FAMILY LAW - STAY APPLICATION - the wife seeking to stay the execution of a warrant of possession over the property - parties consented to the dismissal without an adjudication on the merits.

DISCLOSURE - the wife alleges the husband has failed to disclose various documents - orders previously made for disclosure had not been complied with - held, husband must provide exhaustive disclosure within 14 days and if he is non-compliant will be required to show cause as to why his amended response should not be stayed until he provides adequate disclosure.

Family Law Act 1975 (Cth) ss 71B, 79, 90AF, 90SM, 114

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 15.07

American Cyanamid v Ethicon Ltd [1975] UKHL 1; [1975] AC 396

Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board (Qld) (No 1) (1982) 57 ALJR 425

Bacall v Zagar [2020] FamCA 350

Barker v Barker [2007] FamCA 13; (2007) 36 Fam LR 650.

Black v Black [2008] FamCAFC 7; (2008) 38 Fam LR 503

Bunbury v Fuller [1853] EngR 768; (1853) 156 ER 47

Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380

Chang v Su [2002] FamCA 156; (2002) 29 Fam LR 406

DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226

DMW v CGW [1982] HCA 73; (1982) 151 CLR 491

Epitoma Pty Ltd v Australian Meat Industry Employees' Union (No 2) [1984] FCA 202; (1984) 3 FCR 55

Federated Engine-Drivers and Fireman's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; (1911) 12 CLR 398

Flight v Robinson [1844] EngR 826; [1884] 50 ER 9

Hancock & Hancock [2023] FedCFamC1F 429

Hazeldell Ltd v The Commonwealth [1924] HCA 36; (1924) 34 CLR 442

In the Marriage of Black & Kellner (1992) 12 Fam LR 343

In the Marriage of Briese [1985] FamCA 23; (1985) 10 Fam LR 642

In the Marriage of Giunti [1986] FamCA 15; (1986) 11 Fam LR 160

In the Marriage of Kannis [2002] FamCA 1150; (2002) 30 Fam LR 83

In the Marriage of Mezzacappa [1987] FamCA 20; (1987) 11 Fam LR 957

In the Marriage of Monte [1986] FamCA 1

In the Marriage of Morrison [1994] FamCA 153; (1994) 18 Fam LR 519

In the Marriage of Stein [1986] FamCA 27; (1986) 11 Fam LR 353

In the Marriage of Suiker [1993] FamCA 141; (1993) 17 Fam LR 236

In the Marriage of Weir [1992] FamCA 69; (1992) 16 Fam LR 154

Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161

Investec Bank (Australia) Ltd v Glodale Pty Ltd [2009] VSCA 97; (2009) 24 VR 617

Jess & Jess (No 7) [2023] FedCFamC1F 291

Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366

National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VicRp 31; [1991] 1 VR 386

Norton v Locke [2013] FamCAFC 202; (2013) 50 Fam LR 517

Official Trustee in Bankruptcy v Nedlands Pty Ltd (In liq) [2000] FCA 599; (2000) 99 FCR 554

Old UGC Inc v Industrial Relations Commission of New South Wales [2006] HCA 24; (2006) 225 CLR 274

Oriolo v Oriolo [1985] FamCA 54; (1985) 10 Fam LR 665

Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25

Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398

R v Gray; ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351

R v Ross-Jones; ex parte Green [1984] HCA 82; (1984) 156 CLR 185

Re Macks; ex parte Saint (2000) 204 CLR 158

Robins v Incentive Dynamics Pty Ltd [1999] FCA 1651; (1999) 91 FCR 423

Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283

Tarok & Kardan (No 4) [2024] FedCFamC1F 543

Waterman & Waterman [2017] FamCAFC 23

Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293

Yunghanns v Yunghanns [1999] FamCA 64; (1999) 24 Fam LR 400

Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

THE COURT ORDERS BY CONSENT THAT the wife's application in a proceeding sealed 10 October 2025 is dismissed without an adjudication on the merits.

