Disclosure requires parties to a family law dispute to provide to each other all information relevant to their case. This includes information recorded in paper documents or stored by other means such as computer storage devices and also includes documents that the other party may not know about.
The general duty of disclosure applies to all relevant documents and information, not just material that could be evidence. There is an ongoing duty to continually update disclosure if and when new information becomes available.
The list of material to be disclosed in a financial case is set out in Family Law Rule 13.04 and Federal Circuit Court Rule 24.03. The list, which is not exhaustive, refers to:
- Earnings and other financial resources;
- Interest in property;
- Income earned or property held by a legal entity (such as a company or business) owned or controlled by a party;
- Trusts in which a party has a significant role;
- Sale or disposal of property, or use of funds, since separation and 12 months before separation; and
- Debts and continuing liabilities.
There is a specific Federal Circuit Court Rule 24.05 that provides a respondent to an application for maintenance only must bring to the Court on the first Court date the following documents:
- A copy of the respondent’s taxation returns for the most recent financial year;
- A copy of the respondent’s taxation assessment for the most recent financial year;
- Copies of the respondent’s bank records for the 12 months immediately before the date when the application was filed;
- The respondent’s most recent pay slip;
- If the respondent has an Australian Business Number, copies of the last 4 Business Activity Statements lodged; and
- Any documents in the respondent’s possession, custody or control that may assist the Court in determining the income, needs and financial resources of the respondent.
The Family Court has held that whether non-disclosure is willful or accidental is beside the point. The duty to disclose is absolute. Where the Court is satisfied that the whole truth has not come out, it might readily conclude that the asset pool is greater than demonstrated. In those circumstances, it may be appropriate to err on the side of generosity to the party who might be otherwise seen to be disadvantaged by the lack of complete candour.
The team at Swan Family Lawyers can help you ensure you comply with your disclosure obligations.