A duty of disclosure makes each party responsible to disclose documents and information that would affect the outcome and procedural fairness of a case. The term is applicable to financial cases but is also an important part of parenting and family law cases. Family law cases are often complicated with conflicting parties. Hence it is important to understand the role of a duty of disclosure. This article will outline the key parts of a duty of disclosure.
What is it?
A duty of disclosure requires all parties to disclose all information relevant to an issue in the case. This requires the parties to disclose the information to both the court and to the other party. The disclosed information can be in the form of a paper document or in an electronic format. Additionally, the information that must be disclosed includes information that is not known to the other party. This ensures that the court can make a fully informed decision using all the relevant and required information.
The duty of disclosure is applicable throughout the entire case. It does not only apply at the time of a court hearing or on the date of an application, but also where circumstances may have changed for one of the parties. As a party, you will must continue to provide information as circumstances change or as more documents come into your possession.
Financial Disclosures
In addition to the general disclosure requirements, there are specific rules about disclosure in financial cases. Disclosure must be of the total direct and indirect financial circumstances of the party. It requires disclosing all sources of earnings, including interest, income, and property. This applies whether the earnings are owned directly, or go to some other person or beneficiary such as a de facto partner. It also applies where earnings are in corporations or trusts. Additionally, the parties must disclose any details of financial gifts or property disposal that were made in the year immediately before the separation or since the final separation.
Undertakings
The court requires an undertaking from all parties. This is evident in rule 13.15 of the Family Law Rules (2004). The undertaking must state that you have disclosed all information to the best of your knowledge. You must disclose the information in a timely manner. The party must also acknowledge that a breach of the undertaking is a contempt of court. You are not to make a statement or sign an undertaking if you know that it is false or misleading. The undertaking must be filed at least 28 days before the first day you are before a judge.
Penalties
There are set penalties if you do not disclose, fail to file an undertaking or file a false undertaking. As a penalty the court can refuse to allow you to use the information or document as evidence in your case. The court may dismiss your case or part of your case. You could also receive a fine. A further penalty can be imprisonment based on your contempt of court.
In conclusion, a duty of disclosure is integral to the court procedure, hence you should ensure that you understand the requirements of a disclosure. If you have any further questions, ask a lawyer today.
