APRIL 2017 UPDATE #1

In a decision handed down by Justice Brown sitting in the Federal Circuit Court of Australia in the case of Haggerty & Brown[2013}FCCA, the following was stated:

125. The parties to property proceedings, brought under the Family Law Act, in this court, are under a duty to make a “full and frank disclosure” of their financial circumstances[ This duty has been described as being “fundamental to the whole operation of the Family Law Act in financial cases...”.[
126.

In Weir & Weir the Full Court of the Family Court said as follows:

o “...the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contributions, or to properly assess section 75(2) factors.”

127. Accordingly, the duty to make a full and frank disclosure, in financial matters brought under the Family Law Act , does not arise merely by virtue of the rules or practice of the court but rather is a fundamental rule of law, which arises because of the necessity for the court, in each property proceeding arising before it, to consider all aspects of the financial circumstances of the parties concerned.
128. In appropriate cases, there may be adverse consequences for a party, if it can be shown that he or she has deliberately failed to make a proper disclosure of some material financial fact. Such a non-disclosure may result in the court drawing an adverse inference against the party, who has not made a proper disclosure.
129.

In Weir & Weir the Full Court said as follows:

o “It seems to us that once it has been established that there has been a deliberate non-disclosure...then the court should not be unduly cautious about making findings in the favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature...We should have thought that the courts jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.”

A prospective client recently came to see me and his opening question was surrounding what would happen if he failed to disclose an asset. I warned him immediately that our discussion should not proceed much further. Quite apart from the manner in which a Court deals with this particular issue as noted in the above quotation, what is often not known to a client is the obligation a lawyer has to the court.

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