FAMILY LAW - MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST - stay application for defective disclosure - persistent dereliction of duty towards disclosure by husband - stay granted.

Family Law Act 1975 (Cth) ss 71B, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 6.01, 6.17, 8.16(1)(a)

_Bacall & Zagar [2020] FamCA 35_0

Khosrow v Khosrow [2025] FedCFamC1F 741

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. Pursuant to rule 7.17(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the respondent's amended response dated 14 August 2025 is stayed until the respondent exhaustively discloses all documents he is required by the rules so to do.
2. The further hearing of this proceeding is adjourned to 19 November 2025 with a view to fixing this case for trial.
3. Unless the respondent gives full and frank disclosure pursuant to these orders by 19 November 2025, only the wife's application for orders under s 79 of the Family Law Act will proceed to trial.
4. Costs of and incidental to this application are reserved.

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. The wife has applied for an order that the husband's amended response dated 14 August 2025 be stayed by reason of his defective disclosure. These reasons explain why I have made the orders sought by the wife.

1. In this proceeding the wife applies for orders pursuant to s 79 of the Family Law Act. The respondent, the husband, has sought orders in his amended response dated 14 August 2025 that the net assets of the parties are to be divided in the manner for which he contends.
2. The parties are presently in dispute about the adequacy of the husband's disclosure. The wife says she is unable to meaningfully assess her entitlements in this litigation without the husband providing proper disclosure. She says he has twice been ordered to provide proper disclosure, which he has failed, refused or neglected to do.
3. Conversely, the husband says he is presently unrepresented, although when he was represented he provided all disclosure to which the wife was entitled. He said he has not been derelict in his disclosure obligations. He argued that his amended response should not be stayed.
4. The skirmishing about disclosure commenced on or about 21 August 2025. On 21 August 2025 the parties agreed to consent orders. In paragraph 31 of my reasons for judgment dated 21 October 2025 I recorded that the husband was required by those consent orders made 21 August 2025 to provide full and frank disclosure in relation to a collection of documents. Those documents 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 the husband's name or that of a related entity; and

(h) all other investments.

1. He failed to comply with the consent orders made 21 August 2025. The proceeding came before me for mention on 12 September 2025. On that day I ordered that by noon on 19 September 2025 the husband was required to provide all documents set out in my orders made on 21 August 2025. I stated in the 12 September 2025 orders that if the husband failed, refused or neglected to comply with paragraph 1 of my 21 August 2025 orders by noon on 19 September 2025, consideration may be given by me to permanently staying the contentions the husband made in his response to the wife's initiating application in this proceeding.
2. The husband failed to comply with details in paragraph 1 of the consent orders made 21 August 2025 by the date ordered, namely 19 September 2025. When this proceeding was returned before me on 14 October 2025 I was informed by the wife's solicitor that the husband continued not to comply with -

(a) the consent orders of 21 August 2025; and

(b) my orders made 12 September 2025.

1. On 14 October 2025 the husband's solicitor contended that the husband did not know in what respect he had not complied with my orders of 21 August 2025 and 12 September 2025.
2. On 14 October 2025 I made orders requiring the wife's legal representatives to provide a document to the husband's solicitors setting out the documents the husband asserted that the wife had not provided and to do so by noon on 16 September 2025. I adjourned the further hearing of debate on disclosure to 21 October 2025.
3. The wife duly provided the husband with a list of documents she said the husband had failed to provide. That list included the documents she said the husband had only partially complied with. I enumerated that list in paragraph 35 of my reasons for judgment in this case handed down on 21 October 2025. The husband did not file a response to the list of documents provided by the wife.
4. On 21 October 2025 this proceeding returned before me. By that date -

(a) the wife continued to assert that the husband had wholly or partially failed to provide disclosure whether in accordance with correspondence from the wife's solicitors or more generally in accordance with his duties under applicable court rules; and

(b) the husband continued to deny any deficiencies in the disclosure he had then provided.

1. I took the view that the husband's disclosure remained defective. In debate with the solicitor then appearing for the husband I raised how the husband's continued failures in that regard may very well impact upon his ability to raise the issues he wanted to agitate in this s 79 application.
2. The orders made on 21 October reflected how the husband's ongoing dereliction of duty in respect to disclosure should be linked to his ability to raise the matters he wanted to agitate in his amended response dated 14 August 2025. On 21 October 2025 I ordered the husband to provide by noon on 4 November 2025 exhaustive disclosure of the documents set out in the wife's letter dated 16 October 2025. The words "exhaustive disclosure" were incorporated in the order. In paragraph 2 of the orders made that day I ordered that if by 5 October 2025, the husband failed, refused or neglected to do as was ordered in the relevant paragraph of those orders, the husband was required to show cause why his amended response dated 14 August 2025 should not be stayed until he in fact provided adequate disclosure.

