Part 2 – Disclosure in parenting matters
Parties involved in a family law parenting dispute have a duty to attempt to resolve their dispute before they commence Court proceedings.[1] In order to be able to negotiate between them, parties must also give full and frank disclosure of all documents and information relevant to the dispute. This is a similar duty which each party has in family law property matters.[2]
Obviously, the documents expected to be disclosed and exchanged are peculiar family law disputes about children’s matters.
Documents that may contain information relevant to a parenting proceeding [which]may include, among other documents:
(a) criminal records of a party; and
(b) documents filed in intervention order proceedings concerning a party; and
(c) medical reports about a child or party; and
(d) school reports.
Disclosure is a complex area of law, and it is important that you seek legal advice in relation to your situation.
What is the duty of disclosure?
The duty of disclosure is ‘a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding’ (Rule 6.01, Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
The duty of disclosure also applies to parties complying with the pre-action procedures.
What does disclosure in parenting matters relate to?
The documents relevant in a parenting matter will be specific to the case and will vary from case to case. Rule 6.05, Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out some documents may include criminal records, medical reports (about a child or parent) and school reports.
What happens if a party does not comply with the duty?
If a party will not willingly comply with their duty, you may need to issue subpoenas to obtain the information. You can only issue subpoenas if there are current proceedings in Court.
There are serious consequences for failing to disclose information or breaching an undertaking. Rule 6.17, Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the consequences for non-compliance.
The Court may:
- Refuse to allow you to use that information or document as evidence in your case;
- Stay or dismiss all or part of your case;
- Order costs against you; and/or
- Fine you or imprison you on being found guilty of contempt of court for not, or disclosing the document or for breaching your undertaking.
If I disclosed what I need to, do I have to do anything else?
It is important to note that the duty of disclosure is ongoing until your matter has been finalised.
How can we help?
If you or a loved one would like legal advice in relation to a family law property settlement or a family law matter, please contact our Family Law Team to arrange an appointment with one of our experienced family law solicitors.
Phone the Family Law Team on +61 2 6206 1300, email us: mtennant-breust@elringtons.com.au or fill in our Family Law Free 15 minute initial consultation booking form
[1] See Schedule 1, Part 2 –Federal Circuit and Family Court of Australia (Family Law) Rules 2021. See also section 60(I) of the Family Law Act 1975 (Cth)
[2] See our article entitled – “All the cards on the table – Family law Property Matters”
