Blog post by Kate Chisholm
The Family Law Rules state that each party to a case in the Family Court has a duty to the court and to each other to give full and frank disclosure of all information relevant to the case in a timely manner. It is important to understand this duty from the outset, as failure to comply could result in delays to your case, additional costs, and even punishment in the form of a fine or imprisonment for contempt of court.
A party starting or filing a response to a financial case must file a Financial Statement. If the Financial Statement does not adequately cover all of your financial circumstances, an affidavit will also need to be filed providing these extra details.
All financial resources must be declared. You may be required to provide such documents as wage slips, bank statements, tax returns, superannuation statements, invoices, receipts and title deeds as evidence of your direct or indirect income and interests.
Case law maintains that if a party refuses to provide full disclosure, making it difficult for the Court to correctly identify the asset pool, the Court will often divide the assets in favour of the other party. It is therefore vital that disclosure in financial cases is upfront and honest.
Please also bear in mind that information on any property disposal that has occurred in the 12 months immediately prior to your separation or since your separation will need to be declared as this may affect, defeat or deplete a claim.
The duty of disclosure also applies as rigorously to parenting cases. There can be confusion as to the kind of documentation that will be relevant in parenting cases, and often will be specific to your particular matter. Documents can include medical reports, school reports, photographs, your child’s drawings and diaries, letters, emails and evidence of their internet presence.
In all cases you must sign an undertaking confirming that you understand your obligations to disclose all relevant information, that any breach of your duty may result in contempt of court, and that you have complied with your duty of disclosure. This undertaking must be filed with the court no later than 28 days prior to appearing before a judge.
If you believe that the other party has not disclosed a particular document, you may apply to the Court for an order that compels the other party to produce that document.
As your case proceeds and as circumstances change, you will be required to provide updated information and documentation. The duty of disclosure ends only when your matter has been finalised.
The duty of disclosure can be a complex part of your family law matter. It is important to seek advice from a lawyer so that you are aware of your obligations – contact Kate Chisholm of Culshaw Miller Divorce & Family Lawyers for more information.