Duty of Disclosure
Under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, each party to a family law proceeding has a duty to the court and to the other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner. This duty applied from the start of the proceeding and continue until the proceeding is finalised. Parties are also expected to comply with this duty during the pre‑action procedures such as negotiations as well.
For financial matters, you must make a full and frank disclosure of your financial circumstances, including the following:
Your earnings, and your income.
Any interest in property – including any interest in a trust, corporation (other than a public company), partnership, or other commercial activity.
Any interest in a superannuation fund.
Any property that you may have sold, transferred, or gifted, unless disposed of with your former partner’s consent.
Any resources from which you are benefiting financially.
Any liability – including any personal guarantee or loan.
To provide such information, you must serve the other party with the following documents before the first court date, provided the documents are in your possession or under your control:
A copy of your 3 most recent taxation returns and assessments.
Your bank records for the 12 months ending on the date when the maintenance application was filed.
Any document about any superannuation information
if you have an Australian Business Number—a copy of the last 4 business activity statements lodged for any corporation which you own or control:
· a copy of the 3 most recent financial statements and the last 4 business activity statements lodged by any of your partnership, trust or company
Any other document relevant to determining your income, expenses, assets, liabilities and financial resources.
What happens if I don’t disclose?
If you fail to disclose or file an undertaking or file a false undertaking about your financial matters, the Court may:
refuse to later allow you to use that information in your benefit
stay or dismiss all or part of your case
order costs against you
fine you or imprison you on being found guilty of contempt of court for not or disclosing the document or for breaching your undertaking.
Moreover, it is also possible that the court may reduce the award that you may have been entitled to if you had made complete disclosure. For example, in the case of Hillman & Hillman [2020] FamCA 630, the court found that the husband had failed to disclose the private sale of three vehicles that were owned by the husband’s company. Although, Baumann J was initially prepared to award an adjustment of 15% to 20% to the husband, he/she reduced it to 12.5% as she found the husband’s explanation in relation to the sale of the vehicles unsatisfactory and concluded that the husband had retention of funds from the sale of the three vehicles.
