Disclosure is a term used in family law proceedings that basically means providing all relevant information and documents to the other party. It is sometimes referred to as ‘full and frank disclosure’, and parties have an obligation to provide disclosure in both financial and parenting matters.

This obligation exists even before parties go to Court and is ongoing as your circumstances change or more documents are created or come into your possession, power and control.

What do I have to disclose in parenting proceedings?

In parenting matters, parties have a duty to provide documents that are relevant to the matter including, but not limited to the following:

• A party’s criminal records;
• Documents filed in Intervention Order proceedings (family violence matters) concerning a party;
• Medical reports about a child or party;
• Photographs;
• Letters and drawings done by the child; and/or
• School reports.

The types of documents that need to be disclosed will be case-specific based on your unique circumstances. We recommend you seek advice from an experienced family lawyer to make sure both you and all other parties are properly complying with your obligations to make disclosure.

What do I have to disclose in financial proceedings?

Each party to a financial family law matter (property settlement) has a duty to provide full and frank disclosure about their assets and liabilities. Hidden or undisclosed assets can usually be traced by family lawyers and there may be very serious consequences of failing to disclose assets.

In financial proceedings, parties have a duty to provide documents that are relevant to the matter including, but not limited to the following:

• Your last three tax returns;
• Your three most recent payslips;
• Any other details of your income/earning capacity;
• Your most recent superannuation statement;
• If you are a member of a self-managed superannuation fund, a copy of the trust Deed and financial statements for the last three years;
• Your bank statements for the last three years;
• Any interest you have in property (whether fully or jointly owned, such as real estate, cars or personal belongings of significant value);
• Any other financial resources (for example, if you have an interest in a deceased estate/inheritance);
• Details of any shareholding in a public company;
• If you have an interest in a trust, documents relating to the trust;
• If you have an interest in a private company, documents relating to the company;
• If you have an interest in a partnership, documents relating to the partnership;
• If you have disposed of any property within the 12 months before separation or since separation, full details of the sale/disposal;
• A list and supporting documents for any liabilities in your sole or joint name (for example, credit card debts, personal loans or mortgages); and
• If there has been an increase in any liabilities since separation, an explanation and supporting documents to explain the increase.

Depending on the date of separation and other issues in dispute, parties may be required to provide these documents from a larger time period. The three-year timeline is just a starting point.

Generally speaking, anything that points to your financial position must be disclosed. Sometimes, documents from a third party (for example, a new de facto partner or assets held in corporations, companies and trusts) must also be disclosed.  We recommend you seek advice from an experienced family lawyer to make sure both you and all other parties are properly complying with your obligations to make disclosure.

Undertaking to disclose

Before commencing proceedings, parties are required to complete and file an undertaking (a promise to the Court) that you have read the relevant family law rules relating to disclosure and are aware of your duty to disclose to both the Court and the other parties in a timely manner.

You must undertake that you have complied with your duty of disclosure to the best of your knowledge and ability and acknowledge that breaching the undertaking may be contempt of court (disobeying or disrespecting the Court). Penalties apply if you are found guilty of contempt of court (see below).

What happens if a party fails to comply with their duty to disclose?

If you fail to disclose a relevant document or falsely file an undertaking, the Court may:

• refuse to allow you to use that information or document as evidence in your case at a later date;
• stay (put on hold) or dismiss all or part of your case;
• order costs against you;
• fine you or imprison you for being found guilty of contempt of court for not disclosing the documents.

If there is a Court Order for you to disclose documents, failing to follow the Court Order may result in other consequences. For more information on compliance with family law Orders, you can visit our previous blogs:

• Compliance with Parenting Orders
• Compliance with Family Law Financial Orders

If another party fails to disclose documents relevant to the dispute, you may still be able to obtain that information through other means – such as through a subpoena (a Court Order that compels a third party, such as a bank or medical practitioner, to produce specific documents). You can read more about subpoenas in our blog “Your guide to subpoenas in family law”.

How a family lawyer can help

Smith Family Law can advise you as to your duty of disclosure and discuss potential options to resolve your matter. We recommend getting professional advice early to make sure you have all the information you need to negotiate a fair outcome.

Contacting Smith Family Law

📞 03 8625 8957

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