The Disclosure Requirements in Family Law
In this video, solicitor Ella Leitch outlines the disclosure obligations every separating person must understand. For anyone engaging with family lawyers, the message is clear: transparency is essential. Failure to disclose relevant documents can lead to severe procedural and even criminal consequences, derail property settlements, and damage parenting matters. This article summarises the key legal duties, practical steps, and consequences explained by the solicitor, and provides a checklist and practical guidance that family lawyers recommend to clients preparing for proceedings.
Why disclosure matters to family lawyers and the court
Family lawyers view disclosure as the backbone of fair and effective family law proceedings. Disclosure is not optional; it is a legal obligation in both property and parenting matters. The requirement to provide full and frank disclosure ensures the court and the parties have the information necessary to reach just outcomes.
In property proceedings, full and frank disclosure helps the court determine the true financial position of both parties. In parenting proceedings, disclosure helps the court make decisions in the best interests of the child, often relying on school reports, medical records and other documents to build a complete picture.
What must be disclosed: types of documents
The kinds of documents that must be disclosed differ depending on whether the matter is about property or parenting, but in both categories, the scope is broad. Family lawyers advise clients to produce anything that is relevant to the issues in dispute.
Common documents for property matters
- Tax returns (individual and business)
- Pay slips and income statements
- Superannuation statements
- Bank statements and investment account records
- Documents showing ownership or interests in property, companies or trusts
- Loan agreements and mortgage documents
- Records of disposal or transfer of assets (sale contracts, transfer deeds)
- Business financial records (profit and loss statements, BAS returns)
Common documents for parenting matters
- School reports and attendance records
- Medical and mental health reports
- Reports from counsellors, psychologists or social workers
- Criminal records or police reports where relevant
- Photographs, messages or other evidence relevant to parenting issues
These lists are not exhaustive. Family lawyers recommend erring on the side of disclosure: if a document could be relevant to the court’s consideration, it should be provided.
Who has the obligation to disclose?
Every party involved in family law proceedings has an ongoing obligation to disclose relevant documents that are in their possession or control. This includes documents stored electronically, on social media, or in third-party accounts, as well as physical documents.
Importantly, control extends beyond immediate possession. If a person can obtain a document from a company they own, a family trust, or an account they manage, that document may still be within their control and required to be disclosed.
The solicitor-client relationship and disclosure
Family lawyers emphasise the fiduciary elements of the solicitor-client relationship: trust, honesty and confidentiality. For solicitors to provide accurate advice, clients must be transparent and provide all relevant documents, even those that might be uncomfortable to share. Withholding information from a solicitor undermines the capacity of legal representatives to advise properly and can lead to strategic errors.
Solicitors are bound by professional and ethical obligations to maintain client confidentiality. That protection encourages clients to disclose fully so their legal team can prepare an effective case. In short, family lawyers expect full disclosure to them so they can comply with broader disclosure duties to the court.
How the other party can force disclosure
If a party believes the other side has relevant documents that have not been produced, there are mechanisms to compel disclosure:
- Requests for production and inspection of documents during the discovery process.
- Applications to the court seeking orders for disclosure.
- Subpoenas directed to third parties (for example, banks, employers, schools) to produce relevant records.
Subpoenas are powerful tools. For example, a subpoena to a financial institution can obtain detailed bank records; a subpoena to a school can secure attendance or welfare reports. Family lawyers commonly use these tools when there is a concern that a party is withholding critical information.
Consequences of non-disclosure under current court rules
The 2021 court rules modernised and clarified many aspects of family law practice, including the consequences of non-disclosure. The penalties for failing to disclose relevant documents can be serious:
- You may not be permitted to rely on a document in court if it was not previously disclosed. This can mean critical evidence is excluded.
- The court may find a party guilty of contempt in extreme cases of deliberate non-disclosure, which can attract criminal penalties.
- Costs orders: a court may order a non-complying party to pay the legal costs of the other side.
- Applications could be dismissed or stayed because of persistent non-disclosure, delaying resolution and increasing expense.
