By Gianna Huesch
What is ‘full and frank disclosure’ when it comes to parenting or financial matters in family law? The legal obligation of duty of disclosure is designed to satisfy all parties and the court that all relevant information and true values have been disclosed to all parties and that no-one is hiding assets or income or minimising their financial situation in an attempt to gain an advantage in the proceedings.
You and the other party in your matter are obliged to provide the court and each other all relevant information to your case, even information or documents that the other party might not know about. When your circumstances change or new information is created or obtained, you have the duty to update the parties.
It’s an ongoing duty, meaning it begins before the first court event during the pre-action procedures and continues until your case is finalised.
Which documents need to be disclosed?
In parenting cases, full and frank disclosure means providing all information relevant to a parenting case and while this is case-specific, it may include such information as medical reports relating to the child or parent, school reports, photos, diaries, even letters and drawings by the child if relevant to an issue in dispute. Where financial discussions relate to children, receipts must be provided for expenses like school fees, childcare fees, healthcare expenses, music, sporting and other activities.
If you have obtained an expert’s report in your parenting case, you need to give a copy to the other party and if an Independent Children’s Lawyer has been appointed, to them as well.
In relation to financial matters, full and frank disclosure means providing all information regarding income and other sources of earnings, property and other asserts, family trusts, companies and other structure. Any property disposal (whether by sale, transfer, assignment or gift) made in the year before separation or since final separation must also be disclosed. Typically a Financial Statement is filed in Court which meets the duty of disclosure but in some cases affidavits are required to provide further particulars.
What are the consequences of non-compliance?
Particularly in higher value settlements, unscrupulous parties have been known to hide assets offshore in foreign bank accounts or in webs of companies or family trusts, or to ‘hide behind a corporate veil’ or give away assets to family members or new partners, and so on.
If you suspect non-disclosure by your ex-partner, you may wish to hire experts such as forensic accountants to attempt to track down hidden or disposed assets.
If a party doesn’t comply with the duty of disclosure or lies or files a false undertaking and this is then discovered, courts have the discretion to do a number of things, including refusing to allow information to be used as evidence, assigning a value to the interest in a property in order to determine the net marital asset pool, ordering costs against a party, dismissing a case entirely or part of it, even fining or imprisoning a party who is found guilty of contempt of court for their failure to disclose documents or for breaching their undertaking to provide disclosure.
The courts take non-disclosure very seriously and as it is a very complex area of the law, it’s important you obtain legal advice to fully understand your obligations.
You can view a copy of the family court’s brochure “Duty of Disclosure” here:
And you can view the Family Law Rules 2004 here: http://www.austlii.edu.au/au/legis/cth/consol_reg/flr2004163/
Do you have any concerns that your ex-partner is hiding assets or otherwise not complying with their disclosure obligations? Please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for advice on your best course of action.
Please note our blogs are not legal advice. For information on how to obtain the correct advice, please contact Alliance.
