The Australian family law legal system wants the parties in a family separation to be fully open with each other about their financial situation and the financial history of their relationship when working out property settlement or parenting arrangements.
The obligation on parties to make full disclosure to each other was previously contained in the Family Circuit and Family Court (Family Law) Rules, but since 10 June, 2025, the Family Law Amendment Act 2024 has elevated the duty of disclosure into the Family Law Act itself.
The reforms to the Family Law Act aim to promote greater transparency between parties to financial and property settlement matters, as well as parenting matters, and require lawyers to be advising their clients about the consequences of non-compliance, as well as encouraging them to comply.
Under the Family Law Act, separating couples in financial and property settlement matters are now legally required to:
- Give full and frank disclosure of all relevant financial information to each other and to the Court.
- Do so promptly and avoid delay or evasion in providing such information.
- Disclose documents and/or information that may adversely affect their own case or support the case of the other party.
Provide disclosure on an ongoing basis throughout the negotiation Disclosure is a legal obligation in both property and parenting matters. The law now clearly requires parties to provide disclosure proactively, not just when requested to do so. Depending on the particular case, the classes of documents that may be required to be disclosed include:
Financial Cases
- Bank statements
- Payslips
- Tax returns
- Superannuation statements
- Property Valuations
- Documents showing ownership or interests in property, companies or trusts
- Business financial records (profit and loss statements, BAS returns)
- If you have an interest in a trust, a copy of the trust deed and financial statements for the trust
- Loan agreements and mortgage documents
- Records of disposal or transfer of assets (sale contracts, transfer deeds)
- process or the court case.
Parenting Cases
- School reports and records
- Medical reports and records
- Reports from counsellors or psychologists
- Family Violence Orders or Applications
- Documents about any previous involvement by a child safety authority
- Communication records
- Photographs or other documents relevant to parenting issues
If one party believes that the other party has in their possession relevant documents that have not been produced, there are avenues available to compel disclosure. These include:
- Requests for production and inspection of specifically identified documents during the process of exchange of disclosure documents.
- Applications to the court seeking orders for disclosure
- Subpoenas directed to third parties, such as banks, employers, accountants or schools to produce relevant records.
There can be significant penalties for failing to give full and proper disclosure. A court may make a costs order against a party in response to their failure to produce documents. Breaches that affect the consequences for a trial will be given more weight – Browne and Green [2002] Fam CA 791.
In Penfold and Penfold [1980] 144 CLR 311, it was stated that presenting a false statement or causing another party to be put in the position of having to prove the true financial position justified a costs order.
Since the disclosure provisions are now part of the Family Law Act, a failure to give disclosure in some circumstances could amount to a finding of contempt of court. The court has very strict penalties available to deal with contempt, including imposing significant fines or even a custodial sentence.
A court can also stay or even dismiss an application by a party who has not complied with their obligation to give full and frank disclosure.
Because the application for disclosure is ongoing, a party is required to notify the other party of any changes to their financial circumstances, even if they have already given full disclosure. If there are no proceedings on foot, this can be by way of a letter from their solicitor to the other solicitor, accompanied by copies of any documents that show the change (for example, the payslip for a new job). If the matter is already before the court, then the party will need to file an amended Financial Statement and/or possibly an affidavit explaining the change.
Clients should treat disclosure seriously. They should be advised to gather tax returns, payslips, bank records, superannuation statements, ownership documents for all assets and any parenting-related reports or records. They should provide these records to their lawyer promptly and continue to update disclosure as circumstances change or documents surface.
Full disclosure protects a client’s position and protects the integrity of the process that lawyers and the courts rely on to deliver fair outcomes.
Written by
Stephen Rugendyke
Special Counsel
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