1. By not later than noon on Tuesday, 4 November 2025, the husband must provide exhaustive disclosure of the documents set out in the wife's letter dated 16 October 2025.
2. The further hearing of this proceeding is listed for mention at 9.30am on Wednesday, 5 November 2025, at which time if the husband fails, refuses or neglects to comply with paragraph 1 of these orders, he will be required to show cause as to why his amended response dated 14 August 2025 should not be stayed until he provides adequate disclosure.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Khosrow & Khosrow has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By application in a proceeding sealed 10 October 2025, the wife applied for orders staying the execution of a warrant of possession issued by B Bank on 22 September 2025 in relation to real property situated at and known as C Street, Suburb D in the State of Victoria ("the property").
2. The wife also sought orders for the sum of $50,000 to be paid to her as a part property settlement. She sought a 30 day reprieve by which she could vacate the property.

1. After negotiations, counsel for the wife and counsel for B Bank reached an accommodation to the effect that the wife's stay application would be dismissed without an adjudication on the merits. Had that accommodation not been reached, I would have dismissed the wife's application to stay the execution of the warrant of possession. I make orders for disclosure as sought by the wife.

1. The wife's former husband is the sole registered proprietor of the property. B Bank is the holder of registered mortgage [...] dated [...] September 2022. The wife lodged caveat [...] asserting an equitable interest in the property pursuant to "an implied, resulting or constructive trust". In her affidavit made 10 October 2025, the wife deposed to living at the property with her two children, one aged 15 and the other 20, each of whom she deposed to still being at school.
2. In August 2022 the husband entered into a loan agreement with B Bank in respect of an advance by B Bank to him of the sum of $716,000. The husband defaulted in his repayment obligations under that loan facility leading to B Bank commencing a proceeding in the Supreme Court of Victoria in mid-2024 ("the mortgage recovery proceeding"). In the statement of claim in the mortgage recovery proceeding B Bank alleged that by November 2023 the husband was in default under his loan with B Bank with the consequence that all sums were due and payable to B Bank, namely $771,166.12 and that B Bank claimed to be entitled to possession of the property.
3. In mid-2024 B Bank entered default judgment against the husband for payment of the sum of $771,166.12 and for an order pursuant to which B Bank was to recover possession of the property.
4. In late 2024 B Bank issued a warrant of possession directing the sheriff to take possession of the property.
5. By agreement, B Bank postponed the eviction of the applicant to a date not earlier than [...] March 2025. Subsequently, in May 2025 the eviction of the applicant was cancelled.
6. In early 2025 the husband as vendor entered into a contract for the sale of the property to one Mr E as purchaser for the contract price of $930,000.
7. According to B Bank's solicitor, who filed an affidavit on the return of the wife's application, the debt currently owing to B Bank by the husband is $851,792.85 with interest accruing at the rate of $125.79 on a daily basis.
8. The wife has asserted in her 10 October 2025 affidavit that the sale price of $930,000 is $400,000 below its fair market value based on comparable local sales. She adduced no evidence to support her contention that the sale price of $930,000 was $400,000 less than the fair market value of the property and she adduced no evidence of comparable sales.
9. Prior to the commencement of the application today, B Bank opposed the wife's applications returnable today. Two principle grounds were advanced by B Bank, namely -

(a) this court ("FCFCOA") does not have jurisdiction to order a stay of an order made by the Supreme Court of Victoria; and

(b) if, contrary to that contention the FCFCOA does have jurisdiction to stay an order made by the Supreme Court of Victoria, then in all the circumstances the order made by the Supreme Court of Victoria should not be stayed.

1. In essence, B Bank was contesting this court's jurisdiction to interfere with an order made by another court. Counsel for B Bank addressed written submissions on the jurisdiction of the FCFCOA to make orders staying a judgment or writ issued in the Supreme Court of Victoria. It became necessary to address this court's jurisdiction in such circumstances. I examined the authorities on the question of ascertaining jurisdiction in very considerable detail in Jess & Jess (No 7).[1] The more important matters relevant to the issue in this case may be shortly stated in the following manner -

(a) the very first duty of any court approaching a cause before it is to consider its jurisdiction;[2]

(b) even if parties do not raise any issue about the court's jurisdiction, it is competent and proper for the court to do so of its own motion;[3]

(c) parties cannot consent to jurisdiction if jurisdiction does not exist;[4]

(d) where highly contested questions of fact arise upon which the court's authority depends, the grant of jurisdiction carries with it the power to determine facts upon which the jurisdiction of the court depends;[5]

(e) even if a court determines that it has no jurisdiction to determine the controversy presented in the contested application before it, then in the exercise of its implied jurisdiction it has authority to stay or dismiss the proceeding for want of jurisdiction and to go on to make a costs order;[6]

