71BDuty of disclosure

#### 71B Duty of disclosure Duty of disclosure in proceedings (1) 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. (2) The duty under subsection (1) applies from the start of the proceeding and continues until the proceeding is finalised. > Note: Courts have a range of powers that may be exercised to impose consequences when a person fails to comply with their duty of disclosure. For example, a court might do any of the following: (a) take the failure into account when making an order under section 79 (alteration of property interests); (b) make any orders with respect to costs or security for costs against the person that the court considers just, having regard to the failure; (c) make any orders with respect to disclosure that the court considers appropriate; (d) if an order made by the court is contravened—impose sanctions under section 112AD; (e) punish the person under section 112AP for contempt; (f) stay or dismiss all or part of the proceedings. (3) If a party has a litigation guardian, the duty under subsection (1) is taken to have been complied with if the litigation guardian complies with the duty to the extent they are capable of doing so. (4) The duty under subsection (1) does not apply to the respondent to an application that alleges a contravention of a court order or a contempt of court in relation to that application. Duty of disclosure while preparing for proceedings (5) If separated parties to a marriage are preparing for a proceeding relating to financial or property matters of the marriage (other than proceedings on appeal), each party has a duty to the other party to give full and frank disclosure, in a timely manner, of all information and documents relevant to the issues in the proposed proceeding that relate to financial or property matters of the marriage. (6) The duty under subsection (5) applies at any time while the party is preparing for the proceeding. > Note: If proceedings are instituted, consequences, as mentioned in the note beneath subsection (2), may apply to a person who has failed to comply with their duty of disclosure under subsection (5). Financial or property matters of the marriage (7) Any of the following matters, so far as they relate to a marriage, are financial or property matters of the marriage: (a) financial matters; (b) matters that are or might become the subject of proceedings under any of the following provisions of this Act: (i) this Part (orders with respect to spousal maintenance or the property of the parties to the marriage); (ii) section 90K (orders setting aside a financial agreement or a termination agreement); (iii) Part VIIIB (orders with respect to allocation of superannuation interests); (iv) section 106B (orders with respect to instruments or dispositions to defeat an existing or anticipated order in proceedings under this Act); (c) matters that are or might become the subject of proceedings relating to the distribution, after the breakdown of the marriage, of any vested bankruptcy property in relation to a bankrupt party to the marriage; (d) matters that are or might become the subject of proceedings under any of the following provisions of the Child Support (Assessment) Act 1989: (i) section 116 (orders for departure from administrative assessment in special circumstances); (ii) section 123 (orders for provision of child support otherwise than in form of periodic amounts paid to carer); (iii) section 129 (orders modifying orders under section 123A or 124). Relevant information and documents (8) A party’s duty to disclose information and documents is a duty to disclose information known to the party and documents that are or have been in the possession or under the control of the party. (9) A party’s duty to disclose information and documents includes any information or documents prescribed by the applicable Rules of Court for the purposes of the duty. > Note: The duty to disclose is not limited to prescribed information and documents. The applicable Rules of Court may also prescribe other matters in relation to the duty of disclosure. Practitioners’ obligation to provide information etc. (10) A legal practitioner or family dispute resolution practitioner who engages with a separated party to a marriage who is or might be subject to the duty in subsection (1) or (5) must: (a) provide the party with information about: (i) the duties of disclosure under this section and explain the circumstances in which they apply; and (ii) potential consequences of the party not complying with the duties; and (b) encourage the party to take all necessary steps to comply with the duties.