Parties to a case have a duty to make timely, full and frank disclosure of all information relevant to the issues in dispute.
There may be serious consequences for failing to disclose, including punishment for contempt of Court.
The Court’s ‘Duty of Disclosure’ brochure provides more information.
In summary, parties should promptly exchange copies of documents in their possession or control relevant to an issue in the dispute before as well as after starting a case.
✅ A schedule of assets, income and liabilities
✅ A list of documents in the party’s possession or control that are relevant to the dispute, and
✅ A copy of any document required by the other party, identified by reference to the list of documents.
Rule 13.12 sets out documents that do not need to be produced.
These include documents where there is a claim for privilege from disclosure or documents that have already been disclosed and where there has been no change likely to affect the result of the case.
✅ The party’s taxation return and taxation assessment for the most recent financial year;
✅ The party’s bank records for the previous 12 months;
✅ The party receives wage or salary payments, the party’s three most recent pay slips;
✅ The party owns or controls a business, the business’s Business Activity Statements for the previous 12 months; and
✅ Any other document relevant to determining the income, expenses, assets, liabilities and financial resources of the party.
✅ The party’s three most recent taxation returns and assessments;
✅ Documents about any relevant superannuation interest, including;
➲ The completed Superannuation Information Form;
➲ For a self-managed superannuation fund, the trust deed and the last three financial statements;
➲ the value of the superannuation interest, including how the value has been calculated and any documents working out the value;
✅ For a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04;
➲ Financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;
✅ For the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04;
➲ Any Business Activity Statements for the 12 months ending immediately before the first court date;
➲ For any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s constitution;
➲ For any trust, the trust deed;
➲ For any partnership, the partnership agreement, including amendments, and
✅ Unless the value is agreed, a market appraisal of any item of property in which a party has an interest.
Where a party is unable to produce a document for inspection, it is reasonable for the party to be required to provide written authority authorising a third party (for example, an accountant) to provide a copy of the document to the other party, where this is practicable.
Parties should agree to a reasonable place and time for the documents to be inspected and copied at the cost of the person requesting the copies.
Parties must not use a document disclosed by another party for any purpose other than to resolve or determine the dispute for which it was disclosed.
That is, in seeking the documents through the pre-action procedure, the party receiving them is considered by the Court to have given an undertaking that they will be used for the specific purposes of the case only.
Where there are disagreements about disclosure, it may be appropriate for an application to be filed with the Court.
Full and frank disclosure (emphasis added)
(1) A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:
(a) the party's earnings, including income that is paid or assigned to another party, person or legal entity;
(b) any vested or contingent interest in property;
(c) any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;
(d) any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;
(e) the party's other financial resources;
(f) any trust:
(i) of which the party is the appointor or trustee;
(ii) of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;
(iii) of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;
(iv) over which the party has any direct or indirect power or control;
(v) of which the party has the direct or indirect power to remove or appoint a trustee;
(vi) of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;
(vii) of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or
(viii) over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;
(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:
(i) in the 12 months immediately before the separation of the parties; or
(ii) since the final separation of the parties; and
(h) liabilities and contingent liabilities.
(2) Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.
(3) In this rule:
"legal entity " means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.
Note: The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case.
Source: ^ Extracted from "Before you file - pre-action procedure for financial cases" (prescribed brochure)
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.