(f) authority of the Full Court of the Family Court of Australia is to like effect as is the proposition in the immediately preceding paragraph;[7] and

(g) the Full Court decision in Yunghanns v Yunghanns drew a distinction between jurisdictional facts as opposed to adjudicational facts, the difference being explained in seven propositions[8] which drew on the observations of the High Court in DMW v CGW[9] as well as in R v Ross-Jones; ex parte Green[10] in the following terms -

"(1) Before making orders in proceedings (including interlocutory orders) the Family Court of Australia, as a court of limited jurisdiction, must be satisfied:

(a) that it has jurisdiction to make those orders in the proceedings; and

(b) that it is appropriate to exercise that jurisdiction by making those orders on the facts of the case as then known to it.

(2) The Court always has jurisdiction to entertain proceedings for the purpose of and up to the point of deciding whether it has jurisdiction to make the orders sought in the proceedings.

(3) In carrying out that limited exercise of jurisdiction, the Court is required to determine any essential facts upon which the existence of its jurisdiction to make the orders sought ultimately depends (the jurisdictional facts). That determination is a function which is incidental to the exercise of the jurisdiction referred to in (2) above.

(4) Where, from the very nature of the proceedings and the relief claimed, the substantive proceedings prima facie fall within the definition of 'matrimonial cause' in s 4(1) of the Act, the jurisdiction to determine the jurisdictional facts, as an incident of determining whether it has jurisdiction to make the orders, is itself a matrimonial cause, and therefore within the exclusive jurisdiction of the Court.

(5) There is a distinction between the jurisdictional facts, as defined under (3), above, and the facts the existence of which it is necessary to establish in order to entitle the applicant (subject to discretionary considerations) to an exercise in his or her favour of the jurisdiction which the Court has (the adjudicational facts).

(6) Once a respondent challenges the Court's jurisdiction to make the orders sought, the Court, before considering the adjudicational facts, must find the existence of the jurisdictional facts, on the balance of probabilities.

(7) However, once that threshold of jurisdiction is crossed, in the case of interlocutory proceedings (at least where what is sought is an injunction in the same or similar terms to the permanent injunction sought in the substantive proceedings) the Court, before making an order, does not need to find the existence of the adjudicational facts, but only that there is a serious issue to be tried as to their existence, and that the balance of convenience supports the making of the order: American Cyanamid v Ethicon Ltd,[11] Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board (Qld) (No 1),[12] Tableland Peanuts Pty Ltd v Peanut Marketing Board[13] and Epitoma Pty Ltd v Australian Meat Industry Employees' Union (No 2).[14]"

1. Having regard to the authorities surveyed immediately above, it would otherwise have become necessary for me to determine the question whether the FCFCOA possessed jurisdiction to hear and determine a contested application about whether it may stay an order made by another court.
2. The starting point in that analysis is an examination of the provisions of the Family Law Act ("FLA") and the Federal Circuit and Family Court of Australia Act ("FCFCOAA") for provisions concerning staying orders made by other courts.
3. Neither the FLA nor the FCFCOAA contain an express provision conferring power on the FCFCOA to make an order staying an order made by another court.
4. In the absence of express jurisdiction, the next inquiry would have been whether the FCFCOA possessed inherent jurisdiction to make an order staying an order made by another court. In my view, the answer is in the negative. Like the Federal Court of Australia, the FCFCOA is a statutory court of limited inherent jurisdiction, mostly being limited to controlling its own processes and preventing abuse of its own processes. Various observations were made by the High Court in DJL v Central Authority[15] about a statutory court being possessed of inherent jurisdiction. Having regard to the fact that -

(a) no express statutory provision exists in the FLA or in the FCFCOA governing the power of the FCFCOA to make an order staying the operation of an order made by another court; and

(b) the FCFCOA, being a court created by statute, possesses very limited inherent jurisdiction, namely, power to control its own process and to prevent abuse of its own process

in my view the FCFCOA possessed no inherent jurisdiction to make an order staying the operation of an order made by another court.