1. The husband told me his legal representation has ceased on some date between 21 October 2025 and 5 November 2025 with the result that the husband, then a resident of New South Wales, participated in the hearing on 5 November 2025 by audiovisual link and he was unrepresented. Prior to the return of this proceeding on 5 November 2025 the wife made an affidavit affirmed 4 November 2025 in response to the husband's affidavit made 1 November 2025. In his 1 November 2025 affidavit the husband asserted as follows -

(a) the solicitors acting for him on 18 September 2025 failed to provide to the wife's solicitors various documents by 19 September 2025 and did so only on 23 September 2025;

(b) on 21 October 2025 his then solicitor made a variety of factually incorrect statements to the court including -

(i) contrary to the submissions of his solicitors on 21 October 2025 he did not hold any bank accounts jointly with the wife;

(ii) contrary to the contention that the wife deposited Centrelink payments into accounts in the husband's name no such deposits were ever made;

(iii) contrary to the contention that the husband's current partner holds businesses on the husband's behalf he is a full-time salaried professional who does not own his own professional practice; and

(iv) contrary to the contention that he failed to disclose the account into which a redundancy payment was deposited the redundancy payment was deposited into the husband's K Bank account; and

(c) the husband solicitor's video link with the court on 21 October 2025 was defective rendering the husband's solicitor's ability to make effective submissions problematic with the consequence, so the husband asserted - totally improperly - that I was misled into believing that he had not complied with his disclosure obligations.

1. On that last matter several things must be said -

(a) first, a deponent to an affidavit must oppose to facts in dispute only (rule 8.16(1)(a)) and not to submissions;

(b) second, it is utterly improper for a lay person to state in an affidavit that a court was or was not misled in some way and a lay person should not record submissions in an affidavit under the guise of statements of fact;

(c) third, whether or not the husband had complied with his disclosure obligations was to be determined by other factual matters and not by the lay assessment made by the respondent of any so-called misleading of the court.

1. The husband's approach to disclosure has been erroneous and wrong-headed. He proceeds on the premise that the wife's solicitors are required to request disclosure of categories of documents or specific documents from him. That is wrong. The duty of disclosure set out in rule 6.01 of the court rules requires each party to a proceeding "to give full and frank disclosure of all information relevant to the proceeding" and to do so in a timely manner. A party is not required to request disclosure from an opposite party before being required to give disclosure. The disclosure obligation is continuing. It binds each party to litigation whether or not a request in general or in specific terms is made for disclosure. Even if a document comes to a party's attention during the trial, it must be disclosed whether or not it has been previously disclosed and so long as it is relevant. The obligation to give "full and frank disclosure" is exhaustive not selective. Unless a claim to privilege is successfully invoked and maintained the disclosure duty must be strictly complied with. The husband in this case has adopted an approach to disclosure to the effect that he will respond only to specific requests for disclosure. That is not "full and frank disclosure" as the court rules contemplate. I do not agree that the respondent has fully and frankly complied with his disclosure duties.
2. In her 4 November 2025 affidavit the wife deposed to the specifics of the husband's disclosure failures. She said he had failed to -

(a) provide account statements from G Bank and J Bank in the period prior to and subsequent to refinancing;

(b) disclose a loan drawdown of $715,750 and an internal repayment of $397,399 associated with a refinance;

(c) provide an account history or explanation of the use or application of those funds; and

(d) provide supporting documentation in respect of the J Bank home loan in respect of which the husband is the primary account holder.

1. The wife further deposed to the absence of the husband's disclosure in respect of discrete classes of documents. Those were -

(a) the July 2024 redundancy payment received by the husband in the amount of $116,953.77;

(b) a superannuation sum of $200,418.59;

(c) unexplained transfers to third parties of an amount exceeding $600,000;

(d) bank statements from J Bank, CBA, NAB, H Bank and K Bank; and

(e) employment records, payslips and tax declarations.

