Parties to a property matter have a duty to make full and frank financial disclosure in a timely manner. All documents that are within a parties’ possession, power or control that are relevant to the case must be disclosed. This includes information recorded in a paper document or stored by some other means (such as electronically) and also includes documents that the other parties may not know about.
The duty of financial disclosure starts before proceedings are started and continues until the case is finalised. It is an ongoing obligation which means that financial disclosure needs to be updated throughout the course of the proceedings.
As part of the duty to provide full and frank financial disclosure, each party needs to provide details of all sources of earnings, interest, income, property (vested or contingent interests) and other financial resources.
This applies whether the property, financial resources and earnings are owned by the party directly, or go to some other person or beneficiary (for example, the party’s child or de facto partner) or are held in corporations, trusts, company or other such structures. Each party also needs to disclose information about any property disposal (whether by sale, transfer, assignment or gift) that was made in the year immediately before the separation of the parties or since the final separation and that may affect, defeat or deplete a claim.
There are serious consequences for failing to comply with the duty to provide full and frank financial disclosure, including:
- The Court finding the non-disclosing party guilty of contempt for not disclosing and issuing a fine or imprisonment;
- The Court ordering the non-disclosing party to pay costs;
- The Court ordering the non-disclosing party to stay or dismiss all or part of that party’s case;
- The Court preventing you from relying on certain evidence in your case.
If a party does not provide full and frank financial disclosure, the methods of obtaining that information includes the following:
- Conducting searches of publicly available records such as Land and Property Information and ASIC;
Issuing a Subpoena to Produce Documents;
- Making a request for answers to specific questions;
- Issuing a Notice to Produce;
- Obtaining an Order from the Court for that party to produce documents or information.