1. No argument was advanced by the wife to the effect that the FCFCOA did in fact possess the requisite power to make an order staying the writ, order or default judgment of the Supreme Court of Victoria. Further, as a matter of federal constitutional law, I was not aware of any authority to the effect that a court established under Chapter III of the Constitution of the Commonwealth of Australia (aside from the High Court of Australia) has power to make an order controlling the enforceability of an order made by a state court.
2. In written submissions filed ahead of today's debate, counsel for B Bank examined the wife's application under the rubric of an injunction being ordered by the FCFCOA. Before going to that, it is relevant to observe that B Bank was not a party to this litigation. Under s 114 and s 90AF of the FLA, the FCFCOA possesses undoubted power to make orders in the nature of injunctions. The FCFCOA, being a court of law and equity for the purposes of s 9 of the FCFCOAA, has power to make orders that are injunctions including interim orders, ex parte orders, inter partes injunctions, interlocutory and permanent injunctions, quia timet injunctions, prohibitory and mandatory injunctions. An injunction granted pursuant to s114 of the FLA is ordinarily an order as between spouse parties or parties to a defacto relationship. Conversely, an order in the nature of an injunction the operation of which binds a third party is ordinarily made pursuant to s 90AF of the FLA. Any such order is ordinarily premised on the existence of a serious issue to be tried and that the balance of convenience favours the making of the order sought.
3. The FCFCOA possesses undoubted power to grant an injunction so as to preserve assets for the purpose rendering the item amenable to an order for the alteration of property interests under s 79 or s 90SM of the FLA. Such an order differs from an injunction of the type considered by the High Court in Cardile v LED Builders Pty Ltd[16] as was held in Hancock & Hancock.[17]
4. An injunction application to prevent B Bank from effecting the sale of the property was likely to fail. That was because -

(a) a valid contract for the sale of the property had already been executed;

(b) B Bank is the holder of a default judgment debt against the husband (the registered proprietor of the property);

(c) no application - let alone a successful application - was brought by the husband to set aside the default judgment;

(d) B Bank had regularly and properly enlivened the process of the Supreme Court of Victoria in respect of execution of its default judgment against the property; and

(e) if an order were made staying the execution process, the purchaser of the property was likely to be adversely affected in his, her or its use and enjoyment of the property.

1. Any such injunction would also adversely affect B Bank's recovery of its judgment debt by delaying the process of recovery in respect of its loss.
2. In written submissions filed prior to today's debate counsel for B Bank relied on the decision in Tarok & Kardan (No 4)[18] to the effect that an order interfering with the security interests of a third party is a very serious matter. While recognising the import of that observation, I was unable to agree with the breadth of the observation. Orders restraining a mortgagee exercising its power of sale are routinely made so long as -

(a) in the case of a disputed indebtedness, the disputed amount is paid into court as a condition to the grant of the injunction;[19] and

(b) in the case of a contention that the sale is not at the best price reasonably obtainable,[20] evidence is before the court about the best price.

1. To say that an order interfering with a mortgagee's interest is a very serious matter very considerably overstates the position. The wife contended that she would be subjected to hardship if the orders she sought were not made. Her evidence on point was imprecise beyond her deposing to her being removed from her place of abode. In her written submissions filed on 14 October 2025, the wife made several allegations, namely -

(a) the respondent had misrepresented his financial circumstances through failing to disclose income of at least $140,000 per annum and ongoing employment and third party transfers;

(b) the wife provided consent to negotiate and seek potential buyers which was taken out of context to mean she agreed to the property being sold;

(c) at the time of sending the text message with her alleged agreement to the property being sold, the wife was recovering from major surgery and the agent stayed at the applicant's property until she complied with his request to send the text message;

(d) the applicant did not understand that her text message would be treated as her irrevocable consent to the sale of the property;

(e) the applicant was not a party to the proceeding in the Supreme Court of Victoria and she was unaware of the notice to vacate until she was contacted by the sheriff in September 2025;

(f) the applicant resided with her two children at the property and eviction will result in their homelessness; and

(g) the applicant had no alternate accommodation, rental references, funds for bond or extended family support.

1. It was not said by the wife what interest she asserted in the property. She appeared to be a tenant.
2. Annexed to the affidavit of Ms F on behalf of B Bank made 13 October 2025 was a notice to vacate the rented premises dated [...] June 2024. In that notice, Mills Oakley on behalf of B Bank stated that B Bank had been informed that the rental provider entered into a rental agreement with tenants without their consent.
3. No suggestion was made by the wife that she would meet all or even some of the debt due to B Bank.
4. In my view this court does not possess power to make an order staying execution of the judgment ordered by the Supreme Court of Victoria. Further, no injunction would be ordered to stop B Bank proceeding to execute its judgment. At all events, precisely how the wife could meet an undertaking as to damages as the price of the injunction[21] was not stated by her or volunteered.
5. I dismiss her application in a proceeding sealed 10 October 2025.

