Duty of Disclosure in Family Law

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August 10, 2020

Matthew Wassylko

Lawyer

Civil Litigation

Contracts

The parties to a Family Law case are required to make a genuine effort to resolve the dispute before a hearing or trial. This can be by participation in dispute resolution, such as negotiation, conciliation, arbitration and counselling, exploring options for settlement by correspondence and complying, as far as practicable, with the duty of disclosure.

We encourage early and full disclosure in appropriate cases by the exchange of information and documents, but if a matter proceeds to the court, whether the matter relates to parenting of minor children or settling your property/financial affairs, there is an ongoing and continuing duty of full and frank disclosure at all stages during the pre-action negotiations. Early and full and frank disclosure may provide you with a process to help you avoid legal action by reaching a settlement of the dispute before starting a case.

 

"Most people spend more time and

energy going around problems than in trying to solve them"

– Henry Ford

Whether you are initiating an application or responding to an application, you are required to affirm or swear an affidavit that you are aware that by law you have obligation to make full and frank disclosure to the court and the other party and that the information is true to the best of your knowledge and belief and any estimates are given in good faith.

 

In the event there is no dispute, if you are preparing a Financial Agreement to settle your property affairs, you must disclose all the joint and personal assets and liabilities, no matter whether they are in dispute or not, as non-disclosure could be grounds to invalidate the agreement.

 

Beach of your duty of disclosure

The failure to disclose or providing a false undertaking as to disclosure, the court has the discretion to impose one or more of the following:

• an order to comply with disclosure by delivering a copy of a document or produce a document for inspection;

• the court making order to stay or dismiss all or part of the proceedings;

• the court may exclude the evidence that is not disclosed;

• the party in breach of their duty to pay costs to the other party; or

• being found guilty of contempt of court for non-disclosure or for breaching an undertaking as to disclosure; therefore

o the court may impose a fine; or

o a term of imprisonment.

The failure to disclose is likely to have adverse effect on the outcome of the case.

 

How is disclosure made?

The Family Law Rules 2004 very clearly lays out that you must give full and frank disclosure of all information relevant to the case, in a timely manner. You may be called upon, to discharge your duty of disclosure by disclosing your financial circumstances, disclosure and production of documents, and disclosure by answering specific questions in certain circumstances.

 

In property cases, whether you are starting, or filing a response or reply, you must provide disclosure by completing a Financial Statement with figures and estimates of your financial affairs with information that is true, to the best of your knowledge and given in good faith. If you believe that the Financial Statement will not satisfy the full and drank disclosure duty, you must also file an affidavit giving further particulars. It will be helpful to use accurate information in the Financial Statement from documents like, pay slips, superannuation statements, bank statements and tax returns, wherever possible.

 

In parenting cases, the same duty applies. There is an additional mention in the Family Law Rules to the duty of disclosing material facts and documents which may be relevant to an issue in the dispute (for example, medical reports, school reports, letters, drawings, photographs). Documents produced on the basis of an undertaking from the party receiving the documents that the documents will be used for the purpose of the case only.

You may be required to provide these documents that is or has been in your possession, or under your control and is relevant to an issue in the case and you have relied on in your Financial Statement. These documents should only be used for the purpose of the case in which they are provided and must not otherwise be disclosed or their contents to any other person without the court’s permission.

If you are asked to produce document for the purpose of disclosure of a document, this includes searching for, arranging, copying and providing the document, if necessary.

 

Duty of disclosure out of Court - Financial Agreements

If you have settled your property affairs without the need to go to court, full and frank disclosure is still an important consideration. As per section 90K and 90UM of the Family Law Act, a court may make an order setting aside a financial agreement if there was non-disclosure of a material matter, because they can determine that the agreement was obtained by fraud.

 

Third party in property matters

The duty does not apply to a third party to a property case who is not a party to the marriage or de facto relationship to which the application relates, except to the extent that the party’s financial circumstances are relevant to the issues in dispute. Therefore, if you do not disclose your wage from your employer, or provide evidence of your wage, your employer can be compelled by the court to provide documents or answer specific questions to obtain that relevant information. You can request an employer to give particulars about the employer’s indebtedness to employee, the employee’s present rate of earnings, or of all the earnings of the employee that became payable during a specified period or the employee’s conditions of employment.

 

For advice

Please contact Malkin Lawyers for further information or a confidential discussion regarding any family law dispute you may need advice with

 

 

 

 

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