Full and Frank Disclosure in the Family Court

Full and Frank Disclosure in the Family Court

Full and Frank Disclosure in the Family Court

Find out what full and frank disclosure means in a family law dispute, what process you should follow and how to make sure you comply with your legal duties.

When married couples or individuals in a de facto relationship separate, they need to finalise an agreement about the division of their finances. You should provide financial disclosure of your financial position. Your legal duty is to disclose and provide accurate and honest information to your former spouse; otherwise, it can result in severe penalties or even imprisonment. Let’s take a closer look.

What Is Full And Frank Disclosure In Family Law?

Under the Family Law Rules, you must be full and frank in your disclosure to your former spouse and the family court. This essentially means that you must be honest and upfront with the information that you provide, without exception or exclusion.

Providing full financial disclosure in a property settlement matter will ensure that the agreement you are entering into is appropriate, fair, and just.

If both parties comply, it is more likely that the dispute will be resolved quickly and without expensive legal fees.

What Needs To Be Disclosed?

It is necessary to provide a personal financial summary of your liabilities and assets or interests in a financial resource in family law matters. A property statement provides details of all of your financial circumstances. This can include your employment details, salary, expenses, assets, superannuation, liabilities and recently sold assets. The financial statement is legally binding, the affidavit describing the party’s financial circumstances need to be accurate and honest, or there will be severe legal consequences.

You have a duty to disclose:

  • Assets that you own, including their valuation and recently sold assets
  • Payslips, group certificates and Centrelink statements
  • Tax returns
  • Bank statements
  • Credit card statements
  • Details of any outstanding loans and liabilities
  • Superannuation financial statements
  • Financial interest in a company or trust, with supporting documentation
  • Ownership of property or land
  • Other benefits or income from a legal entity such as a trust
  • Other financial resources

For parenting matters, the disclosure relates to information relating to the care and living arrangements of the children. It can include medical or expert reports, school reports, letters, or photos, and information relating to the care of the children or parenting capacity of both parties. Information regarding family violence or intervention of police or custody agencies are also highly relevant. The extent of disclosure can be dependent on individual circumstances.

Disclosure should be ongoing throughout the dispute, particularly if new information comes to hand or if any circumstances change which may affect the outcome.

To understand more about your duty to disclose, you should consult an experienced lawyer before commencing settlement negotiations.

How Do You Provide And Receive Disclosure?

In family law proceedings, the exchange of documentation can occur in several ways. A standard method for disclosure is to provide a list of documents. The other party should produce documents upon request, via email or hard copy.

The Family Law Rules stipulate that disclosure exchange can occur by:

  • Producing documents
  • Inspecting documents
  • Copying documents
  • Listing documents
  • Disclosure orders
  • Answering questions

Can A Property Settlement Be Changed?

In most cases, once a settlement has occurred, the outcome legally binds you. Therefore it is crucial to ensure that you have a complete understanding of the financial circumstances of your former spouse before agreeing to a settlement.

In some cases, overturning a property settlement ruling may be possible. Still, it may not be an option without evidence of fraud, non-disclosure, excessive pressure, or frank financial disclosure.

What Do You Do If Your Ex Partner Refuses To Provide Full Details Of Their Financial Circumstances?

When couples separate, they need to divide their financial assets. The first step is to request financial information from your former spouse. If the other party refuses to supply the necessary documentation to settle your financial matters, you are within your rights to commence legal proceedings in the Family Court of Australia or the Federal Magistrates Court. Under the Family Law Act, they can make orders that request full and frank disclosure from your former spouse. If needed, the court can issue a subpoena to a bank, employer or other financial institutions to gather the financial information. Penalties for non disclosure are severe.

What Are The Consequences Of Non Disclosure?

If you provide false or misleading information or fail to provide full disclosure, it can result in unfair, just or equitable final orders. The court could assign an inaccurate value to an asset or liability, adversely affecting both parties. The other party may incur a severe penalty. Such a court order to comply or pay the other party’s legal costs, as well as the dismissal of proceedings. A fine for contempt of court may be imposed or imprisonment for failure to provide full and frank disclosure. If a party has breached their duty of disclosure, it may affect how a judge views the parties character and adversely influence the order of the financial matters.

If the financial proceedings have been finalised and the non disclosure was discovered after the fact, the court could make new orders, based on the true financial position.

You must understand your duty, and if you are unsure, you should seek legal advice before commencing court proceedings.

Summary

The Family Law Act states that you must be full and frank in your disclosure to your former spouse and the court. You have a duty to provide any information related to salary, property, or interests in a financial resource, disclosing your true financial position. Providing full financial disclosure in a property settlement matter will ensure that the agreement you are entering into is appropriate, fair, and just. If you supply false or misleading details or do not provide full and frank information, it can result in unfair, just or equitable final orders.

In most cases, once a settlement has occurred, the outcome legally binds you. Therefore it is crucial to ensure that you have a complete understanding of the financial circumstances of your former spouse before agreeing to a settlement.

To understand more about your duty to disclose, you should consult an experienced lawyer before commencing settlement negotiations.

FAQs

1. What Is Full And Frank Disclosure?

Answer: Under the Family Law Act, you must be full and frank in your disclosure to your former spouse and the court. This essentially means that you must be honest and upfront with the information that you provide, without exception or exclusion.

Providing full financial disclosure in a property settlement matter will ensure that the agreement you are entering into is appropriate, fair, and just.

2. What Is Included In Financial Disclosure?

Answer: You have a duty to disclose details related to salary, property, or interests in a financial resource. This can include a house, land, shares or financial investments. Also, a complete list of your financial resources, assets and liabilities. Credit card, bank and superannuation statements, tax returns, income, payslips and group certificates. Any documentation that relates to ownership or interests in any financial assets will need to be disclosed. Otherwise, it can result in severe penalties.

3. What Is A Property Financial Statement?

Answer: It is necessary to provide a personal financial summary of your liabilities and assets in family law proceedings. The statement provides details of all of your financial circumstances. This can include your employment details, salary, expenses, assets, superannuation, liabilities and recently sold assets. The financial statement is legally binding, the affidavit describing the party’s financial circumstances need to be accurate and honest, or there will be severe legal consequences.

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