The Family Law Amendment Act 2024 (Cth) which commenced on 10 June 2025, brought about several changes including the elevation of the duty of disclosure in financial or property proceedings from the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) into the Family Law Act 1975 (Cth). The Act now codifies the duty of disclosure for both married and de facto couples, contained in sections 71B and 90RI respectively. 

Background

The longstanding principle of “full and frank disclosure” is fundamental to family law practice in financial or property cases and there is a long line of authority highlighting its significance and the severe consequences that parties may face where there is non-disclosure.

Chapter 6 of the Rules sets out disclosure duties and these obligations remain operative, however they now sit alongside the new statutory duty contained within the Act.

What is “duty of disclosure”?

Section 71B(1) of the Act, which is mirrored in s 90RI provides:

Each party to a proceeding relating to financial or property matters of a marriage (other than proceedings on appeal) has a duty to the court and to each other party to give full and frank disclosure, in a timely manner, of all information and documents relevant to:

(a) for a party to the marriage-the issues in the proceeding that relate to financial or property matters of the marriage; or

(b) for any other party to the proceeding-so much of the party’s financial circumstances as are relevant to the issues in the proceeding that relate to financial or property matters of the marriage

The duty applies during both the pre-action stage, when parties are preparing for a proceeding relating to financial or property matters, and when proceedings commence and continue until they are finalised. The scope of the duty includes both information and documents that are relevant to the issues in the proceeding, where the production of documents alone may be insufficient unless further contextual information is provided. This includes the prescribed information and documents as listed in the Rules, but is not confined to those.

Furthermore, the duty does not only apply to a party to the marriage, but also extends to any other party to the proceeding (i.e. third parties) insofar as it is ‘relevant to the issues in the proceeding’, and litigation guardians ‘to the extent they are capable of doing so’.

Implications for non-compliance?

The amendments seek to strengthen compliance and ensure parties understand their obligations, and the legislative note at section 71B(2) explains the range of powers that can be exercised by the court to impose consequences for non-compliance such as:

• Take the non-disclosure into account when altering property interests (s 79 / s 90SM);
• Make an order with respect to costs, security for costs or any specific disclosure orders;
• Impose sanctions for contravening orders (s 112AD);
• Punish the person for contempt (s 112AP); and
• Stay or dismiss all or part of the proceedings.

Changes for legal practitioners and FDR practitioners

Legal practitioners and Family Dispute Resolution Practitioners (FDRP) are now obliged under the Act to provide clients with information about their duties of disclosure, the potential consequences of non-compliance and encourage them to take all necessary steps to comply. As expressed in the Explanatory Memorandum, this is broadly framed to encourage and support parties to understand the nature and extent of the duty, to foster awareness and compliance.

Key takeaways

The codification of disclosure in the Act strengthens and places the duty of “full and frank” disclosure at the forefront of practice. It will better ensure that proceedings are conducted in accordance with the overarching purpose and promote the early resolution of disputes. As best practice, parties should therefore:

• Understand their duty to give full and frank disclosure.  
• Start gathering disclosure early.
• Think of “all information and documents” relevant to the issues.  
• Respond promptly to any disclosure requests made by the other party.
• Continue to update disclosure.  
• Consider seeking professional assistance to ensure your disclosure is accurate and complete.

If you would like to discuss anything raised in this article or require further information around your separation or divorce, please contact us on 02 4928 7300 or email: familylaw@mullanelindsay.com.au

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