Disclosure in Family Law: Understanding the Duty and the 2025 Reforms
What is the Duty of Disclosure?
The duty of disclosure requires all parties involved in a family law matter to provide full and frank disclosure of all information relevant to the issues in dispute in their possession or control. This includes information contained in physical documents as well as data stored electronically, such as on computers or other digital platforms.
The obligation extends to documents and information that may not be known to the other parties. The duty of disclosure is a continuous obligation and applies to all stages of a matter, from the pre-action phase all the way to trial, whether the issue involves property settlement, spousal maintenance or parenting matters.
What Must Be Disclosed?
In financial or property matters, a party is required to disclose all sources of income, earnings, interest, property (including both vested and contingent interests), and any other financial resources. This obligation applies regardless of whether the financial interest is held in the party’s own name, held or received by another person (including a spouse or child), or held through a corporate structure, company, or trust. A party must also disclose any disposal of property that occurred either in the 12 months immediately prior to separation or at any time after separation and before settlement. Disposal includes the sale, transfer, assignment, or gifting of property.
In parenting cases, documents that may require disclosure include medical reports relating to the child or a parent, criminal records of a party, school reports, letters/drawings created by a child, photographs, or diaries. The Court may also order that certain documents, or parts thereof, not be disclosed if they contain sensitive information, known as protected confidences.
The Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) strengthens parties protection of sensitive information under the protective confidence provisions. Section 102BA of the Family Law Act 1975 (Cth) (“the Act”) defines protective confidence as a communication where one person (the confidant) provides a professional service to another person (the protected confider). The confidant has an obligation either explicitly stated or implied by the relationship, not to disclose the communication shared by the protected confider. The Court can make an order to protect such information if the likely harm of the information being disclosed or used in the proceedings, outweighs the benefit to the Court of being able to use the information.
Consequences of Non-Disclosure or Filing a False Undertaking
If a party fails to disclose relevant information, files an undertaking, or submits a false undertaking, the Court may impose serious consequences, including:
· Taking non-compliance into account in property settlement (s79(5)/s90SM(5);
· Refusing to allow the use of the undisclosed information or a document as evidence in the proceedings;
· Staying or dismissing all or part of the party’s case;
· Ordering the party to pay the other party’s legal costs;
· Imposing fines or imprisonment if the party is found to be in contempt of court for failing to disclose documents or for breaching an undertaking.
Amendments from 10 June 2025
From 10 June 2025, the Amendment Act has codified the duty of disclosure within the Act. This obligation was previously set out in Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 but now also appears in the Act under section 71B (for married parties) and section 90RI (for de facto parties).
While the substance of the duty remains unchanged, the Amendment Act embedded the duty within the Act itself, reinforcing the importance of full and frank disclosure in family law matters.
If you require advice in relation to your disclosure obligations or how these changes may impact your case, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or click here.
