- within Strategy, Litigation, Mediation & Arbitration and About Mondaq topic(s)
- with Senior Company Executives, HR and Finance and Tax Executives
- with readers working within the Accounting & Consultancy, Automotive and Insurance industries
Disclosure, the family law equivalent of discovery in other kinds of civil proceedings, is a foundational part of family law matters.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the various predecessors of those Rules have long included a requirement that:
… each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.
That duty is applicable in both parenting and property proceedings, and continues throughout the entirety of a matter (see Rules 6.02, 6.05, and 6.06). It requires that any and all information that is relevant to a fact in issue in a matter needs to be disclosed.
Disclosure is such a crucial aspect of property matters in particular, that the most recent amendments to the Family Law Act 1975 (Cth) included the addition of section 71B (for marriages) and section 90RI (for de facto relationships) which specifically set out:
s71B – for marriages
(1) Each party to a proceeding relating to financial or property matters of a marriage (other than proceedings on appeal) has a duty to the court and to each other party to give full and frank disclosure, in a timely manner, of all information and documents relevant to:
(a) for a party to the marriage — the issues in the proceeding that relate to financial or property matters of the marriage; or
(b) for any other party to the proceeding — so much of the party’s financial circumstances as are relevant to the issues in the proceeding that relate to financial or property matters of the marriage.
s90RI – for de facto relationships
(1) Each party to a proceeding relating to financial or property matters of a de facto relationship (other than proceedings on appeal) has a duty to the court and to each other party to give full and frank disclosure, in a timely manner, of all information and documents relevant to:
(a) for a party to the relationship — the issues in the proceeding that relate to financial or property matters of the relationship; or
(b) for any other party to the proceeding — so much of the party’s financial circumstances as are relevant to the issues in the proceeding that relate to financial or property matters of the relationship.
The duty of disclosure is clear, and failure to comply with this duty can result in serious consequences for the party who fails to disclose, including costs orders and restraints being made against the non-discloser, adverse findings of credit, and the Court being unable to ascertain the exact value and makeup of the asset pool, and awarding a much lower percentage of the asset pool to the non-discloser as a result. These consequences are clearly set out in:
- Black v Kellner (1992) 15 Fam LR 343, a case in which the Full Court of the Family Court of Australia approved the Trial Judge’s determination that the Husband only receive less than 10% of the known asset pool as a result of his failure to disclose his financial circumstances and assets; and
- Weir v Weir (1992) 16 Fam LR 154, a case in which the Full Court allowed the reopening of a case and a significantly greater adjustment of the property pool in favour of the Wife as a result of the Husband’s failure to disclose assets including an overseas bank account; and
- Kannis & Kannis (2003) FLC 93 – 135, a case in which the Full Court said that the duty to disclose is “absolute” and it is irrelevant whether the failure to disclose is purposeful or accidental. The Husband’s material non-disclosure in this matter resulted in an adjustment in favour of the Wife of 10%.
Despite the duty being clearly set out in the Rules, and now in the Family Law Act, whether a party has provided sufficient disclosure is frequently the subject of significant dispute, as can be seen from the above cases.
Disclosure documents can include a variety of documents, including but not limited to bank statements, pay slips, share certificates, overseas assets, trust deeds and other relevant documents. The documents and information may include assets that are held in the parties’ sole name, assets that are held in the party’s name with another person (such as a joint bank account) or multiple other persons (such as a family trust or self managed superannuation fund) and may include assets or financial resources not held in the name of the party but from which they derive a benefit (such as a family company in which neither the Husband nor Wife are Directors or Shareholders but for which one party has access to credit cards, bank accounts or from which the party has historically been paid funds).
The question for litigants, and practitioners representing them, is how much disclosure is required before the duty is satisfied? How many documents need to be disclosed? How much information needs to be provided?
In Julien & Perrin (No 2) [2025] FedCFamC1F 50, Harper J provided guidance as to the scope of disclosure required, particularly in financial matters with complex family company or trust structures.
In that matter, the Wife filed an application seeking significant and wide ranging disclosure from the Husband in circumstances where the asset pool was anywhere between $20,000,000 and $50,000,000 depending on each party’s assertions and version of events.
Harper J acknowledged the vital nature of full and frank disclosure but said at [15]:
Although the duty of disclosure has been called “absolute”, in addition to limits imposed by relevance, the authorities have recognised other limitations grounded in concepts of reasonableness in the particular circumstances and proportionality (Needham & Trustees of the Bankrupt Estate of Needham (2017) FLC 93 – 777 at [38] – [45]). It can be said therefore that meaningful inadequacy in disclosure is not clearly established merely because there appear to be gaps or incompleteness in the material disclosed (Wei v Xia (No 5) at [356]).
In balancing these considerations of the absolute nature of disclosure, with reasonableness and relevance, His Honour also considered the overarching purpose as set out in the Family Law Act 1975 (Cth) for the Court to resolve disputes according to law and as quickly, inexpensively and efficiently as possible.
There were a number of key arguments canvassed in Harper J’s Judgment:
- The parties had exchanged numerous pieces of correspondence requesting, and enclosing disclosure, and the Husband had made disclosure of thousands of pages of material.
- The Wife’s argument that the Husband’s disclosure was voluminous, chaotic and difficult to parse did not find favour with His Honour, who noted that the Husband had provided a number of responses to the Wife’s requests for disclosure, including lists of disclosure, and that Rule 6.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) did not require the list of disclosure provided by the Husband to be in a particular form. In short, the Husband presenting his disclosure in an unhelpful or inconvenient manner was not necessarily sufficient to conclude that he had failed in making disclosure.
- A number of the documents sought by the Wife could not be shown to be relevant to the list of agreed issues in dispute which had been prepared jointly by the parties and submitted to the Court on a prior date.
- The wife’s allegations that were vague, or amounted only to speculation, were not sufficient to ground a request for disclosure.
Ultimately, Harper J concluded that the Wife’s application for further disclosure was to be dismissed and said at [33]:
[33] It is an unfortunate feature of litigation in this Court that parties frequently sink into an unproductive and ultimately pointless round of applications about disclosure, which delay an orderly progression to final hearing at a proportionate cost, when the rules about disclosure and the substantive adverse consequences which can flow to a defaulting party from non-disclosure are well known. This reality, the overarching purpose and the existing restrictions on interlocutory applications in the Rules and Practice Directions should not only discourage but compel parties to cease ill-conceived and time-wasting applications about disclosure. Too often inadequate attention is given to the purpose and formulation of applications about disclosure.
What Julien & Perrin (No 2) demonstrates is that while the duty of disclosure is fundamental and requires absolute compliance, any disclosure requested must:
- Be relevant to an issue to be determined in the proceedings;
- Not be based purely on speculation or vague allegations with no evidentiary foundation;
- Take into account the overarching purpose and be reasonable and purposeful in the documents sought to be obtained.
For further information please contact:
Michael Byrnes, Partner
Phone: + 61 2 9233 5544
Email: mjb@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]