Duty of Disclosure
The Family Law Act 1975 requires parties to maintain an ongoing duty of full and frank disclosure to each other and to the court. The duty exists up until the court hands down final orders or the parties have reached an agreement which is legally binding. Therefore, you are required to provide disclosure of any change in circumstances in your life, even if the change occurred after separation.
What Is Your Duty Of Disclosure?
The duty of disclosure is your obligation under the Act to provide, both to the other party and the court, information about your personal circumstances as well as copies of all documents relevant to the proceedings.
In financial matters, this obligation applies whether the asset, liability, or financial resource is in your sole name, the joint name of you and your former partner, the joint name of either you or your former partner and another person, held by or on behalf of a party to the relationship by another person, held pursuant to a family trust or held in a separate legal entity such as a company to which you or your partner has an interest in. You should also disclose information which demonstrates your future needs, for example evidence of any benefit you receive from the Government as a result of the breakdown of the relationship and your most recent payslips from your employer. You should disclose assets or liabilities which you hold in Queensland, Australia or overseas.
This obligation of disclosure also extends to a duty to advise of any property you have disposed of. For example if you sell a motor vehicle after separation, you will need to provide evidence to the other party and the court of this disposal (i.e. sale, transfer, assignment or gift) the value, and what you did with the funds.
In some parenting matters it may be necessary to disclose information such as medical or school reports.
It is also important to remember that your duty of disclosure is ongoing. For example, if you receive a promotion and/or pay rise from your employer after separating, you will be required to disclose this to the other party and (where applicable) the court.
What Are The Consequences Of Non-Compliance?
If you did not comply with your duty to disclose, the court may:
- refuse to grant you permission to rely upon information which has not previously been disclosed;
- dismiss or stay all or part of your application;
- order costs against you in favour of your partner;
- order that you pay a fine or find you guilty of contempt of court; or
- assign a value to an asset or liability to determine the net pool of assets in the relationship (which could result in an inaccurate value for your asset/liability).
Most importantly, where a party has been found to have breached their duty of disclosure, it may result in a judge using their discretion adversely, whether consciously or subconsciously, against that respective party. After all, your family law matter is being determined by a human being who is attempting to make orders which in their view is “just and equitable”.
Finally, remember that if both parties comply with their duty of disclosure it is more likely that the dispute will resolve quicker and without costly and expensive litigation.
To discuss your family law matters with one of our solicitors, please contact Armstrong Legal.