What are Disclosure Requirements in Parenting Cases?

Partners going through a separation or divorce may be unable to agree about the parenting of their children following the dissolution of the relationship. They may have opposing views as to who their children should live with and how often their children should spend time with the other parent.

In disputes of this kind, the law requires that there be an exchange of information between the parties and a supply of information to the court, so that decisions about the care and living arrangements of a child (or children) can be made in the child’s (or children’s) best interests.

This objective – to reach an outcome that best promotes the child’s overall health and well-being – is a guiding principle in parenting matters, and can only be fulfilled if both parties comply with disclosure requirements.

What is the nature of the duty of disclosure in parenting matters? 

As with financial disclosure in family law matters, the standard to be met is that of “full and frank” (i.e. complete and honest) disclosure. The parties are required to provide all information and documents relevant to the dispute, including any information and material that may be within the knowledge or control of one party but not the other.

This will equip the parties and the court to build a picture of the circumstances of the case in its entirety, and from there to formulate an appropriate Parenting Plan, Consent Order, or Parenting Order.

Disclosure should be made in a timely and cooperative manner, and in good faith, in order to facilitate a quick and amicable settlement and avoid costly and protracted court proceedings. 

When and for how long do the disclosure requirements apply?

The obligation to disclose is an ongoing one, beginning from the point of separation and extending until the resolution of the parenting dispute via negotiation, or at mediation or final hearing.

Over this period, the parties are required to provide, in a timely manner, all existing information relevant to the dispute as well as new information as and when it arises. 

What must be disclosed in parenting matters? 

The obligation is to provide the other party (and the court) with information or documents that are relevant to the issues under consideration – for instance, living and care arrangements, visitation and child support.

In practice, this means that any material or information capable of demonstrating parental behaviour and circumstances liable to impact on the child’s welfare must be disclosed. 

Examples of documents and information which will generally need to be disclosed include:

• criminal records of a party;
• medical, allied health and other expert reports about a party or child;
• school reports and other evidence of a child’s academic performance; 
• letters, drawings and diary entries by a child (or party);
• photographs;
• information regarding a party’s work hours; 
• information as to the amount of time a child spends in the care of each parent respectively; 
• details of any factors that may impair a parent’s capacity to care for the child, such as chronic medical conditions, mental illness, or substance abuse issues;
• official documentation of any incidents of domestic/family violence such as intervention orders, police reports, or reports of other relevant statutory bodies including custody or child protection agencies. 

What form does disclosure take?

There are no strict rules as to how the parties are to provide information in fulfilment of their disclosure obligations.

Typically, there is an exchange of material whereby each party produces a schedule of documents that they agree to share (either in digital or paper form) upon request by the other party. 

What are the consequences of non-disclosure or inadequate disclosure?

A failure to give full and frank disclosure may be attended by serious repercussions. Importantly, non-disclosure or inadequate disclosure without reasonable explanation can compromise a party’s case and reduce the likelihood of a favourable outcome.

In respect of a non-compliant party, a Court may see fit to:

• dismiss or stay the party’s case (in whole or part);
• make an adverse costs order;
• prohibit the party from relying on any undisclosed information as evidence to support their case;
• make an adverse inference based on the failure to disclose;
• impose a fine or prison sentence for contempt of court.

In addition, where final orders have been issued and a breach of the disclosure requirements is subsequently discovered, the Court may determine that there has been a miscarraige of justice and proceed to modify or set aside the relevant orders.

Key takeaways:

• In parenting disputes, the parties are under a duty to disclose all information relevant to the care and welfare of their child/children. 
• The parties must give “full and frank” disclosure of all documents and information evidencing their suitability and capacity for parental responsibility and residence.
• Failure to disclose or inadequate disclosure may adversely impact the outcome of proceedings and result in heavy penalties. 

For advice about whether certain information in your (or your former partner’s) possession is relevant to your parenting case and must be disclosed, please contact us to speak with one of our experienced family lawyers.