All parties to a family law proceeding have a duty to make full and frank disclosure to the other party or parties in that proceeding. This applies to both parenting and property proceedings and means that you must hand over (disclose) to the other party any and all documents which are in your power, possession or control which relate to the issues in dispute.
As the issues in dispute are different in every matter, the specific documents which will form a party’s duty of disclosure will differ from case to case. Generally speaking however, in property proceedings it will include any document which evidences a party’s financial position (whether past, present or future) and in parenting proceedings, it may include medical reports, school reports and any criminal records.
Further specifics as to the nature of documents which may fall under a party’s duty of disclosure can be found under Rule 6.05 and Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for both parenting and property proceedings, respectively.
When does my duty of disclosure start and finish?
A party’s duty of disclosure in family law proceedings begins from the outset of your matter. This means that your matter may not yet be in Court and no proceedings have begun, however you still have a duty to make full and frank disclosure.
Your duty of disclosure finishes when your matter is complete, this means when your Orders issue from the court concluding your matter.
I don’t want to disclose a document. Do I have to?
Rule 6.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sets out that a party must disclose, but need not provide a copy of a document:
- for which there is a claim of privilege from production;
- a document that is no longer in the disclosing party’s possession or control; or
- a document a copy of which has already been provided, if the copy contains no change, obliteration or other mark or feature that is likely to affect the outcome of the proceeding.
This means that you must disclose to the other party the existence of the document but may not need to disclose the document itself if it is found to fall into one of the listed exceptions.
What happens if I don’t disclose a document?
It is important to comply with your duty of full and frank disclosure, as not doing so could result in:
- a costs order against you;
- a fine;
- being charged for being in contempt of Court; or
- any financial agreement reached later being set aside.
If you are unsure whether you are complying with your duty of full and frank disclosure, or if you have to disclose a particular document, we recommend seeking tailored legal advice.
