Cards on the table approach - Duty of disclosure

What is the duty of disclosure?

In all family law proceedings, whether parenting or financial settlement, the Family Law Rules provide that each party to a proceeding has a duty to the court and to each other to give full and frank disclosure or give full and frank disclosure of all information relevant to the proceedings in a timely manner, which such duty continues until proceedings finish.

From June 2025, the duty of disclosure was strengthened further by inserting such a duty in the Family Law Act 1975.

The purpose of these provisions is to ensure that parties are open and frank with one another and that all information that could be relevant to the Court is presented to the Court in a timely manner.

While parties have this general duty to one another and to the Court, there are specific lists for each type of proceedings found in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and Family Law Act 1975.

Duty of disclosure in parenting matters

With respect to parenting matters (Rule 6.05) they are:

Documents that may contain information relevant to parenting proceedings, may include, amongst other documents:
- Criminal records of the parties; and
- Documents filed in intervention order proceedings (ADVO) concerning a party; and
- Medical reports about a child or party; and
- School reports.

Rule 7.14 of the Rules also provides that the duty of disclosure also applies to any expert report such as a report from a doctor or treating practitioner for the children or one of the parties.

Duty of disclosure in property settlement matters

The specific duty of disclosure in financial proceedings is even wider, but this is in circumstances where a balance sheet must be agreed upon. That duty provides that a party to financial proceedings must make full and frank disclosure of the parties’ financial circumstances, including the following:

Their income
Any interest in property.
Any interest in property owned by a legal entity that is partially owned or controlled by that party.
Any income that is earned by a legal entity that is fully or partially owned or controlled by a party.
Parties other financial resources.
Any trust;

i. of which the party is an appointee or trustee;
ii. of which the party, their child or spouse is an eligible beneficiary to any capital income;
iii. of which a corporation is an eligible beneficiary to capital income and the party or their child or spouse is a shareholder or director of that corporation;
iv. of which the party has any direct or indirect power or control;
v. of which the party has the direct or indirect power to remove or appoint a trustee;
vi. of which party has the power to amend the terms;
vii. of which the party has the power to disapprove a proposed amendment to the terms;
viii. over which a corporation has one of the abovementioned powers.

Any disposal of property made by the party or their legal entity that may effect, defeat or deplete a claim:

i. in the 12 months immediately before separation; or
ii. since the financial separation of the parties;

Liabilities and contingent liabilities.

Both parties are also required to provide each other with the following documents:

Their 3 most recent taxation returns;
Their 3 most recent taxation assessments;
Superannuation – either a completed superannuation form or, if a self-managed superfund, the trust deed and a copy of the three most recent financial statements for the fund.
If a party holds an Australian Business Number, a copy of the last 4 business activity statements;
If there is a partnership, a trust or a company, a copy of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.

If the application relates to maintenance, whether spousal or de facto, there is also a requirement to provide copies of the last 12 months of bank statements and the most recent payslip.

The Family Law Act also contained further provisions regarding disclosure in property matters in Section 71B (for married couples) and Section 90RI (for de facto couples). They are:

Each party to the proceedings will have a duty to the Court and to each party to give full and frank disclosure in a timely manner for all information relating to an issue in the proceedings.

Such a duty will apply from the start of the proceedings and continue until the proceedings are finalised.

Subsections 5 and 6 extend this duty even before proceedings are commenced and during “the preparation for proceedings”.

Such duty will cover all financial matters, including property orders, spousal maintenance, the setting aside of a Binding Financial Agreement or termination agreement, orders with respect to the allocation of superannuation, orders pursuant to Section 106B which involve the reversal of transactions that would defeat an existing or anticipated Family Law property settlement, proceedings in relation to a vested bankruptcy property, and child support proceedings. This extends to matters that might become the subject of proceedings under these provisions.

Such duty covers any documents that are or have been in the possession or control of either party.

Finally, the section provides that a legal practitioner or family dispute resolution practitioner/mediator who is engaged by a party in a marriage or de facto relationship must provide that party with information about the duty of disclosure, the consequence of not complying with that duty, and encourage the party to take all reasonable steps to comply with the duty of disclosure.

Non-Disclosure

The above provisions are taken very seriously by the Court. In financial proceedings, there is substantial case law that provides that if a party does not make full and frank disclosure and financial proceedings, the Court should not be unduly cautious about making findings in favour of the innocent party. Accordingly, the court can be quite creative about what they do when a party fails to disclose their financial circumstances.

For example, in the marriage of Weir [1992] 16 FamLR 154, it was found that a husband had misappropriated cash sales from the business, but the court was unable to make any finding about what sum of money that was actually taken. Accordingly, a round figure of $50,000 was ordered to be paid from the husband to the wife.

In the case of Chang & Su [2002] FamCA 156, a judge was faced with a husband who had previously had assets of $4.55 million, but by the time of the trial somehow the husband now owed $1.84 million and only had assets of $1.22 million. The trial judge ended up making orders that actually exceeded the total extent of the property pool because the other party’s non-disclosure made it impossible to ascertain the actual property pool. The husband expectedly appealed, but the court dismissed his appeal.

The duty of disclosure is an important duty that parties must be careful not to breach in parenting and property matters. If you are experiencing a family law dispute, please contact our office on (02) 4944 3322 to make an appointment with our Accredited Specialist in Family Law, Hayden Carr.