The Duty of Disclosure

28th Jun 2015

Pre-action Disclosure

Before a matter can be commenced in the Family Court, the Family Law Rules require each party (with limited exceptions) to have made a genuine effort to resolve the dispute by adhering to certain procedures (Rule 1.05).

The pre-action procedures required by the Rules are per Schedule 1:-

  1. participating in dispute resolution, such as negotiation, conciliation, arbitration and counselling;
  2. exchanging a notice of intention to claim and exploring options for settlement by correspondence; and
  3. complying, as far as practicable, with the duty of disclosure.

This article will focus primarily on the duty of disclosure.

What is the Duty of Disclosure?

Parties to a case have a duty to make full and frank disclosure of all information relevant to the issues in dispute in a timely manner (Rule 13.01). The duty is ongoing, meaning that documents that come into existence after the initial provision of disclosure need to be disclosed by way of updates. Failure to provide adequate and updated disclosure in a timely manner can have dire consequences to your case, such as costs orders being made against you.

What Documents need to be disclosed in a Property Settlement Case?

Rule 12.02 sets out a list of documents that must be exchanged between parties before the first court date. In accordance with that Rule, parties should provide:-

  1. a copy of the party’s 3 most recent taxation returns and assessments;
  2. documents about any superannuation interest of the party, including:
    1. a completed superannuation information form for the superannuation interest;
    2. if the party is a member of a self-managed superannuation fund–a copy of the trust deed and the 3 most recent financial statements for the fund; and
    3. the value of the superannuation interest, including the basis on which the value has been worked out and any documents working out the value;
  3. for a corporation in relation to which a party has a duty of disclosure under Rule 13.04:
    1. a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;
    2. a copy of the corporation’s most recent annual return that lists the directors and shareholders; and
    3. a copy of the corporation’s constitution and any amendments;
  4. for a trust in relation to which a party has a duty of disclosure under Rule 13.04:
    1. a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
    2. a copy of the trust deed, including any amendments;
  5. for a partnership in relation to which a party has a duty of disclosure under Rule 13.04:
    1. a copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
    2. a copy of the partnership agreement, including any amendments;
  6. for a person, corporation, trust or partnership, any business activity statements for the previous 12 months; and
  7. unless the value is agreed, a market appraisal of the value of any item of property in which a party has an interest.

This list is just a starting point and is by no means exhaustive. Additional disclosure may need to be provided by either or both parties in relation to specific matters that become apparent as your case progresses.

Rule 13.04 and the Form 13 Financial Statement

Rule 13.04 sets out a list of disclosure in relation to your financial circumstances that ought to be provided in accordance with the duty of full and frank disclosure. The rule requires that parties provide disclosure of various matters in relation to their income, assets and liabilities.

When a party files documents to commence an application in the Family Court, they will be required to file and serve on the other party what is known as a Form 13 Financial Statement. The responding party will also be required to file and serve a Form 13 in due course. This document includes information targeted at meeting the requirements of Rule 13.04 on a basic level, in time for your first court event. Documents relevant to the information contained in the Form 13 may be required as your matter progresses.

What Does DCH Legal Group do with my Disclosure Documents?

When you bring disclosure documents into DCH, we produce a list of your documents in accordance with the Rules. The documents are filed and stored at our offices for the duration of your matter. Documents that are irreplaceable (without difficulty) such as original certificates of title should be copied and a copy provided to us, with advice as to the whereabouts of the original that you should retain in your secure arrangements for that document.

The other party (or their lawyer) is also required to produce a list of their disclosure documents.
When the other party receives our list of disclosure documents, they may arrange a time to view the documents, or request copies of specific documents that they would like to view. Copies are then provided to the other party upon payment of our photocopying expenses. The same procedure applies for any documents on the other party’s list that we wish to view.

Documents that are provided by the other party pursuant to their duty of disclosure to you cannot be used by you for any purpose other than in the proceedings, unless leave of the court has been obtained.
After your matter, your disclosure documents are returned to you, or may be securely disposed of in accordance with your wishes.