Duty of Disclosure and Hidden Assets
Each party to a family law proceeding has a duty to give full and frank disclosure of all information relevant to the case, in a timely manner. It is an ongoing duty throughout the proceeding, and as documents are created and come into your possession, power, or control, they should be disclosed to the other party. Disclosure cannot be used for any other purpose or disclosed to any other person outside of the family law proceedings without permission from the Court.
This duty applies from the commencement of negotiations to the resolution of the dispute, and applies to all proceedings.
Financial Matters
Financial proceedings are also subject to specific rules, mandating disclosure of your direct and indirect financial circumstances. A Financial Statement must be filed, and may be accompanied by an affidavit providing further details if needed.
Examples of documents relevant to your financial circumstances may include;
- A copy of your three most recent tax returns and notices of assessment;
- A copy of your three most recent payslips;
A copy of your bank statements and records for the twelve months prior, or since the date of separation; - A copy of your most recent superannuation statement or balance, or if you are member to a Self Managed Superannuation Fund you should provide a copy of the trust deed and three most recent financial statements;
- A market appraisal of any property or asset in which you hold an interest;
- A copy of any other documents relating to your assets, liabilities, income, or expenses;
- If you own or control a business, trust, or partnership you should provide;
- A copy of any business activity statements for the twelve months prior;
- A copy of the three most recent annual financial statements;
- A copy of the most recent tax return;
- A copy of the Constitution/Trust Deed/Partnership
- Agreement and any amendments.
- Any other document or information relevant to your financial position and the proceedings.
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Parenting Matters
Parenting proceedings are subject to more case-specific duties, as relevant information will vary. Examples of other disclosable documents may be medical reports, school reports, photographs, or items drawn or written by the child/children.
Undertakings
In both financial and parenting matters, you are required to provide an undertaking to the Court ahead of the first Court date, declaring that you are aware of your duty to the Court and other parties to give full and frank disclosure of all relevant information in a timely manner, and that you have read parts 6.1 and 6.2 of the Federal Circuit and Family Court Rules NSW (2021).
You are required to undertake that you have complied with this duty to the best of your knowledge and ability, and that you acknowledge that a breach of this duty may be considered contempt of court.
Penalties
If you fail to comply with your duty of disclosure, fail to file the undertaking, or file a false or misleading undertaking, you may be subject to penalties. The Court may stay or dismiss all or part of your case, order costs against you, fine or imprison you for contempt of court, or refuse the use of the information or document as evidence in your proceedings.
Hidden Assets or Failures to Disclose
If you are hiding assets, or not providing your full and frank disclosure, you may be subject to penalties or negative consequences, like those described above.
If you suspect that another party is hiding assets or not providing their full disclosure, you can undertake an investigation. You must be careful to ensure that any investigation is not a ‘fishing expedition’, as this is not considered to be a positive or proper use of the Court process. You must ensure to make reasonable enquiries based on reasonable suspicion that information or assets are being concealed to your detriment.
An investigation may involve;
- Property, company or security searches through land registries, ASIC, or PPSR;
- If proceedings have commenced, you may issue;
Subpoenas; - Notices to admit facts, answer specific questions, or produce documents; or,
- If proceedings have commenced, you may issue;
- Engaging forensic accountants or private investigators.
Do you need to help understanding or complying with your obligations, or ensuring that someone else complies with theirs?
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