What is the ‘Duty of Disclosure’ in Family law?

Each party to a family proceeding has a ‘duty of disclosure’. This duty requires that each party must provide the other with all relevant information to the case at hand. This ensures that all parties to a case can achieve a just and equitable outcome. 

This duty of disclosure is an ongoing duty. This means that if new information relevant to the case arises, each party is expected to continuously disclose updated information to the other. 

What exactly must be disclosed? 

As noted above, what must be disclosed is all relevant information and documents to the family proceedings. Disclosure must be given to both the court and to the other party. This includes information that may go against one party’s case. 

For example, the duty of disclosure for a property settlement dispute would cover information such as: 

• The income of each party e.g. recent payslips
• Copies of any tax returns 
• Centrelink statements 
• Life insurance policies 
• Any other earnings of each party
• All property held in each party’s name 
• Any debts or liabilities in each party’s name
• Any other financial resources e.g. those that are held jointly with others, assets held in trusts 

Each party will also be required to disclose if they have sold or given away any property in the previous year before their relationship breakdown. This ensures that one party cannot discreetly move their property or sell it in order to ensure that the other party has no access to those assets. 

It is important to note that the duty of disclosure does not begin when court proceedings commence. The duty is imposed on both parties before court proceedings begin. This ensures that each party can save time and resources by having a complete picture of the issues and the facts before their case is presented in court. 

How does the disclosure process actually work? 

The way a party discharges its duty of disclosure will depend on what information is relevant to the family proceedings. Generally, parties will provide the other with a schedule of documents or information that they agree to give the other party access to. 

This ordinarily means that parties will exchange documents and will give materials to the other party once the information becomes available. 

Specifically for financial matters in family proceedings, both parties are required to file a financial statement in the Federal Circuit and Family Court of Australia. This statement should contain: 

• A summary of the financial circumstances of each party
• Details of each party’s earnings
• Details of each party’s debts and liabilities 
• The financial interests of each party 

What if my ex partner has not fulfilled their duty of disclosure? 

If one party suspects that the other party to a dispute has not fulfilled their duty of disclosure, there are a number of options available to them. 

For a property dispute, the individual may choose to: 

• Make land registry searches for property interests in the other party’s name
• Request information from the other party’s bank or superannuation fund

If court proceedings for the dispute have already commenced, the individual may also consider issuing a subpoena to relevant entities such as the: 

• ATO
• Any relevant banks
• Superannuation funds 

What are the consequences of breaching a Duty of Disclosure? 

Since the duty of disclosure is absolute, it does not matter if a party’s breach of this duty is accidental or purposeful. Failure to disclose means that the court can stay or dismiss parts or all of a party’s case. 

If this occurs, the court can also order that the accountable party pay the costs associated with delaying or stopping the case. In severe cases, the court also has the discretion to impose fines or find a party guilty of contempt of court. 

If you need any assistance regarding your duty of disclosure in a family proceeding please feel free to reach us via the contact form.