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Disclosure in parenting cases

Information about what you need to disclose to the other parent during your parenting case.

Duty of disclosure

If you and your ex-partner are following the pre-action procedures, you both have a general duty to provide full and frank disclosure of all information relevant to your case in a timely manner. This includes any documents that are:

  • in your possession or under your control, and
  • relevant to an issue in your case.

This may include:

You don’t have to provide your ex-partner with a copy of any documents that:

  • are privileged (legally protected and confidential)
  • are is no longer in your possession or control
  • you have already provided, as long as they haven’t been changed or marked in a way that is likely to affect the outcome of your case.

This is an ongoing duty that you must fulfil when you begin the pre-action procedures, and through your case until it is finalised.

Relevance

You only have to disclose, and can only request, information or documents that are relevant to an issue in your case.

Information or documents may be relevant to an issue if they help explain an issue or help the court to make a decision about an issue that is not agreed. ‘throw light’ on an issue or materially assist the court to decide an issue.

When making a request for disclosure, it is important that you only ask for information and documents that are relevant to the issues in your case. You can’t request additional information, regardless of whether it is relevant, simply because you would like it. There is a general expectation by the court that the disclosure process will only be used to identify relevant documents and not to conduct a fishing expedition.

Similarly, when providing disclosure, you should only provide the information and documents that are relevant to the issues in your case. You are not complying with your duty by dumping a large number of documents on your ex-partner, regardless of whether they are relevant, and leaving it up to them to sort through the documents.

Use of disclosure

You can only use the information and documents you receive through the disclosure process for your case. You can’t share the information or documents you receive with anyone unless you get the court’s permission or you are providing them to your solicitor or counsel.

The court can make orders limiting who can inspect documents if you are concerned about:

  • the extremely sensitive contents of a document, for example, hospital notes or medical records
  • a real risk that a document would be used for an improper purpose.

Undertaking

If your case goes to court, you must file an Undertaking as to disclosure before the first court date. An undertaking is a promise to the court to do (or not do) something and is as binding as a court order. A breach of an undertaking is treated the same way as a breach of an order.

This undertaking states that:

If you sign an undertaking that you know, or should reasonably have known, is false or misleading, this is an offence. If you commit this offence, you can be fined.

If you breach your undertaking, you may be committing the offence of contempt of court. If you are found guilty of contempt of court, you can be:

  • given a bond
  • fined
  • sentenced to imprisonment.

The court may also make a costs order against you.

If you are concerned about signing an undertaking as to disclosure, you should get legal advice.

Failure to disclose documents or information

The duty of disclosure is necessary to ensure the court has all the relevant information to make orders that are in the best interests of your child.

If you don’t comply with your duty, the court can:

  • set aside your consent orders
  • stay or dismiss all or part of your case
  • assume that the documents you have not disclosed would have hurt your case
  • make a costs order against you
  • fine you
  • send you to gaol.

If your case goes to a final hearing, you won’t be allowed you to use undisclosed documents or information as evidence without the court’s permission or your ex-partners agreement.

How the court responds to non-disclosure will depend on:

  • the degree of non-disclosure
  • the time when it was discovered
  • whether there is any doubt about the relevance of the information or document not disclosed.

For more information, see Duty of disclosure on the Federal Circuit and Family Court of Australia website.

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