Disclosing Documents

The duty of disclosure requires the parties to a family law dispute to provide each other with all information relevant to the issues in the case.

The aim of disclosure is to help the parties to focus on genuine issues, reduce cost and encourage settlement of the case.

The Court will look at whether you and the other party have complied with the duty of disclosure when deciding the outcome of your case.

This page provides information about your responsibilities under the duty of disclosure, including:

• full and frank disclosure - and what that might mean in financial and parenting cases;
• written undertakings that must be given to the Court; and
• the consequences of failing to disclose documents.

What is the duty of disclosure?

Duty of disclosure requires all parties to a family law dispute to provide to each other party all information relevant to an issue in the case. This includes information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other parties may not know about. This duty starts with the pre-action procedure before the case starts and continues until the case is finalised.

As a party, you must continue to provide such information as circumstances change or more documents are created or come into your possession, power or control.

Part 13 of the Family Court Rules explains the different aspects of your duty of disclosure to the other parties and the Court.

Disclosure in parenting cases

Parties are required to make full and frank disclosure of all information relevant to a parenting case, at all stages in a case. The information you have to disclose depends on the issues in dispute in your case. For example, the relevant documents may include medical reports about a child or parent, school reports, letters and drawings by the child, photographs, a diary.

If you obtain an expert’s report for a parenting case, you are required to give a copy to the other parties and the Independent Children’s Lawyer (if one has been appointed).

Property and financial cases

In property and financial cases, it is very important that both parties are totally honest and open about their financial situation. In addition to the general requirements for full and frank disclosure, there are specific rules about disclosure in financial cases.

The duty of disclosure starts with the pre-action procedures, so both parties can be informed when attempting to come to an agreement without the Court's involvement.

When you make your application for property or financial orders, you need to file a Financial Statement (Form 13). If that does not fully meet your duty of disclosure, you also need to file an affidavit giving further particulars. If your financial circumstances change after you file the Financial Statement, you need to file an amended statement within 21 days of the change of circumstances (unless the amendments can be set out clearly in 300 words or less, in which case you can file an affidavit with details of the changes in circumstances).

In addition, there are specific documents you need to exchange:

• before the first hearing;
• if you have requested spousal or defacto maintenance orders; and
• before a conciliation conference.

See: disclosure in property and financial cases for more information.

Duty of disclosure rules

Part 13 of the Family Court Rules details a number of ways in which you may be required to comply with your duty of disclosure to the other parties and the Court. These include:

• production of documents (Part 13 Division 1 Subdivision 1)
• inspection of documents (Part 13 Division 1 Subdivision 1)
• copying of documents (Part 13 Division 1 Subdivision 1)
• list of documents (Part 13 Subdivision 3, Rule 216)
• orders for disclosure (Part 13 Subdivision 3, Rule 218), and
• answers to specific questions (Part 13 Division 3).

List of Documents (Rule 216)

• The requesting party may, by written notice after the conciliation conference, ask the other party to give them a list of documents. These documents are ones to which the duty of disclosure applies.
• The duty applies to documents that are or have been in the possession or control of the disclosing party and importantly, are relevant to an issue in the case at hand (Rule 202).
• Within 21 days of receiving the notice, the disclosing party must serve on the requesting party a list of documents which identify those to which the duty applies, documents no longer in their possession or control but that the duty would otherwise apply, and the documents for which privilege from production is claimed.
• Copies of the documents or production of them for inspection may be requested by written notice. Within 14 days after receiving the notice, the disclosing party must give the copies requested, other than those to which privilege is claimed or that are no longer in their possession or control. This is at the requesting party’s expense.
• If a document later comes into the possession or control of the disclosing party, it must be disclosed within 7 days after this time. This is the continuing nature of the duty of disclosure.

Specific Questions (Part 13 Division 3)

After a conciliation conference at the Family Court, either party may serve a request on the other party to answer specific questions.  These are mostly used in complex financial cases. They cannot be vexatious or oppressive.

What are they?
One set of questions can be served on either party. The questions must be in writing. There cannot be more than 20 questions. Each question is taken to be one specific question. To obtain the court’s leave to ask more than 20 questions it usually requires an Application in a Case and a supporting affidavit. This will often necessitate a hearing in the matter.

How to answer (Rule 223)
The answers to the specific questions must be made in affidavit form. These answers are to be served within 21 days after service of the request to answer the questions. The affidavit must fully and frankly answer each specific question or object to answering it. If objecting to answering the question, the grounds of the objection and the facts in support of it must be specified.

Serving a copy
The requesting party must serve a copy of any request to answer specific questions on all other parties. Similarly, the affidavit answering the specific questions must be served on each person served with the request.

A request to give a list of documents
If the party answering the questions is required to give the requesting party a list of documents, they do not have to answer the specific questions until the time for disclosure has expired.

Undertaking as to Disclosure

When your case is going to trial, you will be ordered to file an undertaking as to disclosure stating that you:

• have read the Court rules about disclosure;
• understand your duty to the Court and other parties to provide full and frank disclosure;
• have complied with the duty to the best of your knowledge and ability; and
• acknowledge by breaching the undertaking you can be found guilty of contempt of court.

This undertaking must be filed within the timeframe ordered by the Court.

You will also be ordered to attach a list of disclosure documents to your Undertaking. The list should contain all of your relevant disclosure documents. Copies of most of the documents on the list should have already been provided to the other party during the proceedings. An example of a disclosure list is attached below.

If you have any legal questions about your duty to disclose documents, you should get legal advice. Remember that court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

Consequences of not disclosing documents

If you fail to disclose documents, fail to file an undertaking, or file a false undertaking, the Court can:

• 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, or
• fine you or imprison you if you are found guilty of contempt of court for not disclosing the document or for breaching your undertaking.

Filing documents

It is important to remember that the judicial officer does not automatically receive all documents that have been disclosed by the other party. If you want to rely on disclosed evidence to support your case, you need to annex it to an affidavit or tender it into evidence at trial. Read the self-represented litigants handbooks for more information about preparing for trial.

More information

Disclosure is a complex area of law. The information here is an overview only of the requirements. You must carefully read Part 13 of the Family Court Rules 2021 to understand your full obligations. If you are unsure about any of your obligations, you should get legal advice. A lawyer will help you understand your legal rights and responsibilities, including:

• your duties and obligations about disclosure, including full and frank disclosure;
• the effect of the undertaking as to disclosure, and
• the terms used on this webpage.

Another resource to assist with complying with the duty of disclosure is the disclosure in property and financial cases page.

Last updated: 12-Feb-2024

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