Family Court of Australia

Obligation to disclose documents

4.51 In the Family Court the duty of disclosure is ‘absolute’,[64] relating to the nature of the Court’s jurisdiction. As noted in Briese and Briese, ‘the need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance’.[65] The Family Law Rules 2004 (Cth) impose a general duty of disclosure on a party to a family law dispute, whether financial or parenting, independently of any action of the Family Court or another party.

4.52 The duty is imposed from the start of pre-action procedures for a case and runs until the case is finalised.[66] These pre-action procedures require parties to attempt to resolve the dispute out of court, and, in financial cases, involve an exchange by the parties of details of assets, income and liabilities, and disclosure using a list of documents.[67] A party must continue to make disclosures as circumstances change and as documents are created or come into the party’s possession or control.[68]

4.53 The main purpose of the Family Law Rules is to facilitate the prompt, affordable administration of justice.[69] To this end, the rules direct the Court to identify key issues early in the case, ensure parties comply with the Rules, practice directions and procedural orders, and where possible, reduce the need for court attendance by relying on documents.[70] Parties are required to comply with their duty of disclosure in a timely manner.[71] A failure to provide prompt and adequate disclosure, whether in the proceeding or during pre-action procedures, may have costs ramifications.[72]

Scope of disclosure obligations

4.54 The general duty of disclosure under the Family Law Rules requires each party to a case to give full and frank disclosure in a timely manner to the Court and to the other party of all information relevant to the case.[73] The duty applies to each document that is or has been in the possession, or under the control, of the party disclosing the document and is relevant to an issue in the case.[74]

4.55 The parties to a financial case must make full and frank disclosure of their financial circumstances.[75] This involves filing and serving a financial statement with the application or response.[76] In all cases this includes disclosure of relevant documents in the parties’ possession or under their control.[77]

4.56 The parties to a property case have an additional obligation to exchange documents before the first court date and before a conciliation conference.[78] At least two days before the first court date, parties are required to exchange copies of their three most recent taxation returns, superannuation documents, statements of business activity in the last year, and a valuation of all property the value of which has not been agreed, as well as details of any corporations, partnerships or trusts in which a party has an interest.[79] If they have not already exchanged these documents before a case assessment conference, they must be given to the other party, along with any other documents ordered to be exchanged, within 28 days after the conference.[80]

4.57 The parties to a parenting case must disclose any expert reports obtained to the other party at least two days before the case starts.[81] If a report is obtained during the case, it must be disclosed within seven days.[82] Parties must also disclose any amendments or supplements to the report.[83]

4.58 A party to proceedings before the Family Court must give an undertaking to the Court stating that the party has read pts 13.1 and 13.2 of the Family Law Rules and is aware of the duty to give full and frank disclosure, and that to the best of his or her knowledge the party has complied with the duty of disclosure.[84] This undertaking must be filed at least 28 days prior to the first day before a judge.[85]

Process of disclosure

4.59 After a case has been allocated a first day before a judge, a party may request another party to provide a list of documents to which the duty of disclosure applies.[86] The list must be provided within 21 days of the request and, subject to a claim of privilege, the party must produce those documents for inspection on request by another party.[87] The Court may make an order directing disclosure of documents by electronic communication.[88]

4.60 The Rules also impose a duty on parties to produce particular documents on the first court date for a maintenance application, on the first court date for a child support application or appeal, at a conference in a property case and at trial.[89] In financial cases there are specific rules about full and frank disclosure of the party’s total direct and indirect financial circumstances.[90]

4.61 A party who breaches their disclosure obligations in the Family Court may be in contempt of court and liable to costs orders.[91] A costs order for breach of disclosure obligations would be a departure from the usual position that parties to proceedings before the Family Court bear their own costs.[92] A breach of disclosure obligations is also an offence if the party gave an undertaking in relation to disclosure that the party knew or ought to have known was false or misleading in a material particular.[93]

[64]In the Marriage of Kannis (2003) 30 Fam LR 83.

[65]Briese and Briese (1986) FLC ¶91.713.

[66]Family Law Rules 2004 (Cth) rr 13.01, 1.05, 1.08(1)(b).

[67] Ibid sch 1, cl 4(2).

[68] Family Court of Australia, Duty of Disclosure <> at 27 October 2010.

[69]Family Law Rules 2004 (Cth) r 1.04.

[70] Ibid r 1.06(c), (f), (i).

[71] Ibid r 13.01.

[72] Ibid r 117(2A)(c), sch 1, cl 1(3).

[73] Ibid r 13.01.

[74] Ibid r 13.07.

[75] Ibidr 13.04.

[76] Ibid r 13.05.

[77] Ibid r 13.07. Family Court of Australia, Duty of Disclosure <> at 27 October 2010.

[78]Family Law Rules 2004 (Cth) rr 12.02, 12.05.

[79] Ibid r 12.02.

[80] Ibid r 12.02.

[81] Ibid r 15.55(1)(a).

[82] Ibid r 15.55(1)(b).

[83] Ibid r 15.55(2).

[84] Ibid r 13.15. This does not apply to an independent children’s lawyer.

[85] Ibid r 13.16.

[86] Ibid r 13.20. This applies to all Initiating Applications (Family Law) except: an application for an order that a marriage is a nullity or a declaration as to the validity of a marriage, divorce or annulment; a maintenance application; a child support application or appeal; and an application seeking interim, procedural, ancillary or other incidental orders.

[87] Ibid, r 13.20.

[88] Ibid, r 13.24.

[89] Ibid rr 4.15, 4.26, pt 12.2 and chs 15 and 16 respectively.

[90] Ibid r 13.04.

[91]Family Law Act 1975 (Cth) ss 112AP, 117.

[92] Ibid s 117(1).

[93]Family Law Rules 2004 (Cth) r 13.15.