On 1 September 2021, the new Court, the Federal Circuit and Family Court of Australia commenced. Along with it came a whole range of new rules under the Federal Circuit and Family Court Rules that now apply to both property and parenting proceedings.
One of these rules includes an express obligation that parties have a duty of disclosure in parenting proceedings.
Rule 6.05 states:
“That parties have a duty of disclosure in parenting proceedings and this disclosure extends to providing the other side information or documents that are relevant to the issue of risk or the parenting dispute.”
TYPES OF DOCUMENTS INCLUDED IN THE DUTY OF DISCLOSURE
Documents that could contain information relevant to a parenting proceeding may include, but are not limited to the following documents:
- Criminal records of a party; and
- Documents filed in intervention order proceedings concerning a party; and
- Medical reports about a child or party; and
- School reports.
WHEN THE DUTY OF DISCLOSURE APPLIES
This duty or obligation commences after separation when you are engaged in mediation or trying to resolve your parenting dispute. This means that the duty doesn’t just kick into effect when you find yourself at Court if you are unable to resolve your parenting dispute through mediation.
The duty continues to apply until your parenting dispute resolves, either by consent or through negotiation or after a final hearing.
WHAT DOES THIS DUTY MEAN IN PRACTICAL TERMS?
CRIMINAL OFFENCE
If you are charged with a criminal offence, you will need to disclose the charge to the other side and you may also need to provide the court attendance notice and a copy of the police facts. You will also need to inform the other side of the Court where your criminal matter is listed and the file number. As the matter progresses, you may also need to provide a copy of the police brief of evidence that has been served on you by the police.
APPREHENDED VIOLENCE ORDER
If you have been served an apprehended violence order, you will need to inform the other side and provide a copy of the provisional or final apprehended violence order to the other side.
MENTAL HEALTH CONDITION
If you are diagnosed with a mental health condition, you may need to disclose the diagnosis and the treatment plan to the other side, along with the details of your treating mental health practitioner.
CHILD NEEDING TO ATTEND A MEDICAL SPECIALIST
If your child has had to attend upon a medical specialist, you will need to inform the other side and provide copies of any letter or report issued by the medical specialist as well as the contact details of the medical specialist.
CHILDREN’S ACADEMIC RESULTS
If your child has had their NAPLAN or school report sent home, you may need to provide a copy of them to the other side.
OTHER SITUATIONS
Every situation and the family circumstances are different, so there may be additional documents and information that you are required to provide to the other side that are not included in the above scenarios.
This isn’t legal advice, and you should seek legal advice about your specific situation and your obligations to comply with your duty of disclosure in parenting matters.
SAFETY AROUND DUTY OF DISCLOSURE
It is especially important to seek legal advice if, due to safety or family violence reasons, the other side do not know where you live or where the child attends school.
There can also be a risk if you provide the details of the next medical or mental health appointment. Family violence survivors should definitely seek legal advice before providing information or any document to the other side.
BREACHING A DUTY OF DISCLOSURE
If you breach your duty of disclosure without a reasonable explanation, adverse consequences can flow as a result. None of them are good. So, make sure you comply or seek legal advice if you believe you have a reasonable excuse as to whether you are unable to comply.
FAMILY LAWYERS AND DUTY OF DISCLOSURE
Importantly, if you instruct your lawyer of an incident or a document that exists that should be disclosed to the other side AND you instruct your lawyer NOT to inform the other side – under the Rules, your lawyer MUST stop representing you.
This has always been an ethical obligation that falls on a lawyer in this situation, but now it is an express rule to help people understand the ethical framework and obligations that apply to family lawyers.
TO CONCLUDE
The commencement of the Federal Circuit and Family Court of Australia signals a fresh commitment for all stakeholders in the family law space. It will assist separated parties to resolve their parenting and property disputes.
