Key Takeaways
- Full and frank disclosure means sharing your total direct and indirect financial circumstances, including assets held through companies or trusts.
- The duty starts before a case begins and continues until it's finalised, and it covers property you disposed of in the year before separation.
- Failing to disclose can lead to cost orders, a dismissed case, contempt of court, or orders being set aside later.
- For Consent Orders, complete and current figures help the Registrar decide the settlement is just and equitable.
What Is Full and Frank Disclosure?
Full and frank disclosure is the legal duty to give your ex and the Court the full picture of your finances. The Federal Circuit and Family Court of Australia says the duty applies in financial, property and parenting cases. In financial matters, it covers your total direct and indirect financial circumstances.
That reaches well beyond your bank balance. The Court's duty of disclosure guidance says you must disclose:
- Earnings and income: all sources of earnings, interest and other income.
- Property: vested or contingent interests and other financial resources.
- Structures: assets held in companies, trusts or by another person on your behalf.
- Disposals: any property sold, transferred, assigned or gifted in the year before separation, or since final separation.
The duty starts with the pre-action procedure and continues until the case is finalised. If your circumstances change or new documents come into your possession, you must keep providing that information.
Does Full and Frank Disclosure Apply to Consent Orders?
Yes. Even when you've agreed, the Court can only make financial or property orders if they're just and equitable. The Registrar decides that from the information in your application, which includes a Statement of Truth lodged within 90 days of the first signed Statement of Truth.
Superannuation has extra requirements. If either of you has a superannuation interest, these apply:
- The value of any superannuation interest must be current, dated not more than 3 months before your application.
- If you're seeking a splitting order, you must attach proof of value, such as the latest member statement.
- If the order binds the fund's trustee, you must give the trustee written notice at least 28 days before filing.
Financial Document Checklist
Gather your documents before drafting starts. These are the records most settlements rely on, and recent figures keep your application accurate.
| Category | Documents to gather |
|---|---|
| Income | Tax returns, notices of assessment, payslips, investment and rental income records |
| Bank accounts and cards | Statements for savings, transaction, credit, debit and store card accounts |
| Home and property | Valuations, title documents and mortgage statements |
| Loans and debts | Statements showing current balances |
| Superannuation | Latest member statements, with a value dated within 3 months of filing |
| Business and trusts | Profit and loss statements, balance sheets, trust deeds and business tax returns |
| Vehicles and other assets | Registration papers, share and investment statements, valuations |
The Undertaking About Disclosure
In court proceedings, the Rules require each party to file an undertaking before the first court date. It's a formal promise, and the Court takes it seriously.
- You confirm you've read section 71B or 90RI of the Family Law Act and the disclosure rules.
- You confirm you know your duty to give full and frank disclosure of all relevant information in a timely manner.
- You undertake that, to the best of your knowledge and ability, you've complied with that duty.
- You acknowledge that breaching 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's false or misleading.
Disclosure in Parenting Matters
The duty isn't only about money. Rule 6.05 requires full and frank disclosure of all information relevant to a parenting case, at every stage. What's relevant depends on your situation, and the Court's examples include:
- Medical reports about a child or parent
- School reports
- Letters and drawings by the child
- Photographs or a diary
What Happens if You Don't Disclose?
The consequences can be serious. The Court's guidance says that if you fail to disclose, don't file an undertaking or file a false one, the Court may:
- Refuse to let you use that information or document as evidence.
- Stay or dismiss all or part of your case.
- Order costs against you.
- Fine or imprison you if you're found guilty of contempt of court.
Approved orders can also be reopened. Suppression of evidence, including failing to disclose relevant information, is a recognised ground for setting aside property orders.
In Trustee of the Bankrupt Estate of Hicks & Hicks [2018], the parties filed an Application for Consent Orders in August 2011 without disclosing debts of $606,000. The orders were set aside because of a miscarriage of justice.
Disclosure for Consent Orders vs Binding Financial Agreements
Both options need honest financial information, but they work very differently. A Binding Financial Agreement is private, while Consent Orders are approved by the Court.
| Feature | Consent Orders | Binding Financial Agreement |
|---|---|---|
| Court approval | Approved by the Court, so the settlement must be fair to both parties | A private agreement, not approved by the Court |
| Legal advice | You only need one lawyer to prepare them | Each of you needs independent legal advice for it to be binding |
| Parenting | Can cover parenting arrangements | Financial matters only |
| Spousal maintenance | Can't permanently finalise it on their own | Can permanently finalise it |
| Cost | Generally simpler and more affordable | Generally a bigger investment |
How The Legal Drafter Helps You Get Disclosure Right
A missing detail or a wording mistake can set your settlement back by months. Melita Lloyd has 15+ years in family law, and we've prepared nearly 2,000 Consent Orders, so we know which details cause delays.
- A $1,980 fixed fee for our Rapid Consent Orders Package
- Consent Orders ready to sign in 24 hours (guarantee terms apply)
- Property settlement terms and superannuation splits included
- Unlimited calls and emails with rapid response
Frequently Asked Questions
What does full disclosure mean in family law?
It means giving the other party and the Court all information relevant to the issues, including documents the other party may not know about. In financial matters, you must disclose your total direct and indirect financial circumstances, and keep providing information as your circumstances change until the matter is finalised.
What if my ex won't provide financial disclosure?
Both parties owe the duty. If your ex doesn't comply, the Court can refuse to let them use that information as evidence, order costs, or find them in contempt. Get legal advice before you sign anything, so you're comfortable you have the full picture of what's in the pool.
What are the disclosure requirements in Australia?
In court proceedings, the requirements come from section 71B or 90RI of the Family Law Act and Chapter 6 of the Family Law Rules 2021. You file a Financial Statement, sometimes an affidavit with further particulars, and an undertaking that you've complied. Disclosure is complex, so get legal advice.
Do I need to disclose property I gave away before separation?
Yes, where it may affect or deplete a claim. The Court's guidance requires disclosure of any property disposal, whether by sale, transfer, assignment or gift, made in the year immediately before separation or since final separation. If you're unsure whether something counts, ask a lawyer before you file.
Get Your Consent Orders Drafted for a Fixed Fee
Ready to finalise your settlement with the right paperwork? Book your free call or ring us on 0416 280 901. The 15-minute Rapid Settlement Call is a $197 value and comes with no obligation.
This article is general information only and isn't legal advice.
