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The Duty of Disclosure in Family Law - in both parenting and property matters

Published January, 2025

In Australia, there is an obligation on separated couples to disclose relevant documents in both parenting and property proceedings under the Family Law Act 1975 (Cth). The Duty of Disclosure requires each party involved in a family law dispute to provide full and frank disclosure of all relevant information and documents directly or indirectly related to the issues in the case.

This duty promotes transparency and ensures all parties have access to the same information, which is crucial for reaching fair and just outcomes.

Parenting Matters

In parenting matters, the Duty of Disclosure requires each parent to disclose all information and documents relevant to determining what is in the best interests of the child. This includes:

  • The child’s living arrangements
  • Health and education details
  • Other factors impacting the child’s well-being

Parents are expected to provide information about their:

  • Proposed parenting arrangements
  • Ability to care for the child
  • Work schedules and other influencing factors

Relevant Documents

For parenting matters, the Duty of Disclosure may include:

  1. Medical records and assessments (for children and/or parents).
  2. Drug or alcohol screening test results.
  3. School reports.
  4. Evidence of communication and interaction with the children.

Non-compliance with this duty can result in serious legal consequences.

Property Matters

In property matters, both parties must provide full and frank disclosure of their financial circumstances, ensuring clarity about each party’s position. This includes disclosing:

  • Assets (real estate, bank accounts, investments, etc.)
  • Liabilities (debts, loans, credit cards, etc.)
  • Income and expenses

This transparency enables the court to make a fair and equitable division of matrimonial property.

Typical Documents Required

  1. Financial Statements: Details of income, expenses, assets, and liabilities.
  2. Tax Returns: Personal and business tax returns (past 3-5 years).
  3. Bank Statements: Recent statements for savings, checking, and investment accounts.
  4. Pay Slips: Evidence of income from employment, rental income, dividends, etc.
  5. Property Documents: Title deeds, mortgage details, valuation reports.
  6. Superannuation Statements: Statements for all superannuation funds.
  7. Business Records: Financial records for any business ownership or partnership.
  8. Loan Agreements: Personal loans, credit card statements.
  9. Trust Documents: Trust deeds and financial statements for trusts.
  10. Insurance Policies: Life, health, and property insurance details.
  11. Other Financial Documents: Investment portfolios, shares, and bonds.

The required documents will depend on the unique circumstances of each case.

Consequences of Non-Disclosure

Failing to comply with the Duty of Disclosure can lead to serious legal consequences:

  • The court may draw adverse inferences, assuming undisclosed information is unfavorable.
  • The non-disclosing party may be ordered to pay the legal costs of the other party.

These penalties highlight the importance of providing accurate and complete information.

If you are unsure about what documents to disclose or seek to have disclosed, obtaining legal advice is essential for navigating this process effectively.