Duty of Disclosure

Parties to a family law dispute are required to make full and frank disclosure about their financial affairs. The duty of disclosure begins during Pre-Action Procedures and continues until the case is finalised. Parties are required to update their financial disclosure if there are any changes to their circumstances.

Why is Documents Disclosure Important?

The duty of disclosure is the cornerstone to a fair and just legal process.

Disclosure has many benefits, including:

• It promotes fairness by leveling the playing field between the parties, meaning one party cannot take an unfair advantage over the other. It also ensures that parties have all the necessary information to effectively manage and present their case;
• It facilitates negotiation and settlement as parties will reach agreements based on accurate information, thus minimising any potential disputes and legal challenges in the future; and
• It means the judicial officer has complete and accurate information ensuing an informed, fair, and just outcome.

Obligations and Responsibilities

Parties are required to make full and frank disclosure of all documents relevant to the issues in dispute even if it is unfavourable or detrimental to their case. In order to fulfill this obligation, parties must complete a Financial Statement outlining their financial position.

The Financial Statement must be supported by all material information relevant to the proceedings, including:

1. Property – legal (title), equitable and rental accommodation;
2. Income – current contract of employment, last 6 payslips, income tax returns for past 3 years, government benefits, impairment benefits and particulars of any amounts owed to the parties (e.g. long service leave);
3. Bank statements – whether held solely or jointly including mortgages and credit cards for the period of 12 month before the separation. Other documents may include PayPal statements, details of international money transfers, personal finance statements (e.g. hire purchase agreements), statements from online betting account for the last 6 months, and a list of liabilities in the parties’ names;
4. Motor vehicles – registration, insurance documents and Redbook valuations;
5. Superannuation – statement showing entitlements at or about the time of separation and current entitlements;
6. Contribution
   a. At cohabitation – bank statements and shareholding statements;
   b. During the relationship – documents evidencing gifts, inheritances, redundancy payments and Tattslotto winnings;
   c. Since separation – documents evidencing major financial dealing or sale (over $5,000) and documents evidencing other contributions to increase or decrease property pool such as bonuses and/or liabilities;
7. Insurances – copies of insurance policies for each property, motor vehicle, caravan, trailer, life insurance or income protection;
8. Companies, businesses, and trusts – details of shareholdings in public companies including number of shares and current value, financial statements for the past 3 financial years, last 4 business activity statements, most recent annual return, and a trust deed and/or partnership agreement (if applicable);
9. Self-managed superfund – a trust deed, last 3 financial statements, a statement showing the value of superannuation interest and any other documents to work out its value;
10. Other documents – any Interventions Orders including applications, medical reports relating to either party diagnosed with health issues, relevant photos (for example, injuries, damage to property), any administrative assessment of child support by Services Australia, details of any interest in a deceased estate, details of any other financial resource including entitlements to inheritance, and any other document relevant to an issue in dispute.

Legal Framework and Document Disclosure

The court plays a vital role in overseeing the duty of disclosure. If a party fails to provide full and proper disclosure of their financial affairs then the court can:

• Compel the party to provide disclosure;
• Impose penalties on the party for non-compliance; and/or
  Draw negative inferences against the party which may be detrimental to their case.
• The court’s primary objective is to ensure a fair and equitable resolution based on all relevant information available to the parties.

Confidentiality and Privacy

The duty of disclosure involves the release of sensitive personal information. Pearsons Lawyers protects your information by taking appropriate measures to ensure it does not fall into the wrong hands. At Pearsons Lawyers we have implemented strict confidentiality protocols, and we use secure digital platforms, which limits access to sensitive documents.

The courts also protect parties’ sensitive personal information through:

• Controlled access measures, which allows confidential information to be accessed only by authorised personnel;
• Protective orders which prevent the disclosure of certain information from being disclosed to the public or people who do not have a legitimate interest in the case; and
• Redaction and anonymisation which allows personal information that is not relevant to the proceedings to be redacted or anonymised.

To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.