AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
• requests for answers to specific questions be given on oath or affirmation; • notices to admit facts; • notices to admit the authenticity of docu - ments; and • the making of lists of documents relevant to the case. If a party fails to fulfil their obligations for full and frank disclosure, then significant penalties can apply. In extreme cases, a party may have a case against it dismissed if the other party has failed to give them proper disclosure. A judge can also be more robust when making final or interim orders, where they conclude that a party has failed to meet their disclosure obligations. Each party must, before a final trial, file with the court a document known as an undertaking as to disclosure, which sets out their acknowledge - ment of the existence of those obligations and confirms to the court that they have met those obligations. Approach to Trusts The Australian courts have the power to regard the corpus of a trust as the property of a party to a marriage, where it can be established that the trust is effectively controlled by one or both parties to the marriage and one or other party to the marriage can benefit from that trust. Control of a trust is generally determined by one of the following means: • a finding that the trust is a sham; • a finding that the trust is the alter ego of a party; • a finding that a party controls the trust by virtue of their role as the appointor or protec - tor of the trust, with the ability to replace the trustee; and
• by findings of control of the trustee by a party and the ability to benefit from the income or corpus of the trust. Where a party to the marriage seeks that assets held within a trust structure be available for divi - sion, it is ordinarily necessary to join the trustee of that trust to the proceedings under the Fam - ily Law Act. This then enables the trustee to be bound by any final orders that are made and enforcement mechanisms. Superannuation The Australian courts have power under the Family Law Act to make orders for “superannua - tion splitting” in relation to interests in Australian superannuation funds. By way of example, if the parties have AUD2 million in non-superannuation assets and AUD1 million held in superannuation funds, a court might make an order requiring that the superannuation be split equally between the parties (so that each party has superannuation worth AUD500,000) and they each receive a similar percentage division of the non-superan - nuation assets. The Australian courts, in general terms, have no power to make orders against pension or super - annuation interests in a foreign country, as they are not superannuation interests for the pur - poses of Australian law. There are some limited exceptions, where an Australian court might, by the making of an injunction in personam directed against a party who has a foreign superannua - tion interest, require them to bring that interest into Australia and convert it into an Australian superannuation interest or an asset in Australia. However, this will generally only occur: • where there are no other substantial assets from which a property settlement entitlement could be met;
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