By Karen Devey – Senior Associate
Chang v Su [2002] FamCA
Parties to family law proceedings have a duty to the Court and to the other parties to make full and frank disclosure of all information relevant to the proceedings. Parties are required to promise to the Court that they have complied with this duty, by filing an Undertaking as to Disclosure.
The duty applies to each document that is or has been in the possession of, or under the control of the party required to disclose the document.
What is relevant to the proceedings will depend on the facts of the case and the issues in dispute. There is no complete list of what documents need to be produced, however Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, provides a non-exhaustive list for property proceedings.
If a party fails to make full and frank disclosure, the Court may make adverse findings against that party and/or draw inferences that the disclosure would not have assisted that party’s case.
In the matter of Chang v Su [2002] FamCA, Ms Su asserted that Mr Chang had significant assets in Taiwan that he had not disclosed in the proceedings. Ms Su relied on representations made by Mr Chang to the Australian Department of Immigration some 4 years before the commencement of the family law proceedings.
The thrust of Ms Su’s case was that Mr Chang was a wealthy person with all the trappings of a wealthy lifestyle, but that he had been deceitful about his financial circumstances in order to try and defeat her claim to a just and equitable property settlement.
During the court proceedings, Mr Chang provided limited disclosure about his financial circumstances. He also failed to adequately explain the significant change in his financial position between what he had disclosed to the Australian Department of Immigration and in the family law proceedings with Ms Su.
The trial judge found that Mr Chang had not given a coherent account of his property dealings. While he had given particulars about debts which he allegedly owed to his family, he was not forthcoming with information about his assets. The trial judge was satisfied that Mr Chang had not made full and frank disclosure about his financial position.
The trial judge also found that Mr Chang’s portrayal of himself as someone with more debt than property at the time of the final hearing was implausible. No findings could be made about the extent of his assets at the time of the final hearing. However, the Court inferred that Mr Chang likely remained a person of substantial wealth in Taiwan.
The trial judge determined that it was just and equitable to assume Mr Chang had sufficient assets to enable him to discharge the mortgage on 2 properties in Sydney, and transfer those properties unencumbered to Ms Su.
Mr Chang was unsuccessful on appeal to the Full Court and was denied special leave to appeal to the High Court of Australia.
Where a person deliberately and blatantly fails to comply with their disclosure obligations, the Court’s task of determining a just and equitable settlement is made more difficult. However, such behaviour also empowers the Court to draw inferences that the disclosure would not have assisted that person’s case.
Chang v Su stands for the proposition that where a party’s non-disclosure is deliberate, the Court should not be unduly cautious about making findings in favour of the other party.
If you have questions about your former partner’s assets or your own disclosure obligations in a family law matter, please contact us on 03 8672 5222 to arrange an appointment with one of our expert family lawyers.
