Providing financial disclosure is often one of the first steps you will take in a family law property matter. This generally involves swapping financial documents with your ex-partner such as tax returns, payslips, superannuation statements and bank statements and is aimed at helping you and your ex work out what your financial circumstances are, before you (or the Court) work out who is going to get what in your property settlement.
Both you and your ex-partner have an obligation to provide these documents to each other and disclosure should be a relatively straightforward process. However, it can get tricky if one person does not want to provide certain information because they do not have it, believe the other person is not entitled to it, or are simply trying to hide something.
The recent case of Stradford & Stradford [2019] FamCAFC 25 is an extreme example of what can happen if a person is not meeting their disclosure obligations. In this case, the wife alleged that the husband was withholding information in relation to his business interests. The husband disputed this and stated that he simply did not have access to those documents, and had provided everything that he could provide. The wife then obtained specific orders from the Court requiring that the husband provide her with certain documents.
The Judge first hearing the matter took an extreme view about disclosure, particularly when someone has been Court Ordered to provide particular information to the other person. Having commented that he did not “have any hesitation in jailing people for not complying with my Orders,” the Judge told the husband that if the wife continued to assert she was missing documents after a short adjournment, the husband had “better bring his toothbrush” to Court. Hearing these comments, the wife repeatedly asked the Judge not to send the husband to prison, as she was concerned about the effect this would have on the parties’ young children. Notwithstanding that the wife did not want the husband imprisoned, the Judge ultimately decided to sentence the husband to 12 months imprisonment for contempt of court. The husband was taken straight from court to a maximum security prison.
While on appeal the Full Court overturned this judgment, finding that the imprisonment constituted a gross miscarriage of justice, it does serve to remind those involved in a family law property settlement that financial disclosure is something to be taken seriously. Usually, disclosure issues can be resolved in a less dramatic fashion through issuing of subpoenas, conducting searches, and obtaining Orders for the production of particular documents.
If you have separated or are considering a separation and would like advice about your particular circumstances, call us to make an appointment on (02) 6225 7040 or send us an email at admin@rmfamilylaw.com.au.