1. On 21 August 2025 the parties informed me that by reason of defective disclosure in this proceeding the trial could not proceed.
2. On 21 August 2025, consent orders were made to the effect that the husband by not later than 4.00pm on 11 September 2025 was required to provide full and frank disclosure in relation to a collection of documents. Those were -

(a) all bank accounts held in his name or that of a related entity;

(b) all tax returns and assessments for the years ending 30 June 2019 to date;

(c) any employment contracts, payslips or other proof of income since 30 June 2019;

(d) any property assets real or otherwise in Australia or overseas;

(e) all superannuation accounts;

(f) copies of any share certificates, cryptocurrency or other investments or related entities;

(g) all trust accounts, holdings and entities in his name or that of a related entity; and

(h) all other investments.

1. The proceeding returned before me for mention on 12 September 2025 at which time I was informed that the husband had not complied with the consent orders made on 21 August 2025. On 12 September 2025 I ordered that before noon on 19 September 2025 (one week later) the husband was required to provide all the documents set out in paragraph 1 of my orders made 21 August 2025. I further ordered that if the husband failed, refused or neglected to comply with that order, consideration may be given by me to permanently staying the contentions made in his response to the initiating application in this proceeding.
2. This proceeding returned before me on 14 October 2025 at which time I was informed by Mr Fadel, the wife's solicitor, that the husband had still not complied with the consent orders made on 21 August 2025, nor my orders made on 12 September 2025. Ms Albore, the husband's solicitor, informed me that the husband was unaware of any outstanding disclosure.
3. By orders made on 14 October 2025 I ordered the wife to provide a list of the documents which she said the husband failed to provide in accordance with the consent orders made 21 August 2025 by noon on 15 October 2025. I further ordered the husband to provide a response to the wife's list of documents detailing which documents he said he had provided by noon on 16 October 2025 and I adjourned the further hearing of the debate on the disclosure issue to 21 October 2025.
4. On 16 October 2025 or thereabouts the wife provided a list of the documents she said the husband failed to provide. The wife asserted -

(a) the order for the husband to provide bank accounts and statements was only partially complied with and that the husband had still not provided disclosure in respect of -

(i) numerous bank statements for various months and years within the required disclosure period;

(ii) overseas bank accounts;

(iii) no source documentation had been provided to explain transfers exceeding $600,000 to third parties;

(iv) a $715,750 loan drawdown and $397,399 internal repayment at G Bank was omitted;

(v) a $203,000.52 surplus from refinancing the property was omitted;

(vi) a $116,953.77 redundancy payment received on 24 July 2024 was omitted;

(vii) in excess of $264,555.32 in unexplained external transfers were omitted;

(viii) property related payments of $134,522.50 and $89,995.63 in property related payments were omitted; and

(ix) multiple large cash withdrawals and transfers between $10,000 and $50,000 including via J Bank, CBA, H Bank, NAB and the K Bank were omitted;

(b) his employment contract;

(c) financial records and ownership details concerning seven Australian real properties and two Indian properties;

(d) shares in any listed or unlisted companies;

(e) cryptocurrency holdings or exchange accounts;

(f) bonds, managed funds or similar investments;

(g) trust accounts and related entities;

(h) overseas investments;

(i) business interests; and

(j) loans, private equity or similar holdings.

1. The husband did not file a response to the wife's list of documents which recorded the documents he said he had provided.
2. Rule 6.01(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the rules") provides that "each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner."
3. The husband has failed to comply with disclosure orders in contravention of r 6.17 of the rules. Orders were made by consent on 21 August 2025 for disclosure of a list of documents. Orders were also made by me on 12 September 2025 for the production of the documents previously ordered. As revealed by the wife's list of documents which she alleges the husband has failed to provide, the husband has partially complied with the orders of the court.
4. In those circumstances, it became necessary to address the observations in key authorities about the duty of disclosure. The authorities on point were surveyed in considerable detail by me in Bacall v Zagar.[22] The more relevant matters were as follows -

