Failing to disclose a document in property division proceedings

Among the many grounds of appeal the husband argued in the recent case of Masoud and Masoud the Full Court of the Family Court was required to consider whether the husband failed to disclose certain financial documents, namely in relation to a family trust that he was a discretionary beneficiary of.

The husband mentioned in his evidence that he was a discretionary beneficiary of the trust, but did not produce any documents. Under cross examination he said he had asked family members for the documents but they refused to provide them to him.

Rule 13.01 of the Family Law Rules 2004 imposes a general duty to give full and frank disclosure but Rule 13.07 narrows the duty to "each document that is or has been in the possession, or under the control of the party".

The Full Court referred to the case of Schweitzer & Schweitzer where it was said that a beneficiary of a discretionary trust "is entitled to access to the financial documents of the trustees only for the purpose of ascertaining that there is due administration [of the trust]".  

Therefore, the Full Court concluded, the documents could not be said to be in the requisite possession or control of the husband.

Having succeeded on this ground of appeal (among others) the Full Court concluded that there was a flawed foundation for the trial judge's Orders. The matter will now be re-determined.