1. The wife further deposed to the husband's failure to provide documents evidencing title or bank statements relevant to six parcels of real estate located in Victoria and in New South Wales. Those parcels of real estate were said to be located in Suburb L, New South Wales, two in Suburb M, Victoria, one in Suburb N, Victoria and one in Suburb O, Victoria, with one being located in Suburb P, New South Wales.
2. So far as the husband's interest in real property located overseas was concerned, the wife deposed to his having interest in two parcels of land in Suburb Q, Region R, India which the husband failed to disclose in this litigation. The wife deposed to over $803,000 in unaccounted for assets.
3. The wife deposed to the requirements of the consent orders made 21 August 2025. She stated that pursuant to those consent orders the respondent agreed to provide disclosure of six categories of documents, namely -

(a) all personal and joint bank accounts (local and international);

(b) employment records and tax records;

(c) loan and mortgage documents;

(d) documents relating to property sales, transfers or refinancing;

(e) trusts, companies, shareholdings and digital assets; and

(f) documents evidencing rental income and third-party transactions.

1. The wife exhibited her solicitor's letter dated 16 October 2025 pursuant to which Mr Fadel informed the husband's solicitors of the material ways in which there was non-compliance with the consent orders. The wife deposed to there being ongoing non-compliance with the husband's disclosure especially concerning bank statements, G Bank and J Bank loan documentation, salary summaries and employment contracts, rental income received and unexplained transactions aggregating $1.8 million in value.
2. The wife deposed to her source of knowledge about the husband's receipt of rental income in respect of one of the Suburb M properties. The wife gave evidence in paragraph 36 of her 4 November 2025 affidavit that she became aware that Indian international students represented the property at S Street, Suburb M, in the period 2023 to 2025, depositing rental payments into the husband's partner's PayID account and that the respondent at no stage disclosed the receipt of rental income derived in that way.
3. Between paragraphs 37 and 39 of her 4 November 2025 affidavit the wife deposed to the husband's failures to disclose G Bank statements, that he failed to produce, or disclose J Bank home loan documentation, that he failed to disclose a loan drawdown of $715,750 and an internal repayment of $397,399, that the husband failed to explain a refinancing surplus of more than $203,000 subsequent to separation and that the husband has refused to allow funds to be traced.
4. The wife asserted that she took the view that the husband had concealed aspects of the property pool, raising issues of wastage, unilateral dissipation and breach of fiduciary duty (although she did not say how the alleged fiduciary duty arose).
5. The wife identified a collection of parcels of real estate in respect of which no relevant disclosure had been provided by the husband. Specifically, she stated -

(a) the husband has lived in and controlled T Street, Suburb O, Victoria, as well as S Street, Suburb M, Victoria and now lives at U Street, Suburb P, New South Wales yet he has produced no title documents, sale contracts, settlement statements, or mortgage records of any of those properties;

(b) the real property at V Street, Suburb L, New South Wales, as well as C Street, Suburb M, Victoria were sold or refinanced after separation yet the respondent has failed to provide complete sale documents or loan discharges; and

(c) the husband has failed to explain what became of the sale proceeds in respect to those properties.

1. The wife deposed in another paragraph of her 4 November affidavit to the respondent making regular and substantial cash withdrawals from five identified bank accounts, those being J Bank, CBA, NAB, H Bank and K Bank. She deposed to withdrawals from one or more of those banks in the period 17 February 2023 to 12 December 2023. The amounts withdrawn individually ranged from $10,000 to $50,000. The withdrawals were made at branches, at ATMs, or were internal cash withdrawals. She said that in respect of the period between January 2023 and July 2025 -

(a) a pattern developed of weekend withdrawals of sums between $5000 and $10,000;

(b) cash was withdrawn soon after sums were received;

(c) large withdrawals aligned with refinancing dates and rental deposits;

(d) no matching obligations could explain those transactions; and

(e) no receipts, invoices or declarations explained the purposes of the cash withdrawals.

1. The wife stated in her view the respondent was intentionally dissipating matrimonial assets. She also deposed to the husband funding expenses for his current partner from matrimonial assets. The wife's affidavit disclosed an arguable case that the husband's disclosure was defective and deficient.
2. Rather than addressing the wife's allegations the husband glibly asserted as follows -

"I have provided full and frank disclosure to the best of my ability".

1. On this interlocutory application I find it difficult to be satisfied on the balance of probabilities that the husband's statement just quoted is correct. It was unsatisfactorily broad and it is bereft of particularity so as to possess any forensic validity.

