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.