Sometimes you simply must tell the truth, the whole truth and nothing but the truth. A lie by omission – something you do not mention when you should – is still a lie. Australian law dictates that people seeking resolution of certain issues related to separation or divorce must make certain information available to each other, and to the court. This is called the duty of disclosure.
When it applies
As stipulated in Family Law Rules 2004 (“the Rules”), the duty of disclosure applies to you when you are seeking resolution of financial matters in a separation or divorce. This means you must make certain information available to your former spouse or partner in property settlement, spousal maintenance, and similar cases.
You and your former spouse or partner must also exchange certain information when seeking resolution of parenting matters. This may include but is not limited to: living arrangements, visitation, and child support.
The timing and extent of disclosures
Legally, you must make “full and frank disclosure” of all information that has direct bearing on any point of contention in your case. In other words, you must give any pertinent material that you actually have, or that you have access to or authority over. And you must do so before the case goes to court.
It is best to be aware that both parties have this duty, and that it is ongoing. This means you must report any relevant changes – such as a job change or loss of employment – to the other person, and they must make similar information available to you. Your respective obligations to exchange pertinent information will not end until you reach an agreement, or the court issues a final order.
Finally, it is important to note that there are no legal stipulations about the way in which this material should be given, so it does not matter if you share electronic or paper records. The information you must give will also vary based on case type and your situation.
Your duty of disclosure in financial cases
In these cases, both of you must give comprehensive information about your respective financial circumstances. This usually means you must supply any or all the following:
- Documents reflecting your regular earnings;
- bank statements reflecting deposits and withdrawals from checking accounts, savings accounts and so on;
- tax documents;
- superannuation statements;
- material documenting the valuation and appraisals of assets;
- material about financial resources other than income, along with supporting documentation;
- information about interests in any company and/or trust, along with supporting documentation;
- information about any assets disposed of prior to and since separation.
Please bear in mind that this is not an exhaustive list, and you may need to give different and/or more material given that each case is unique.
Your duty of disclosure in parenting cases
In disputes over parenting matters, both of you must give information the court needs to make decisions about the care and living arrangements for a child. Specifically, you must supply any material relevant to the child’s welfare. As in financial cases, however, the type of information will depend on your unique circumstances.
The following is generally subject to disclosure in parenting cases:
- The child’s (or children’s) school reports;
- relevant assessments about the child/children and/or parents issued by doctors, psychiatrists, psychologists, social workers and so on;
- information about the amount of time the parent spends at work;
- information about the supervision of the child/children when they are not with you;
- information about any issues that affect each parent’s ability to care for the child, such as substance abuse, mental illness, or chronic medical conditions;
- official documents about any family violence, including intervention orders, police reports or relevant statutory body reports.
Penalties for noncompliance and dishonesty
Rule 13.01 of Family Law Rules allows the court to disregard any material that has not been fully and properly disclosed in finance cases. If you do not fulfill your duty of disclosure, the Court may also be reprimand you for contempt of court.
At its discretion, the court may also issue a costs order against you for failure to meet this obligation fully and truthfully. If it does, you will have to pay not only your own legal costs but also those incurred by your former spouse or partner. In the most drastic cases, you may be fined or incarcerated.
If either one of you finds out that the other failed to fulfill the duty of disclosure prior to the issuance of family law final orders, the aggrieved person can ask the court to change the order or set it aside. The court may also vacate or amend a final family law order if either of you have not fulfilled your duty of disclosure before it is issued.
As we have noted, each case is different. If you are going through separation and divorce, and you have questions about the type of information you have to disclose, contact us today.