What is the Duty of Disclosure?
Each party in a family law dispute must disclose all information pertinent to a particular issue in the case to the opposing side. Following the Obligation of Disclosure in the Family Court and Federal Circuit of Australia (Family Law) Rules 2021, the obligations to complete are mentioned. This includes data written down on paper or stored in another format, such as a computer storage device, as well as records that the other parties may be unaware of. This task is completed before the case even begins, during the pre-action phase, and until the case is resolved.
Full Disclosure in Financial Cases
Special guidelines on complete and frank disclosure of financial issues and basic disclosure standards exist. The overall direct and indirect financial conditions of the party must be disclosed. It requires complete disclosure of all income sources, contingent or vested interests, property, and other economic resources. This is true where assets are owned directly by the parties, received directly by the parties, passed on to a beneficiary (such as de facto partner child of the party), or has been kept through trusts, corporations, companies, or legal entities. It is also necessary to provide information on any asset disposition (whether by sale, exchange, allotment, or gift) decided to make in the year preceding or following the parties’ final split that could affect, subdue, or reduce a claim.
Full Disclosure in Family Cases
Under Rule 6.05, parties must disclose any facts pertinent to a parental matter. Case-specific details and supporting documentation will be provided. For example, they could include school reports, medical records for a parent or child, letters and drawings from the child, pictures, or a diary. According to Rule 7.14, a party must provide a duplicate of the expert report to the other parties as well as the impartial children’s attorney if assigned.
Documents for Disclosure
As described in Chapter 6 of the Rules, the person may comply with the obligation to provide information to the opposite parties and the Court in various ways. They are as follows:
- Document creation and verification (Part 6.2)
- documents list (Rule 6.09)
- orders requiring disclosure (Division 6.2.3)
- responses to particular questions (Part 6.3)
Undertaking regarding Disclosure
All parties are required by Rule 6.02 to submit an undertaking confirming that they have read Parts 6.1 (disclosure between parties) and 6.2 (disclosure procedures) of the Regulations and understand their obligation to the Court and every other party, including any impartial children’s lawyer to provide a complete and truthful disclaimer of all information pertaining to the issues involved in the case on time.
An independent children’s lawyer is the only exception to this requirement. They must affirm that they have complied with the obligation of disclosure to the party’s best knowledge and abilities and realize that failure to do so might result in court contempt. If the party knows, or should reasonably know, that a statement or undertaking is incorrect or misleading, the party must not make the statement or sign the undertaking. Before the first court date, this undertaking must be submitted. The party should get legal counsel if they have legal concerns regarding their obligation to disclose records. While lawyers cannot provide the party with legal advice, court employees can assist with inquiries concerning court forms and court procedures.
Penalties
If a party fails to disclose information, fails to submit an undertaking, or submits a fraudulent undertaking, the Court can:
- deny the party the right to utilize that data or documentation as proof in the case;
- halt or partially reject the lawsuit;
- impose expenses on the party;
- If a party is observed to be in court contempt for failing to disclose the files or failing to file an undertaking, the Court may fine or imprison them.
