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What Is Disclosure?

07 Nov WHAT IS DISCLOSURE?

Posted at 15:08h in Blog by

Australian Family Law legislation is designed to make the process of Family Law disputes as quick and efficient as possible.  Part of this process is a principle called the duty of disclosure.

The duty of disclosure means that each party is responsible for producing relevant documentation and information regarding their matter that may affect the fairness or the outcome of the matter.  Disclosure documentation can be in electronic form or on paper.  It must just satisfy the principle that the party has provided full and frank disclosure to the other side on time.[1]

[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 6.01(1).

Both parties each have an obligation under the Family Law Act 1975 (Cth) and the relevant rules[1] of the Court to make full and frank disclosure to the other in a timely manner of all relevant financial records and documentation for property and financial disputes.  In order to properly assess a party’s entitlement to the property pool in a financial dispute, full and frank disclosure is required from both parties.

While the term “duty of disclosure” is mainly applied in property and financial disputes, it does at times arise in parenting proceedings as an important step.

The purpose of disclosure is to identify the key issues that need to be resolved, establish each party’s position, determine the best interests of the child in parenting matters, and reach the most equitable conclusion.

WHAT IS AN UNDERTAKING WITH RESPECT TO DISCLOSURE?

All parties are required to file an undertaking before the commencement of court proceedings stating that they have read Parts 6.1 and 6.2 of the Rules,[1] and are aware of their duty to provide full and frank disclosure of all information relevant to the matter before the Court.[2]  Entering into an undertaking is like making a promise to the Court and will be treated as if it were an Order of the Court.  An undertaking must not be signed if the party knows, or should reasonably know, that it is false or misleading.[3]  Doing so may result in serious consequences and penalties.

WHAT HAPPENS IF A PARTY IS NOT FULL AND FRANK WITH THEIR DISCLOSURE?

The obligation to make disclosure is strict.  Significant penalties may apply to parties that breach their obligation to make full and frank disclosure in a timely manner, including being charged with contempt of Court.

Failure to provide full and frank disclosure of any documentation and/or information required by the Court may be considered as evidence that a party is hiding assets.  In prior matters, the Court has acted on this assumption and made Orders in favour of the other party.

There can be significant penalties for failing to provide full and frank disclosure to the Court.[1]  The Court may:

  • Refuse to allow the party to use that information or document as evidence in their case;
  • Stay or dismiss all or part of the case;
  • Order costs against the non-disclosing party; and
  • Fine the party or imprison the party on being found guilty of contempt of Court for not disclosing the document/s or for breaching their undertaking.[1]

Earlier this year, a Brisbane-based Judge made a declaration that the Husband in a Family Law dispute was “in contempt” of Court for failing to disclose financial documents.[1]  The Judge made an order that the husband be sentenced to 12 months imprisonment.[2]  The husband appealed the order, with the wife’s support.[3]  The Judges of the appeal stated that imprisonment is a “last resort” in contempt of court cases.[4]

  • Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 6.01(1).
  • Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
  • Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
  • Federal Circuit and Family Court of Australia, ‘Duty of Disclosure’, Federal Circuit and Family Court of Australia, (Brochure, 2022) <https://www.fcfcoa.gov.au/fl/pubs/duty-disclosure>.
  • Federal Circuit and Family Court of Australia, ‘Duty of Disclosure’, Federal Circuit and Family Court of Australia, (Brochure, 2022) <https://www.fcfcoa.gov.au/fl/pubs/duty-disclosure>.
  • Federal Circuit and Family Court of Australia, ‘Duty of Disclosure’, Federal Circuit and Family Court of Australia, (Brochure, 2022) <https://www.fcfcoa.gov.au/fl/pubs/duty-disclosure>.
  • Federal Circuit and Family Court of Australia, ‘Duty of Disclosure’, Federal Circuit and Family Court of Australia, (Brochure, 2022) <https://www.fcfcoa.gov.au/fl/pubs/duty-disclosure>; Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 6.17(a)-(b); Family Law Act 1975 (Cth), s 112AP.
  • Ashleigh Stevenson, ‘Brisbane judge’s ruling overturned by Family Court as a ‘gross miscarriage of justice’ ABC News, (Web Page, 19 February 2019) <https://www.abc.net.au/news/2019-02-19/brisbane-judges-ruling-slammed-by-family-court/10825922>.
  • Ibid.
  • Ibid.
  • Ibid.
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