Beyond these formal sanctions, non-disclosure undermines credibility. Judges place weight on a party’s honesty and candour. A pattern of withholding documents can damage a party’s case on substantive issues such as contributions, needs and credibility.
Practical steps recommended by family lawyers
To meet disclosure obligations and protect one’s case, family lawyers advise clients to follow a clear, methodical approach when collecting documents.
1. Create a comprehensive document list
Start with a checklist that covers financial, property, employment, business, superannuation, school and medical records. Use the lists above as a template and customise it to the specific circumstances of the matter.
2. Search all storage locations
Look for documents in physical files, email accounts, cloud storage, mobile phones, social media, and devices used in business. Include documents held by companies, trusts and associated third parties if the client can obtain them.
3. Preserve documents
Do not destroy or delete relevant records. Document preservation is critical. Family lawyers will often advise clients to retain all potential evidence once separation is on the horizon.
4. Provide everything to the solicitor early
Early and full disclosure to the legal team allows family lawyers to assess the strengths and weaknesses of the case, anticipate issues, and prepare effective requests or subpoenas if documents are missing.
5. Update disclosure as new documents emerge
There is a continuing obligation to disclose. If new information or documents are found after an initial disclosure, they must be produced to the other party and the court as soon as practicable.
What to do if you suspect the other party is not disclosing
If a party believes the other side is withholding information, family lawyers can take several steps to test the completeness of disclosure:
- Serve targeted requests for documents and seek orders for discovery.
- Apply for subpoenas to third parties to obtain records directly.
- Seek interrogatories or other court-ordered enquiries where appropriate.
- Ask the court to make adverse inferences where deliberate concealment is suspected.
Acting promptly is essential. Delays can make it harder to recover documents and can weaken the case for relief against the non-complying party.
Practical examples: how non-disclosure affects outcomes
Consider two hypothetical scenarios commonly discussed by family lawyers:
- In a property case, one party fails to disclose an interest in a company. Later, bank records and tax returns reveal income flows into a corporate account. The court excludes some late-produced documents and makes adverse cost orders, reducing the non-disclosing party’s final settlement position.
- In a parenting dispute, a parent does not disclose text messages or relevant medical reports. When those materials are later obtained by subpoena, the court questions credibility and orders additional assessment, prolonging the proceedings and potentially affecting parenting arrangements.
Both examples show how non-disclosure can create substantive and procedural harm—precisely the kinds of scenarios family lawyers seek to avoid by urging full cooperation with disclosure obligations.
How family lawyers handle disclosure in practice
Family lawyers typically begin by asking clients to compile and deliver all relevant documents. They will prepare a disclosure list, review documents for privilege and relevance, and prepare any necessary affidavit or formal list for court. If documents are missing or suspected to exist, lawyers will draft applications or subpoenas to obtain them.
Solicitors also advise clients on what to produce and what might be legitimately withheld on the grounds of legal professional privilege. Transparency with the lawyer about the existence of potentially privileged documents is important so that privilege can be properly assessed and claimed where appropriate.
Conclusion: transparency protects clients and the integrity of the process
Disclosure is not a mere administrative formality; it is a fundamental aspect of family law practice. Family lawyers consistently emphasise that providing full and frank disclosure—early and on an ongoing basis—serves the client’s best interests. It ensures proper legal advice, reduces the risk of costly sanctions, and helps the court reach just outcomes in both property and parenting matters.
Clients should treat disclosure seriously: gather tax returns, pay slips, superannuation statements, bank records, ownership documents, and any parenting-related reports or records. Preserve documents, disclose them to their lawyer promptly, and continue to update disclosure as new documents surface. Where there is concern about the other party’s disclosure, family lawyers can use requests, subpoenas and court applications to compel production.
Ultimately, the solicitor’s guidance is clear: honesty with one’s legal team is essential. Full disclosure protects a client’s legal position and protects the process that family lawyers and the courts rely upon to deliver fair outcomes.
“Provide as many documents as possible and remember you have a continuing obligation to disclose.” — Advice echoed by family lawyers and legal practitioners across family law matters.
