Full and frank disclosure in a property dispute

In property settlement proceedings the parties are required to make full and frank disclosure of their financial circumstances. This requirement applies during pre-action procedures in accordance with Sch 1 of the Family Law Rules 2004.

Dispute resolution is a pre-action procedure wherein parties are obligated to make a genuine effort to resolve their dispute, explore possibilities of settlement and complying with the duty of disclosure. Just because a party has not specifically requested for a document is not a reason for non-disclosure.

There are dire consequences for a party who does not comply with the full and frank disclosure set out in Ch 13 of the Family Law Rules 2004 (Cth). The case of Weir and Weir (1993) FLC 92 – 338 is an example wherein the husband deliberately did not disclose that there was a sum of $100,000. The court found out about the amount and upon appeal, the court ordered the husband to pay the wife half of the amount. This is consistent with the principle that once there is deliberate non-disclosure by a party, the court should not be “unduly cautious” in making findings favourable to the innocent party.

In Black and Kellner (1992) FLC 92 – 287¸ the Court could not accurately identify the asset pool because the husband did not comply with the duty of disclosure. Thus, the husband was awarded by the trial judge with approximately 6% of the known pool. Upon appeal, the Full Family Court said that the husband was lucky to have received any adjustment at all considering his failure to make full and frank disclosure.