(a) the duty of disclosure is a concept derived from equity;[23]

(b) full and frank disclosure of all material facts is a fundamental requirement in financial matters[24] and a party in a property proceeding has a duty to make full disclosure of his or her financial affairs;[25]

(c) the duty is absolute;[26]

(d) full and frank disclosure of financial matters between the parties is basic to the process of the court and is one of the elements of the Family Law Act and the process of the court;[27]

(e) the duty exists as to provide a basis on which the parties are in a position to resolve the case by agreement or to proceed to a hearing as expeditiously as may reasonably be done;[28] and

(f) the duty is to make disclosure of all information relevant to the case in a timely manner.[29]

1. The husband has been derelict in his duty to provide disclosure. Section 71B of the Family Law Act imposes duties of disclosure. The husband has not acted in a timely manner and in respect of some documents he has altogether ignored his duty. His unwillingness to disclose crucial financial documents is antithetical to the forward progress of this proceeding. Without a complete view of the assets relevant to this proceeding, the parties will be unable to settle this case.
2. It is now utile to turn to what the authorities have said about the consequences of defective disclosure. This was also surveyed by me in Bacall v Zagar where I held as follows -

"By reason of a breach of the duty of disclosure, the uppermost limit of what can be ordered to be transferred to one party in an application under s 79 is the whole of the ascertained property of the parties (Monte).[30]

It is not open to one party who has failed to fulfil the obligation of full and frank disclosure to rely on that failure so as to prevent the making of an order against that party in default (Giunti,[31] Black v Kellner,[32] Oriolo[33]).

The failure to disclose relevant financial information may lead a court to draw inferences against the person who failed to disclose the information. However, it is not appropriate to transfer the task of establishing relevant financial factors from the parties to the trial judge (Steiner).[34]

Where there is clear evidence of non-disclosure the court should not be unduly cautious of making findings in favour of the innocent party (Weir,[35] Monte).

Once there is sufficient evidence to support a finding that a party has not made full disclosure, the court has jurisdiction to make an order in relation to unidentified and undisclosed property (Weir, Monte).

It is beside the point whether non-disclosure was wilful or accidental or whether it was the result of misfeasance or nonfeasance. The duty to disclose is absolute. Where the court is satisfied that the whole truth has not come out the court might more readily conclude that the asset pool was greater than demonstrated. In those circumstances it might be appropriate to err on the side of generosity to the party who might otherwise be seen to be disadvantaged by the lack of complete candour (Chang v Su,[36] Weir, Kannis[37]).

The obligation to make full and frank disclosure is regarded as being so crucial to the functioning of this jurisdiction that the deliberate failure by one party to meet that obligation may result in the court drawing adverse inferences against the non-disclosing party, where there is material on which such an inference can be based (Stein, Mezzacappa,[38] Giunti, Morrison[39] and Barker[40])."

1. On 12 September 2025 I ordered that if the husband fails, refuses or neglects to comply with the orders for disclosure, consideration may be given by me to permanently staying the contentions made in his response to the initiating application in this proceeding. I propose to give the husband 14 days to exhaustively address his disclosure duties. If he fails, refuses or neglects to comply with those duties, I propose to give consideration to refusing him permission to contest this s 79 application. That said, and for the avoidance of doubt, I have not said that I will, as a statement of fact, presently make an order forbidding him from contesting this s 79 application. He must do as the law requires him to do by giving disclosure to the wife of all the relevant documents. The wife's solicitor's letter dated 16 October 2025 set out the deficiencies in his disclosure. Unless he provides exhaustive disclosure of the documents set out in that letter by noon on Wednesday, 4 November 2025 this proceeding will be mentioned at 9.30am on 5 November 2025 with a view to requiring the husband to show cause why the husband's amended response dated 14 August 2025 should not be stayed until he provides disclosure.
2. The husband must cooperate in discharging his duties of disclosure. Sanguine consequences attend further failures in that regard. I do not agree with the submissions of the husband's solicitor that the wife is engaging in a fishing exercise under the guise of disclosure. Nor do I agree that the wife is under an obligation to tell the husband what documents he must disclose. Such a submission inverts the disclosure duties. It must not be overlooked that the husband is required to disclose documents he finds, by chance, in storage, for example. Self-evidently, the wife would in those circumstances have no idea of the existence of the relevant documents in order to ask for their disclosure.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson.