1. Written submissions were filed on behalf of the wife dated 14 October 2025 (an obvious error, as the body of the submissions referred to events on 1 November 2025). In those submissions, the wife advocated for five main orders, namely -

(a) an order for the striking out of the husband's 1 November 2025 affidavit pursuant to rule 8.18 of the court rules;

(b) an order of staying the husband's amended response dated 14 August 2024 pursuant to rule 6.01 of the court rules;

(c) an order for the matter to proceed undefended;

(d) an order fixing the applicant's amended initiating application for trial; and

(e) an order requiring the respondent to pay the costs of, and incidental to this application.

1. No written submissions were filed or relied upon by the husband. He appeared before me from (so he said) an address in Suburb P, New South Wales, unaided by legal representation. He said that address was his office.
2. In written submissions of the wife a collection of contentions were advanced. They may be synthesised in the following manner -

(a) in the reasons for judgment dated 21 October 2025 it was held that the husband has omitted several hundreds of thousands of dollars in recent transactions, he failed to account for material financial documents and he did not provide explanations for assets known to be within his knowledge;

(b) the husband was warned that unless he provided exhaustive disclosure by 4 November 2025 the court would entertain an application to stay his response;

(c) the husband failed to comply with the orders of 21 October 2025;

(d) the husband continues to fail to comply with the orders for disclosure made on 21 October 2025; and

(e) the husband has disregarded the letter from the wife's solicitors dated 16 October 2025.

1. The husband advanced submissions to the effect that he had in fact duly and diligently complied with his disclosure obligations.

1. On 5 November 2025 when submissions were advanced, Mr Peters of counsel for the wife relied on rule 6.17(b) as the foundation for his client's contention that by reason of the husband's defective disclosure of documents required by the rules it was competent for me to stay the husband's case. No authority was brought to my attention in which a party's response to an initiating application was stayed by reason of defective disclosure. Yet by its precise terms, rule 6.17 countenances that precise eventuality.
2. The wording of rule 6.17 is straightforward. It is premised on a party not disclosing a document as required by the rules. The husband in this case was ordered by orders made on 21 October to "provide exhaustive disclosure of the documents set out in the wife's letter dated 16 October 2025". If he failed to do that by 9.30 am on 5 November he was required to show cause as to why his amended response dated 14 August 2025 should not be stayed until he provided adequate disclosure.
3. The 16 October 2025 letter from the wife's solicitors was set out in substance in paragraph 35 of my reasons in Khosrow v Khosrow.[1] In that letter the wife recorded the documents in respect to which the husband had not provided disclosure. The list was long. It was also specific in the detail it provided for which disclosure was required, including -

(a) bank statements;

(b) source documentation explaining transfers to third parties in amounts exceeding $600,000;

(c) a loan of more than $715,000 and an internal repayment of more than $397,000;

(d) a redundancy payment;

(e) a surplus of more than $200,000 from refinancing certain real property;

(f) large cash withdrawal;

(g) the husband's employment contract;

(h) ownership details of several parcels of real property in Australia and India;

(i) shares;

(j) cryptocurrency;

(k) overseas investments and more.

1. In my reasons dated 21 October 2025 I addressed the duty under which the husband laboured when giving disclosure. He did not comply with the orders requiring him to address the particulars of the 16 October 2025 letter. To this day he continues to fail to comply. Instead he confidently - but erroneously - asserts that he has done all he could be required to do in complying with his disclosure obligations. That proposition is wrong. It must not be tolerated. The husband has had long enough to comply with -

(a) his duty of disclosure imposed on him under court rules;

(b) the duty of disclosure imposed on him by force of s 71B of the Family Law Act; and

(c) the duty of disclosure imposed upon him by force of a long list of decided cases which I surveyed in Bacall & Zagar,[2] as extolled in Khosrow & Khosrow at paragraph 39.

1. A party's failure to give full and frank disclosure impairs the court's ability to arrive at orders for the alteration of property interests under s 79(2) that are just and equitable.
2. In my view, no real attempt has been made by the husband to give exhaustive disclosure in this case. Instead, he has adopted a high-handed approach to asserting that he has given full and frank disclosure and that he can do no more. That is wrong on both counts. I take the view that he has been adequately warned of the consequences that will be visited upon him for his persistently derelict approach towards disclosure. He has been warned twice previously that unless he gave exhaustive disclosure his response may be stayed.
3. On 21 October 2025 it was ordered that unless he gave exhaustive disclosure he would be required to show cause why his amended response should not be stayed. He failed to show cause.
4. I make the orders at the beginning of these reasons.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson.

[1] [2025] FedCFamC1F 741.

[2] [2020] FamCA 350.