Duty of Disclosure

DUTY OF DISCLOSURE

Both you and your former partner have a duty to the court and to each other to give full and frank disclosure of all information relevant to the case, in a timely manner.

This duty begins as soon as negotiations commence, and does not subside until the case is finalised (by way of agreement between you and your former spouse, or otherwise by order of the court).

Put simply, you and your former partner will be required to make full and frank disclosure as to your respective financial circumstances, including:

  • Your earnings, and in particular your income;
  • Any interest in property – including any interest in a trust, corporation (other than a public company), trust, partnership, joint venture business or other commercial activity;
  • Any financial resources which you are benefiting from or which is otherwise held for your benefit;
  • Any interest in a superannuation fund;
  • Any property disposed of, whether by sale, transfer, assignment or gift, unless disposed of with your former partner’s consent; and
  • Any liability – including any personal guarantee or loan.

Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence (for example, punishment for contempt of court).

The court considers that you should exchange the following documents, provided the documents are in your possession or under your control:

  • A copy of your 3 most recent taxation returns and assessments;
  • Your bank records for the 12 months ending on the date when the maintenance application was filed;
  • If you receive a wage or salary payment – your 3 most recent pay slips;
  • Any other document relevant to determining your income, expenses, assets, liabilities and financial resources;
  • Any document about any superannuation information (including a superannuation information form or, in the case of a SMSF, a copy of the trust deed and the three most recent financial statements);
  • Any relevant business activity statements for the previous 12 months;
  • For any corporation which you own or control:
    • A copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;

A copy of the corporation’s most recent annual return that lists the directors and shareholders; and

A copy of the corporation’s constitution and any amendments;

  • For any trust which you own or control:
    • A copy of the financial statements for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
    • A copy of the trust deed, including any amendments;
  • For a partnership which you own or control:
    • A copy of the financial statement for the 3 most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
    • A copy of the partnership agreement and any amendments;
  • Unless the value is agreed, a market appraisal of the value of any item of property in which you have an interest; and
  • Any other document which might be relevant to an issue in your matter

Some find difficulty in providing particular documents to their former partner, particularly where there is a breakdown of trust. Rest assured, the contents of any disclosure is to be used for the purposes of the family law proceedings only, and must not otherwise be disclosed to any other person without the court’s permission.

Where a party refuses to disclose, it usually is because they are hiding something. If there was nothing to hide then a party would likely be forthcoming in the disclosure process.

Thus, where there is a refusal to disclose, we will normally undertake an investigation. For example:

  • Conducting various searches, such as title searches, ASIC name and/or company searches, and PPSR searches.
  • If proceedings have been commenced, the following can be issued:
    • A subpoena can be issued for the production of bank statements, mortgage and loan applications, credit card statements and applications, financial statements from accountants, etc.;
    • A notice to admit facts can be issued, requesting that your former partner admit a set of facts;
    • A notice to produce can be issued, requesting that particular documents be provided; and
    • Specific Questions can be put to the other side, with a requirement that they be answered in a sworn affidavit.
  • A forensic accountant can be retained to look at the financial documents and ascertain whether there are unusual dealings that might infer the existence of undisclosed assets. For example, in ‘big money’ cases, a complicated web of companies, corporate trustees, trusts, SMSF’s and offshore bank accounts.
  • A private investigator can be retained to ascertain how your former partner conducts their business and/or spends their money.

Uncovering undisclosed assets is an expensive exercise. The court also does not look favourably on people who merely go on a fishing expedition to frustrate the process. Any belief that you might have that assets are being concealed to detriment your entitlement should therefore be reasonable. If you have an ongoing suspicion that your former partner has not complied with their duty of disclosure, and they might be concealing or hiding assets, please contact our family law department for more comprehensive advice tailored to your matter.

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