What Is Duty of Disclosure
The duty of disclosure is a legal obligation that is created between you and your spouse in a family law case. As the name implies, the duty of disclosure requires you to disclose your assets to one another and to the court. This obligation is supposed to create a fair and just environment for both parties in the family law case. The duty of disclosure is not just limited to the spouse. A second party may also be said to be liable.
What is duty of disclosure?
Duty of disclosure requires all parties to a family law dispute to provide to each other party all information relevant to an issue in the case. This includes information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other parties may not know about. This duty starts with the pre-action procedure before the case starts and continues until the case is finalised.
As a party, you must continue to provide such information as circumstances change or more documents are created or come into your possession, power or control. For more information, see Rule 6.01 of the Rules.
Full and frank disclosure in financial cases
In addition to general disclosure requirements, there are specific rules about full and frank disclosure in financial cases (see Rule 6.06). Disclosure must be of the party’s total direct and indirect financial circumstances.
It requires disclosing all sources of earnings, interest, income, property (vested or contingent interests) and other financial resources. This applies whether the property, financial resources and earnings are owned by or come to the party directly, or go to some other person or beneficiary (for example, the party’s child or de facto partner) or are held in corporations, trusts, company or other such structures.
Also required to be disclosed is information about any property disposal (whether by sale, transfer, assignment or gift) that was made in the year immediately before the separation of the parties or since the final separation and that may affect, defeat or deplete a claim.
What forms are used?
You must file a Financial Statement. If that does not fully meet your duty of disclosure, you also need to file an affidavit giving further particulars.
If your financial circumstances change after you file the Financial Statement, you must file within 21 days after the change of circumstance an amended Financial Statement, or if the amendments can be set out clearly in 300 words or less an affidavit containing details about the your changed financial circumstances.
Certain applications have additional requirements, for instance:
- If you are a party to a maintenance application, Rule 6.06(9) sets out the documents you must take with you on the first court date.
- If you are a party to a property application, certain documents must be exchanged before the first court date (see Rule 6.06(8)).
Full and frank disclosure in parenting cases
Rule 6.05 requires parties to make full and frank disclosure of all information relevant to a parenting case, at all stages in a case. The relevant information and documents will be case specific. For example, they may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs, a diary.
Rule 7.14 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).
Disclosure of documents
Chapter 6 of the Rules details a number of ways in which you may be required to comply with your duty of disclosure to the other parties and the Court. These include:
- production and inspection of documents (Part 6.2)
- list of documents (Rule 6.09)
- orders for disclosure (Division 6.2.3), and
- answers to specific questions (Part 6.3).
Undertakings about disclosure
Rule 6.02 requires all parties (except for an independent children’s lawyer) to file an undertaking stating that you:
- have read Parts 6.1 (disclosure between parties) and 6.2 (disclosure procedures) of the Rules, and
- are aware of your duty to the Court and each other party (including any independent children’s lawyer) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner.
- undertake that, to the best of your knowledge and ability, you have complied with the duty of disclosure, and
- acknowledge that breach of the undertaking may be contempt of court.
You must not make a statement or sign an undertaking if you know, or should reasonably know, that it is false or misleading.
This undertaking must be filed before the first court date.
If you have any legal questions about your duty to disclose documents, you should get legal advice. Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.
If you fail to disclose or file an undertaking or file a false undertaking, the Court may:
- refuse to allow you to use that information or document as evidence in your case
- stay or dismiss all or part of your case
- order costs against you
- fine you or imprison you on being found guilty of contempt of court for not, or disclosing the document or for breaching your undertaking.
Discovering hidden assets can be very frustrating. So if your spouse has hidden assets, it pays to know your legal options. If you’re suspecting that your spouse is hiding any assets from you, get in touch with Springfields Legal. We specialise in dealing with family law disputes, so rest assured that we can help settle the issue with your best interest in mind. Schedule an appointment today!