation to provide full and frank disclosure means that you have provided everything that is relevant to your family law matter that the Court needs to consider and there are no relevant documents or information that you have not disclosed. The disclosure is of anything that relates to the parties’ financial positions, including:

  1. companies either solely or partly owned.
  2. bank accounts;
  3. credit cards;
  4. properties either solely or partly owned; and
  5. payslips and earnings received;
  6. superannuation;
  7. tax returns; and
  8. shares portfolios.

Disclosure can also include an obligation to provide information such as:

  1. family trusts or the details of a trust a party is a beneficiary of;
  2. financial resources; and
  3. shares in a unit trust.

Why is duty of disclosure important?

The Duty of disclosure ensures that all parties are provided for in Court Orders and Judgements and that there is transparency regarding the asset pool so that any split does not unknowingly prejudice either party.

When does my duty of disclosure commence?

Disclosure is an ongoing obligation and duty throughout your family law proceedings. It starts when parties start negotiating before the start of any Court proceedings and continues until proceedings have finalised.

You will generally be requested to disclose information and/or documents at the beginning and at key stages of a matter. However, if there is a major change to your assets or parenting arrangements (ie. purchase of a property, car or boat, or issues arising at the children’s schools), you should provide disclosure of those changes as soon as possible.

What is an “undertaking as to disclosure”?

If your matter ends up in the Federal Circuit and Family Court of Australia (the Court) you will have to file an undertaking as to disclosure. This confirms that you are aware that you owe the Court a duty of disclosure and have, to the best of your knowledge and ability, complied with your duty.

What if I know my former partner has not disclosed everything?

At any time during your matter, you can ask another party:

  1. to update figures already disclosed but which have changed;
  2. for disclosure of information or documents that you are aware of, that relate to proceedings; or
  3. to provide information relating to a specific asset.

If during Court proceedings a party does not provide the necessary disclosure, you may be entitled to file a subpoena which would compel a person to produce documents or give evidence at a hearing.

Failure to disclose financial information can result in the Court setting aside an application or Court Order.

Lawyers’ obligations

Lawyers have an obligation to the Court to ensure that their client complies with their duty to disclose. If you do not provide full and frank disclosure relevant to the proceedings, your lawyer has an obligation to take appropriate action, which may include ceasing to act for you.

My matter only relates to parenting. Why do I need to provide disclosure?

Even if the matter relates to parenting matters only, you must provide full and frank disclosure. Parenting matters do not require you to provide specific documents, but you must provide documents that are relevant to an issue in dispute in your parenting matter.

This might include, for example:

  1. a child’s medical reports;
  2. letters and communications from a child;
  3. school reports;
  4. information related to family violence including intervention orders; and
  5. a party’s criminal records.

Can I object to something requested in disclosure?

There cannot simply be blanket requests for disclosure. Requests for disclosure of documents or information must be relevant to the family law matter.

If a specific request is irrelevant and made to create undue delays or stress or to put pressure on you, you have the right to request further information as to it’s relevance and potentially object to a request.

What if I don’t provide full and frank disclosure?

If the Court finds that you have not provided full and frank disclosure or that you have:

  1. Suppressed disclosure;
  2. Attempted to hide an asset;
  3. Withheld disclosure;
  4. Doctored disclosure; or
  5. Attempted to dispose of assets

there are serious implications, including cost orders against you, fines and even in some cases imprisonment.

What now?

If you have any questions about your disclosure obligations or you believe your former partner is not providing full and frank disclosure, contact us for more information or to arrange a consultation with a lawyer.

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