Why do I have to give them that? The importance of full and frank disclosure in a family law context.

August 24, 2023

Disclosure is the process of providing all information and documents to the other party that are relevant to the case and which are in your possession or which you have the authority or the ability to obtain.

So what does this really mean in a family law context following your separation from your partner?

What is disclosure?

Disclosure is the process of providing all information and documents to the other party that are relevant to the case and which are in your possession or which you have the authority or the ability to obtain.

In property matters all material relating to your financial position need to be disclosed. This information includes things such as bank statements, superannuation statements, pay slips and financial statements for entities which you control.

In parenting matters relevant information that needs to be disclosed might include medical reports about the child or parent, school reports, letters, photographs or a diary.

What is your duty?

You have a duty to provide full and frank disclosure to the other party. This means:

• you must provide information in a timely manner;
• if new information comes to light or circumstances change you must provide updated disclosure;
• you cannot pick and choose what information you provide, i.e. you even have to supply information that you may feel disadvantages you;
• it is not limited to information requested by the other party but you must proactively provide any information you know is relevant. This is because the other party would have asked for it if they had have known or suspected it existed.

Restrictions on the use of disclosure

Documents and information disclosed by a party or revealed in the course of the proceedings cannot be used for any other purpose.

This means you are not permitted to use documents disclosed by your former spouse in another case or forum (and vice versa).

There are some exceptions – if the documents are put into evidence in Court then they can be used in other Courts, and the Court can grant permission to use the documents if there are special circumstances.

The consequences of not providing disclosure

The possible consequences of not providing disclosure include:

• the Court making an adverse finding against that party in the case;
• a cost penalty (that is, you may be required to pay part of the legal costs of your ex-spouse);
• the lawyer’s inability to act for the non-disclosing party – if a solicitor is aware that their client has a document/information but refuses to disclose it, the solicitor is unable to continue to represent the client (but is not permitted to disclose the document either);
• the Court refusing to allow a party to rely on a document at trial if it had not been previously disclosed to the other parties;
• the Court dismissing all, or part of, a case;
• contempt of Court – which can be punished by fine or imprisonment; and
• if the non-disclosure is revealed after the case or negotiations are finished – the Court can set aside the final order and re-open the case.

If you have questions about these changes or other family law matters please contact a member of our family law team.