[1] [2023] FedCFamC1F 291.

[2] Hazeldell Ltd v The Commonwealth [1924] HCA 36; (1924) 34 CLR 442, Federated Engine-Drivers and Fireman's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31; (1911) 12 CLR 398, Old UGC Inc v Industrial Relations Commission of New South Wales [2006] HCA 24; (2006) 225 CLR 274, Robins v Incentive Dynamics Pty Ltd [1999] FCA 1651; (1999) 91 FCR 423 and Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513.

[3] Official Trustee in Bankruptcy v Nedlands Pty Ltd (In liq) [2000] FCA 599; (2000) 99 FCR 554.

[4] Bunbury v Fuller [1853] EngR 768; (1853) 156 ER 47.

[5] DMW v CGW [1982] HCA 73; (1982) 151 CLR 491, R v Gray; ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351, Re Macks; ex parte Saint (2000) 204 CLR 158, Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366 and Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398.

[6] Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd [1943] HCA 13; (1943) 67 CLR 25 and Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293.

[7] Yunghanns v Yunghanns [1999] FamCA 64; (1999) 24 Fam LR 400, Black v Black [2008] FamCAFC 7; (2008) 38 Fam LR 503 and Norton v Locke [2013] FamCAFC 202; (2013) 50 Fam LR 517.

[8] Yunghanns v Yunghanns [1999] FamCA 64; (1999) 24 Fam LR 400, 432-3.

[9] [1982] HCA 73; (1982) 151 CLR 491.

[10] [1984] HCA 82; (1984) 156 CLR 185.

[11] [1975] UKHL 1; [1975] AC 396.

[12] (1982) 57 ALJR 425.

[13] (1984) 58 ALJR 283.

[14] [1984] FCA 202; (1984) 3 FCR 55.

[15] [2000] HCA 17; (2000) 201 CLR 226, 240 (at [25] et seq).

[16] [1999] HCA 18; (1999) 198 CLR 380.

[17] [2023] FedCFamC1F 429.

[18] [2024] FedCFamC1F 543.

[19] Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161.

[20] Investec Bank (Australia) Ltd v Glodale Pty Ltd [2009] VSCA 97; (2009) 24 VR 617 (Court of Appeal of the Supreme Court of Victoria).

[21] National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] VicRp 31; [1991] 1 VR 386.

[22] [2020] FamCA 350.

[23] Flight v Robinson [1844] EngR 826; [1884] 50 ER 9.

[24] In the Marriage of Black & Kellner (1992) 12 Fam LR 343.

[25] In the Marriage of Weir [1992] FamCA 69; (1992) 16 Fam LR 154.

[26] In the Marriage of Kannis [2002] FamCA 1150; (2002) 30 Fam LR 83.

[27] In the Marriage of Suiker [1993] FamCA 141; (1993) 17 Fam LR 236.

[28] In the Marriage of Briese [1985] FamCA 23; (1985) 10 Fam LR 642

[29] In the Marriage of Briese [1985] FamCA 23; (1985) 10 Fam LR 642, In the Marriage of Suiker [1993] FamCA 141; (1993) 17 Fam LR 236, In the Marriage of Morrison [1994] FamCA 153; (1994) 18 Fam LR 519 and Waterman & Waterman [2017] FamCAFC 23.

[30] In the Marriage of Monte [1986] FamCA 1.

[31] In the Marriage of Giunti [1986] FamCA 15; (1986) 11 Fam LR 160.

[32] In the Marriage of Black & Kellner (1992) 12 Fam LR 343.

[33] Oriolo v Oriolo [1985] FamCA 54; (1985) 10 Fam LR 665.

[34] In the Marriage of Stein [1986] FamCA 27; (1986) 11 Fam LR 353.

[35] In the Marriage of Weir [1992] FamCA 69; (1992) 16 Fam LR 154.

[36] Chang v Su [2002] FamCA 156; (2002) 29 Fam LR 406.

[37] In the Marriage of Kannis [2002] FamCA 1150; (2002) 30 Fam LR 83.

[38] In the Marriage of Mezzacappa [1987] FamCA 20; (1987) 11 Fam LR 957.

[39] In the Marriage of Morrison [1994] FamCA 153; (1994) 18 Fam LR 519.

[40] Barker v Barker [2007] FamCA 13; (2007) 36 Fam LR 650.