Duty of Disclosure – What does this even mean?
The duty of disclosure is an obligation that each party make full and frank disclosure of his or her financial situation to the other party and to the Court.
Full and frank disclosure is defined in Rule 13.04 of the Family Law Rules and includes disclosure of information such as:
- All sources of earnings.
- Interest in property or financial resources including interests that are owned by a legal entity fully or partially owned or controlled by a party, trusts or other structures.
- All liabilities.
- Any disposal of assets in the twelve months immediately before or since separation.
The duty of disclosure is ongoing. It arises immediately and continues until final orders are made. This means should there be a change in financial circumstances during proceedings or a document is discovered, you have to disclosure it.
The Importance of Disclosure
The duty to disclosure in family property settlement cases is essential to enabling lawyers to enter meaningful settlement negotiations and resolve matters. Importantly, it ensures that the court’s decision is fair to all parties.
Failure to Disclose – Be prepared to face Consequences
Financial disclosure is an obligation that each party must fulfil.
The consequences of a failure to disclose relevant information and documents are most serious and the court may:
- refuse to allow you to use that information or document as evidence in your case; or
- stay or dismiss all or part of your case; or
- order costs against you; or
- fine you or imprison if you are found guilty of contempt of court for not disclosing the document.
In a recent case of Lindner & Lindner  FamCA 498, cost orders were made against the husband. In this case, the Court found the husband’s failure to make full disclosure, which was in his control, incurred the wife unnecessary costs. This resulted in the wife having to hunt out information, issue subpoenas and engage forensic accountants to reconstruct and determine the husband’s true financial situation. Proceedings were also adjourned on a number of occasions because of the husband’s failure to comply with orders. The Court found that all this had greatly increased the wife’s costs and went on to order that the husband pay $50,000 as a contribution towards the wife’s legal costs.
In the case of Weir & Weir  FamCA 69 the Full Court stated the following as to a finding of deliberate non-disclosure:
“ … once it has been established that there has been a deliberate non-disclosure … then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.”
To find out more about your obligation regarding disclosure and the types of documents you need to disclose, please feel free to contact one of our solicitors on +61 3 8393 0144.