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Trial Judge finding that party failed to disclose – rejected on Appeal


The Full Court of the Family Court recently gave Judgment in relation to a husband’s appeal against orders that had been made by the Judge at first instance. 

The orders mainly concerned property and spousal maintenance issues.  The appeal ranged over many areas which are common in many cases in which Watson & Watson act on behalf of either the husband or wife. 

The facts generally were that the husband was successful in his profession, the parties were married for approximately 17 years and had 3 children born 1997, 2000 and 2002 and there were contributions to assist the parties to acquire the assets by a loan/gift from the wife’s parents.  There were also other suggestions of loans repayable by the wife to another party, the husband’s parents had trust arrangements, and there were issues as to add backs.

The husband appealed the original decision and numerous matters were allowed on appeal.

In the case in 2016 in the Family Court of Appeal there was a discussion as to the issue as to the obligation of the husband to disclose details relating to a trust established by his parents.  The husband had fallen out with his father and some of his siblings. This was not in dispute.

The Trial Judge found that the husband had not provided proper disclosure in relation to the trust.

The husband had mentioned the interest in the discretionary trust and described it at a “nominal” value in his financial disclosure. The wife had referred to the trust as a “financial resource value not known”. The Trial Judge found that the husband had permitted a non-disclosure in his case with respect to the trust. 

The question that arises is, what is the duty of disclosure?  The Trial Judge indicated that the duty of the parties to proceedings such as this is not only to disclose what they knew, but to diligently seek to procure information which might be relevant to the determination of the case.  Interestingly neither party utilised the subpoena process to subpoena the husband’s father or siblings. 

The Trial Judge said that the husband had a primary duty to cause the Court to be informed and should have availed himself of the opportunities to use the process of the Court (for example by issuing a Summons to her parents and siblings for the production of documents) for that purpose and found that the husband failed to do that.

One of the appeal grounds was that the Trial Judge was incorrect in requiring the husband to avail himself to the opportunity to use the Summons process of the Court for that purpose. 

The Full Court of the Family Court allowed the appeal and indicated that the obligation of disclosure did not extend to using all possible process of the Court to obtain documents which were not available to him. 

Accordingly the Full Court found that His Honour’s decision was in error.

We note that it was always open to the wife’s Solicitors to issue a Summons for the production of documents if they had wished to. 

Care must be had to ensure proper disclosure of the obligations.

In this case the Full Court noted that there is a difference between inadequate disclosure which suggests the existence of an undisclosed asset and disclosure which in this particular case did not disclose the financial position of the Trust.  In this case it was not suggested to the husband in cross examination by the wife’s representatives that his failure to produce the trust deed was reflective of an undisclosed asset or benefit. 

In this particular case the issue really related to whether the documents are documents that has or have been in the possession or under the control of the party disclosing the document and is relevant to an issue in the case.  In this case the documents were not under the control of the party (husband) disclosing the documents.  The documents would have been under the control of the party (husband) if they were for example with the husband’s Lawyer, Accountant or other person of which the husband had a right to receive those documents.  This case dealt with circumstances where it was accepted by each of the parties that the husband and his father had had a falling out. 

There are many cases in which these issues arise either singularly or as part of complex issues. 

The experienced Solicitors at Watson & Watson consider and advise on these aspects on a regularly basis.  If you have any queries or particular concerns please contact the experienced Solicitors at Watson & Watson by contacting Richard Watson or his Personal Assistant Shereen DaGloria.

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