Duty of disclosure and family law proceedings - Family Court of ...

FAMILY
COURT
OF
WESTERN
AUSTRALIA
Duty of disclosure and family law
www.familycourt.wa.gov.au
proceedings
Introduction
The duty of disclosure applies to all parties in most types of cases in the Family Court.
Parts 2 and 4 of this brochure apply only to financial cases.
The information in this brochure is provided in the following parts:
PART 1 Duty of disclosure (Rule 13.01)
PART 2 Full and frank disclosure
PART 3 Undertakings about your disclosure (Rule 13.15)
PART 4 Financial Statement (rules 13.05 and 13.06)
PART 5 Disclosure of documents
PART 6 Penalties for failing to disclose or file undertakings or filing false
undertakings
PART 7 Legal advice
PART 7 Further information
Part 1 Duty of disclosure (Rule 13.01)
As a party to a case you have a duty to provide to all other parties disclosure of all
information and documents which are relevant to an issue in the case. This duty starts with
the pre-action procedure before the case starts and continues until the case is finalised.
This means that you must continue to provide information and documents as
circumstances change or more documents are created or come into your possession,
power and control.
Part 2
Full and frank disclosure
Rule 13.04 requires a party to a financial case to make full and frank disclosure
about their financial circumstances. This requires detailed disclosure of:
1 All income or earnings (whether paid direct to the party or not).
2 All interests in any property or in any legal entity (ie. any corporation that
is not a public company, any trust, partnership, joint venture business or
other commercial activity) that is fully or partially owned or controlled by
the party, including details of any income earned by that legal entity (even
if the income is paid to someone else).
3 All financial resources of the party. CONTINUED PAGE 2 >>>>>>>>>>>>>
www.familycourt.wa.gov.au

Part 2
continued
4 Any trust where as:
~ an appointor; or
~ trustee; or
~ shareholder and/or director of any legal entity
the party has any direct or indirect power or control, including to remove or appoint
a trustee or approve or disapprove the amendment of the terms of the trust.
5 Any trust in which the party, the party’s child, spouse or de facto spouse or a
corporation of which any of these persons is a shareholder or director is a beneficiary
of capital or income.
6 Any property disposal (this may be by sale, transfer, assignment or gift) by the party
(including any property controlled by a relevant legal entity referred to in paragraphs
2, 4 or 5) that may affect, defeat or deplete a party’s claim in a financial case:
(i) in the 12 months immediately before the separation of the parties; or
(ii) since the final separation of the parties
except any disposal of property made with the consent or knowledge of the other party
or in the ordinary course of business.
7 All liabilities of the party or any relevant legal entity.
NOTE: "Interests" in property or liabilities include "vested" interests and "contingent" interests.
Part 3 Undertaking regarding your disclosure (Rule 13.15)
This applies to all parties except a child representative.
You are required to file an undertaking stating that you:
have read Parts 13.1 (Disclosure between parties) and 13.2 (Duty of disclosure – documents)
of the Rules;
are aware of your duty to the court and each other party (including any child representative)
to give full and frank disclosure of all information relevant to the issues in the case, in a timely
manner.
You are required to:
undertake that, to the best of your knowledge and ability, you have complied with the duty of
disclosure; and
acknowledge that breach of the undertaking may be contempt of court.
You must not make a statement or sign an undertaking if you know, or should reasonably know,
that it is false or misleading.
This undertaking must be filed either:
7 days before the pre trial conference; or
if no pre-trial conference is held, 7 days before a trial or hearing.
2
Attached to the back of this brochure is the form of Notice and undertaking which you can remove,
complete and file at the appropriate time.

Part 4 Financial Statement (Rules 13.05 and 13.06)
As part of your duty of disclosure you are required in financial cases to file a
Financial Statement (Form 13). Where completing the form does not provide
sufficient information to enable you to provide full disclosure you are
required to also file an affidavit with the other information.
If your financial circumstances change after you file the Financial Statement
you must file an amended statement 7 days before any of the following:
conciliation conference;
pre trial conference;
trial;
or when you seek consent orders.
This is as well as your ongoing duty of disclosure referred to in Part 1 of this
brochure.
Part 5
Disclosure of documents
Chapter 13 of the Rules details a number of ways in which you may be
required to comply with your duty of disclosure to the other party(ies) and the
Court. These include:
production of documents [Part 13.2];
inspection of documents [Part 13.2];
copying of documents [Part 13.2];
list of documents [Rule 13.20];
orders for disclosure [Rule 13.22];
answers to specific questions [Part 13.3].
Part 6
Penalties for failing to disclose or file an
undertaking or filing a false undertaking
If you fail to comply with your duty to disclose, the Court may:
refuse to give you permission to use that information or document as
evidence in your case;
stay or dismiss all or part of your case
order costs against you;
fine you or imprison you on being found guilty of contempt of court for
not disclosing the document or for breaching your undertaking.
3

