Going to Court: The Importance of Disclosure

What is the Duty of Disclosure?

The duty of disclosure requires all parties to provide the court and each other party all information relevant to an issue in the case.

This includes information and documents that the other parties may not know about.

Parties can request that certain documents be exempt from disclosure on the basis of privilege or relevance to the dispute.

When does the Duty of Disclosure start and end?

This duty starts with the pre-action procedures before the case starts and continues until the case is finalised.

Each party must continue to provide information and documents as circumstances change or more documents are created or come into their possession, power or control.

The obligation imposed by the duty of disclosure only ceases when the court makes final orders or when the parties reach an agreement.

What types of matters does the Duty of Disclosure apply to?

 The duty applies to both parenting matters and to financial matters. Chapter 13 of the Family Law Rules and Part 14 of the Federal Circuit Court Rules deal with Disclosure.

Disclosure in parenting matters

  • Rule 13.01 requires parties to make full and frank disclosure of all information relevant to a parenting case, at all stages in a case.

  • Rule 13.15 requires all parties (except for an independent children’s lawyer) to file an undertaking.

  • Rule 15.55 requires a party who has obtained an expert’s report for a parenting case to give a copy of the report to the other parties and the independent children’s lawyer (if appointed).

For parenting matters, the duty to disclose relates to any information relevant in considering the care and living arrangements for the children.

The relevant information and documents will be case specific but can include medical or expert reports, school reports, letters, photos, notes, drawings or any information relating to the care of the child or parenting capacity of the parties.

There is an obligation on both parties to provide the court with information relating to family violence, police intervention or the intervention of any custody agencies.

Disclosure in financial matters

Parties have a duty to the court and to each other to make full and frank disclosure of their financial circumstances: FCCR 24.03

To this end, each party must file a Form 13 Financial Statement with their Initiating Application or Response. The Financial Statement includes information relating to income, expenditure, assets and liabilities.

Parties are required to affirm or swear the affidavit to state that they are aware of their obligation to make full and frank disclosure to the parties and the court, and to state that all the information in their Form 13 is true to the best of their knowledge, information and belief.

Since the duty is a continuing duty, it is not discharged by the filing of the Financial Statement but continues until the court makes final orders or when the parties reach an agreement.

How is disclosure made or received?

The Family Law Rules provide a number of methods by which disclosure can take place.

Disclosure can be exchanged by way of:

  • Production of documents;

  • Inspection of documents;

  • Copying of documents;

  • List of documents;

  • Orders for disclosure; and

  • Answers to specific questions.

The most common method for disclosure is for the parties to provide a list of documents for disclosure, with the required documents being produced to the other party upon request. This can be undertaken by electronic means or in paper form.

Consequences of failure to disclose (non-disclosure)

Failure to provide full and frank disclosure or providing a false undertaking as to disclosure can result in severe penalties.

In the first instance, failure to disclose is likely to result in an order to comply with disclosure.

Continued failure to disclose or providing false or misleading information can result in the court making orders to stay or dismiss the proceedings or for you to pay costs to the other party.

Failure to provide full and frank disclosure may also lead to being found guilty of contempt of court for non-disclosure or for breaching an undertaking as to disclosure. The court could impose a fine or a term of imprisonment for contempt of court.

If parties provide false or misleading information relating to any of their finances, the court will deal with the situation using its discretion. Failure to disclose is likely to have adverse effects on the outcome of the case.