Why Family Law duty of disclosure is now a very serious business
Parties involved in Family Law proceedings have a new reason to think very carefully about what information they must disclose to the other party, and when.
From 1 September 2021 there are much harsher penalties for parties who fail to meet the Court standard for disclosing “information relevant to an issue in the case”. Under the Federal Circuit and Family Court of Australia Rules 2021 (FCFCOA), the penalties include a fine or a prison sentence, or both.
The well-established duty of ‘full and frank disclosure’ has long applied to parties involved in parenting proceedings as well as property and financial proceedings. Although the duty of disclosure is often a reference to a party’s banking records and the like, the material required to be disclosed will depend on the nature of the case, but typically will include:
- in property and financial cases: a party’s earnings, income, interest in property, interest in a business or trust, and financial resources.
- in parenting cases: a party’s criminal record, documents from other Court proceedings, medical reports and children’s school reports.
The new FCFCOA rules take matters further because now every party to Family Law proceedings is required to make an undertaking in writing to the Court about their duty of disclosure. This undertaking must state that the party has complied with their duty of disclosure, and that they acknowledge that breach of the undertaking may be a contempt of Court.
The Court can penalise a party for breach of an undertaking about disclosure by:
- refusing to allow certain information to be included in the case;
- ordering that the defaulting party pays another party’s costs;
- issuing a fine or even a prison sentence if a party is found guilty of contempt of Court;
- delaying the proceedings;
- dismissing the case altogether.
It is well worth noting that a party’s duty of disclosure is ongoing until the case is finalised. Parties must continue to provide information as circumstances change, or as more documents are created or come into a party’s possession, power or control.
Given the very serious penalties involved, it is advisable that anyone who may become a party to proceedings in the FCFCOA should seek legal advice as early as possible.