Part 7
You should carefully read Chapter 13 of
the Rules to understand your obligation
to disclose and obtain legal advice
regarding:
your duty of disclosure
Legal advice
your obligation to make full and
frank disclosure in financial cases;
the effect of the undertaking as to
disclosure; and
the terms used in this brochure.
Further information
If you want more information about your duty of
disclosure you may contact any registry of the
Family Court of Australia or, if in Western
Australia, the Family Court of Western Australia.
If you want more information on your legal
rights or obligations or you wish to obtain
independent legal advice, you need to contact a
lawyer. If you have any difficulty obtaining
independent legal advice, you might get
assistance from a law society, a legal aid office
or a community legal centre. Contact numbers
are listed below.
CONTACT DETAILS
Registries
ALBURY
(02) 6021 8944
ALICE SPRINGS
(08) 8952 8222
ADELAIDE
(08) 8205 2666
BRISBANE
(07) 3248 2200
CAIRNS
(07) 4041 2377
CANBERRA
(02) 6267 0511
COFFS HARBOUR
Contact the
Brisbane Registry
(07) 3248 2200
DANDENONG
(03) 9767 6200
DARWIN
(08) 8981 1488
DUBBO
(02) 6841 5000
HOBART
(03) 6232 1725
LAUNCESTON
(03) 6334 2111
LISMORE
(02) 6621 8977
MELBOURNE
(03) 8600 3777
NEWCASTLE
(02) 4926 1255
PARRAMATTA
(02) 9893 5555
ROCKHAMPTON
(07) 4921 2939
SYDNEY
(02) 9217 7111
TOWNSVILLE
(07) 4722 9333
WOLLONGONG
(02) 4226 8200
WESTERN AUSTRALIA
Family Court of Western Australia
(08) 9224 8222
Community
advisory services
LEGAL AID OFFICES AND
COMMISSIONS
Adelaide
(08) 8463 3555
Alice Springs
(08) 8951 5377
Brisbane
1300 651188
Burnie
(03) 6434 6444
Canberra
(02) 6243 3411
Darwin
(08) 8999 3000
Hobart
(03) 6233 8383
Launceston
(03) 6336 2050
Melbourne
(03) 9269 0234
Perth
1300 650 579
Sydney
(02) 9219 5000
COMMUNITY LEGAL CENTRES
ACT WOMEN’S LEGAL SERVICE
(02) 6257 4499 OR
toll free: 1800 634 669
NSW Redfern
(02) 9698 7277
Kingsford
(02) 9398 6366
Marrickville
(02) 9559 2899
QLD Caxton
(07) 3254 1811
SA
TAS
VIC
WA
WOMEN’S LEGAL SERVICE
(07) 3392 0670
Noarlunga
(08) 8384 5222
Parks
(08) 8243 5521
Hobart
(03) 6223 2500
Launceston
(03) 6334 1577
Western Suburbs
(03) 9391 2244
EASTERN COMMUNITY
LEGAL CENTRE
(03) 9877 5777
Gosnells
(08) 9398 1455
Northern Suburbs
(08) 9440 1663
Sussex Street
(08) 9470 2676
LAW SOCIETIES
ACT (02) 6247 5700
NSW (02) 9926 0333
NT (08) 8981 5104
QLD (07) 3842 5888
SA (08) 8229 0222
TAS (03) 6234 4133
WA (08) 9322 7877
Law Institute of VIC
(03) 9607 9311
© FAMILY COURT OF WESTERN AUSTRALIA
29/03/04
BRDiscl~V1

Notice and undertaking
This Notice is filed in accordance with Rule
13.15 of the Family Law Rules 2004.
File No.:
I
[INSERT NAME]
have read Parts 13.1 and 13.2 of the Family
Law Rules 2004
am aware of my duty to the Court and to
each other party (including any child
representative) to give full and frank
disclosure of all information relevant to the
issues in the case, in a timely manner; and
undertake to the Court that, to the best of
my knowledge and ability, I have carried
out and complied with my duty of
disclosure.
I understand the nature and terms of this
undertaking and that if I breach the undertaking,
I may be guilty of contempt of court.
SIGNATURE OF PERSON MAKING THE STATEMENT
FULL NAME OF THE PERSON MAKING THE STATEMENT
✃