Spend enough time with any family lawyer and you may hear about our friends, Full and Frank Disclosure, or even just “Full and Frank”. No, they’re not our actual friends but a reference to the pre-action procedures and each parties’ duties in family law matters including financial and parenting cases.
Each party to a family law dispute has a duty to provide to the other party all information relevant to an issue in the case. When does it start you may ask? It starts before proceedings are even filed.
Schedule 1 of the Family Law Rules 2004 (Cth) sets out what is known as the Pre-Action Procedures. The Rules state that before starting a case, each prospective party must comply with them.
Schedule 1 states that parties must make a genuine effort to settle matters, and comply with the duty of disclosure. It details the types of documents and information which should be exchanged between the parties to a parenting or financial matter (including property settlement and spousal maintenance). If these are not complied with, the Court can consider a party’s non-compliance when making a costs order.
There are only limited circumstances where a prospective party does not have to follow the Pre-Action Procedures and you should consult a family lawyer about whether these apply to you.
Disclosure does not just mean paper documents. It includes other information which may be stored on a computer or device. In financial matters, there are specific rules about full and frank disclosure over and above the general disclosure requirements. Each party must make disclosure of their total direct and indirect financial circumstances. This can include bank statements, company and Trust documents, superannuation statements and much more. It extends to information about any property disposal that was made in the year preceding separation or since final separation.
In parenting cases, the Rules say that parties must make full and frank disclosure of all information relevant to the case. This could include medical reports, school reports or photographs.
Just because the other party does not know about the information, does not mean that you don’t have to disclose it to them. If the information is relevant to an issue in the case, it must be disclosed.
The duty of disclosure is continuing throughout a matter. As a family lawyer, I am constantly surprised how other practitioners say after exchanging a stack of documents, “Our client’s disclosure is now complete”. It isn’t. It continues up until the matter is settled in or out of Court.
So why is this all so important? If you do not comply with the duty of disclosure, a number of things may happen. The Court may refuse to let you use certain information as evidence in your case, which could damage your prospects of succeeding in the outcome you are aiming for. A costs order could be made against you or, in serious cases, you could be found guilty of contempt of Court and face being fined or imprisoned.
In financial cases, non-disclosure by a party could warrant the other party making an application to Court to set aside any property settlement orders made or Binding Financial Agreement entered into. If such an application is successful, the other party will be entitled to seek orders for property settlement. All of the property of both parties would be taken into account as at the date of agreement being reached or a trial. This means that a non-disclosing party could go on to amass significant assets after a property settlement and if those property settlement orders or that Binding Financial Agreement is set aside, the assets accrued after separation would be taken into account and could be divided in the later proceedings. Serious costs consequences could follow.
The Court may, in certain circumstances, make orders in financial matters giving a lot more of the assets to an innocent party where there is evidence that the other party is deliberately not making disclosure of assets. This can help parties in situations where assets can be traced to a certain extent, and then it becomes either too costly or too difficult to trace them any further.
In short, “Full and Frank” are serious and should not be taken lightly. Talk to an experienced family lawyer about your obligations when it comes to making disclosure, or if you think your spouse or ex-partner may be hiding assets from you. A wrong turn could mean that, sooner or later, it’ll catch up with you with serious consequences.