Section 90RI — Family Law Act 1975 (Cth)

Duty of disclosure in proceedings

(1) Each party to a proceeding relating to financial or property matters of a de facto relationship (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 relationship—the issues in the proceeding that relate to financial or property matters of the relationship; 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 relationship.

(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 90SM (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 de facto relationship are preparing for a proceeding relating to financial or property matters of the relationship (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 relationship.

(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 relationship

(7) Any of the following matters, so far as they relate to a de facto relationship, are financial or property matters of the relationship:

(a) financial matters;

(b) matters that are or might become the subject of proceedings in a de facto financial cause;

(c) matters that are or might become the subject of proceedings under any of the following provisions of this Act:

(i) Division 7 of Part VII (child maintenance orders);

(ii) this Part (orders with respect to the maintenance of a party, or the property of the parties, to the relationship), other than Subdivision C of Division 1 (declarations about existence of de facto relationships);

(iii) section 90UM (orders setting aside a financial agreement or a termination agreement);

(iv) Part VIIIB (orders with respect to allocation of superannuation interests);

(v) section 106B (orders with respect to instruments or dispositions to defeat an existing or anticipated order in proceedings under this Act);

(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 and 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 de facto relationship 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.

Related sections

• s 90RF — Applying for declarations
• s 90RG — Geographical requirement
• s 90RH — Setting aside declarations
• s 90SA — This Division does not apply to certain matters covered by binding financial agreements
• s 90SB — When this Division applies—length of relationship etc.
• s 90SC — This Division ceases to apply in relation to a de facto relationship if the parties marry each other

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