The duty of disclosure in family law: What it means and what to disclose

In family law matters, each party has a duty to provide full and frank, ongoing disclosure to the other party. 

By Hollie Brown, Legal Administrative Assistant at Australian Family Lawyers, Perth.

So what is full and frank disclosure?

Full and frank disclosure also referred to as duty of disclosure, means it is your duty to provide the other party in your case with a list of documents and copies of the documents which are relevant to the issues in the case.

If your situation changes or more documents are created or come into your possession, you need to provide these documents to your solicitor, who will disclose them to the other party. Otherwise, if you are self-represented, you will need to provide these to the other party.

Full and frank disclosure means that each party has a responsibility to disclose documents and information that would affect the outcome and fairness of the case. Even if a document on its face may not assist you or is contrary to a belief one or other of the parties held, it is helpful in clarifying or resolving an issue that may be in dispute and could lead to a new approach or line of enquiry.

The term duty of disclosure is most often applied to financial cases but is also an important part of parenting cases.

When to provide and receive disclosure

Ideally, the documents should be collated and disclosed at the outset before the pre-action procedures and/or negotiations when each party makes an offer to settle to the other party before you make an application to the Court. The duty of disclosure continues until your case is finalised either in or out of Court.

It is always best to disclose as much information as you can:

• when you are making an offer to the party; or
• when you are asking your lawyer to consider, assess and advise upon your matter, how best to proceed and realistic options and outcomes based on the particular circumstances of your case.

What you have the duty to disclose

The Family Law Rules sets out the types of documents each party is required to disclose. You will be required to provide the following as a bare minimum for your solicitor to evaluate your financial situation properly, or if you are self-represented for you to provide to the other party via electronic means or paper.

The items to disclose will vary depending on your individual factual circumstances and the specific particulars of your case.

However, any or all of the following can be disclosed, namely:

• Certificate of title/s you have for those properties registered solely or jointly in your name and/or the other party’s name or in respect of which you or the other party may have an interest as an officeholder of a company or beneficiary of a trust;
• Any Settlement Statements regarding the sale or purchase of properties before, during or after cohabitation;
• Any valuations or appraisals for properties one or more of the parties have an interest in;
• Bank statements on all bank accounts (including savings, mortgage, loan, and credit cards) in your name or any account you have an interest in or access to;
• Any Redbook or industry valuations for cars, trailers, boats, or caravans in your name;
• Your employment contract and at least your last 3 payslips;
• Tax Returns and Notice of Assessments for the last three years;
• Superannuation statements for at least the last 3 years and a screenshot of the current balance;
• Documents regarding any business partnership, company or trust in which you may have an interest;
• Any other relevant documents.

For further information about the duty of disclosure, review the official Family Court Duty of Disclosure brochure.

For further information and legal advice about full and frank disclosure in family law, request a call back from our friendly team via the form below.