The Duty of Disclosure refers to the obligation on all parties to a family law dispute to disclose any information that is relevant to the issues in the case. This includes disclosing information and documents that the other party may not know about.
Disclosure in property matters
Full and Frank disclosure of each parties’ financial circumstances, including all assets & liabilities and all financial & non-financial contributions, is necessary in order to identify the asset pool and ensure the property is distributed appropriately. It includes disclosing earnings, income, interest, property and other financial resources whether held by the party individually, jointly, on behalf of another person or in a corporation, trust or other structure.
The duty begins with pre-action procedures and continues until the matter is finalised. It requires continual disclosure throughout the matter as circumstances change or more information or documents become available. Property that has been acquired or sold both before the commencement of the relationship and after the final separation is to be disclosed whether or not the other party contributed to their acquisition or sale. This includes gifts, lottery wins and inheritances.
It is important to note that disclosing financial assets and resources does not mean that the other party is automatically entitled to those resources. It simply means that the other parties and the court have knowledge of it so that they can be fully informed when determining how it should be dealt with.
Disclosure in parenting matters
The duty of disclosure also exists in parenting matters however the information that must be disclosed varies with each case. It may include doctor or therapist reports of the children and/or the parents or other people, school reports, photographs or the child’s drawings and diary entries.
What if someone withholds documents?
If one party refuses to disclose documents your family lawyer can file a subpoena or make an application to the Court seeking an Order that the other party or a third party produce the documents.
Consequences for not disclosing
Each party is required to make an undertaking to the Court which promises the Court that they have, to the best of their knowledge and ability, complied with the duty of disclosure.
A failure to disclose is taken very seriously by the Family Court. A party who fails to disclose can have costs ordered against them and may lose their entitlements under the Act. If non-disclosure is revealed after the making of an Order it can be used as the basis to set aside that Order. The Court also has the power to implement fines and imprisonment for contempt of court.
For more information and advice on the Duty of Disclosure or Family Law generally, contact WMD Law on (02) 9525 8688
