FAMILY COURT OF AUSTRALIA
| ANWAR & MELAT | [2020] FamCA 1071 |
| FAMILY LAW – PROPERTY – Final property orders – Where both parties seek orders for property distribution – Where the parties’ pool of assets is small – Where the husband was the primary income earner and the wife undertook homemaking and parenting responsibilities – Where neither party acknowledged the extent of the contributions of the other party – Where each party alleges non-disclosure on the part of the other party – Where the parties share the care of the parties’ children – Where the contents of the parties’ safe and the value of those contents are in dispute – Orders made for contents to be sold at an auction house and proceeds of sale distributed – Orders made for distribution of the parties’ property to be divided in the proportions of 57 per cent in favour of the wife and 43 per cent to the husband. |
| Family Law Act 1975 (Cth) ss 75, 79, 117 Child Support (Assessment) Act 1989 (Cth) Evidence Act 1995 (Cth) ss 140(1), 156(1), Dictionary pt 1 Family Law Rules 2004 (Cth) rr 13.01(1), 13.04(1), 13.14, sch 1 pt 1 cl 1(6) |
| Ashton v Pratt (No 2) [2012] NSWSC 3 Bevan & Bevan (2013) FLC 93-545 Britt & Britt (2017) FLC 93-764 Chaudhary v Chaudhary [2017] NSWCA 222 Coghlan and Coghlan (2005) FLC 93-220 DJM v JLM (1998) FLC 92-816 Drewett & Drewett [2012] FamCA 320 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Fazarri & Hsiao (No. 2) [2018] FamCA 447 Grefeld & Grefeld [2010] FamCA 504 Hadlow & Brosnan [2014] FCWA 23 Hearne v Hearne (2015) 53 Fam LR 454 Heydon v The Perpetual Executors, Trustees and Agency Co (WA) Limited (1930) 45 CLR 111 Hickey and Hickey and Attorney-general for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Hurst& Hurst (2018) FLC 93-851 Briese and Briese (1986) FLC 91-713 Efthimiadis & Efthimiadis (1993) FLC 92-361 Farnell and Farnell (1996) FLC 92-681 Kowaliw and Kowaliw (1981) FLC 91-092 Lee Steere and Lee Steere (1985) FLC 91-626 Marinko and Marinko (1985) FLC 91-609 Weir and Weir (1993) FLC 92-338 Jabour & Jabour (2019) FLC 93-898 Kennon v Kennon (1997) FLC 92-757 Kolar & Kermit [2019] FCCA 817 Livesey v Jenkins [1985] 1 All ER 106 Maine v Maine (2016) 56 Fam LR 500 Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440 Mayne & Mayne (2011) FLC 93-479 Mynatt & Siddall [2020] FamCA 40 Omacini and Omacini (2005) FLC 93-218 Petruski v Balewa (2013) 49 Fam LR 116 Quaresmini & Quaresmini [1999] FamCA 1314 S & S [2003] FamCA 905 Stanford v Stanford (2012) 247 CLR 108 Strand & Strand (No. 2) [2018] FamCAFC 247 The State of South Australia v The Commonwealth of Australia (1962) 108 CLR 130 Townsend and Townsend (1995) FLC 92-569 Trevi & Trevi (2018) FLC 93-858 Wallis & Manning (2017) FLC 93-759 Zao & Lee [2019] FamCAFC 169 |
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- AGLC
- ANWAR & MELAT [2020] FamCA 1071
- Case
- [2020] FamCA 1071
- Decision Date
CaseChat Overview and Summary
This matter concerned financial proceedings between Anwar and Melat, heard in the Federal Circuit and Family Court of Australia. The core of the dispute revolved around the parties' obligations regarding the disclosure of financial information in the context of their financial settlement.
The court was required to determine the extent of a party's duty to make full and frank disclosure of all material facts and information relevant to a financial case, particularly in light of the Family Law Rules 2004 (Cth). This included assessing whether compliance with procedural rules was sufficient to discharge this fundamental obligation and the implications of failing to meet this standard.
The court affirmed the principle, established in cases such as *Briese and Briese* and drawing on *Livesey v Jenkins*, that full and frank disclosure is a fundamental duty owed to the court and the other party in financial proceedings. This duty extends beyond merely producing documents and encompasses all information relevant to the dispute, including earnings, disposals of property, and significant changes in financial circumstances. The court noted that a failure to comply with this disclosure obligation can lead to a judicial officer taking a "robust view" regarding a party's financial position and capacity to meet orders.
The court was required to determine the extent of a party's duty to make full and frank disclosure of all material facts and information relevant to a financial case, particularly in light of the Family Law Rules 2004 (Cth). This included assessing whether compliance with procedural rules was sufficient to discharge this fundamental obligation and the implications of failing to meet this standard.
The court affirmed the principle, established in cases such as *Briese and Briese* and drawing on *Livesey v Jenkins*, that full and frank disclosure is a fundamental duty owed to the court and the other party in financial proceedings. This duty extends beyond merely producing documents and encompasses all information relevant to the dispute, including earnings, disposals of property, and significant changes in financial circumstances. The court noted that a failure to comply with this disclosure obligation can lead to a judicial officer taking a "robust view" regarding a party's financial position and capacity to meet orders.
Orders
Orders of the court
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Background
Background to the litigation
In Briese and Briese (1986) FLC 91-713 at 75,181, Smithers J applied the House of Lords decision in Livesey v Jenkins [1985] 1 All ER 106 in determining that:… in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion.(Emphasis added) His Honour further stated at 75,181:In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.(Emphasis added) In that regard, r 13.01(1) of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides that:… each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner. Further, r 13.04(1) of the Rules relevantly provides that:A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:(a) the party’s earnings, including income that is paid or assigned to another party, person or legal entity;…(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:(i) in the 12 months immediately before the separation of the parties; or(ii) since the final separation of the parties; and … Paragraph (6) of cl 1 of Pt 1 of Sch 1 of the Rules relevantly provides:(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to: …(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute. Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part).(Emphasis added) The fact that the obligation of disclosure exists as a duty to the Court, as well as the other party, is significant. It is also significant that the obligation is in respect of the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents. In Hadlow and Brosnan [2014] FCWA 23, Walters J noted at [187]:… a judicial officer is entitled to take a “robust view” in relation to findings regarding a party’s financial position (including a party’s capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su [(2002) FLC 93-117] at [71] and [72].
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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