15 Jan Disclosure in Property Matters
The Federal Circuit and Family Court of Australia requires all parties involved in a family law property matter to make full and frank financial disclosure. This means that all parties must provide the other party all information that may be relevant to the matter whether it is in paper form or electronic documents regardless of whether your matter is before the Court or not.
A party is only required to disclose those documents that are in the party’s possession, power or control. This duty is an ongoing obligation, and you must continue to provide such information when your financial circumstances change or more documents come into your possession.
What Documents need to be disclosed?
Rule 6.09 provides a list of the documents that must be disclosed. In summary, these are:
- Income Tax Returns and Notices of Assessment;
- Details of any company of which a party is a director or shareholder or has been a director or shareholder, including the companies’ Financial Statements and Income Tax Returns;
- Details of all real estate owned by the party or any company of which the party is a director or shareholder or holds any interest in. Details of the address, name of the registered proprietor, estimate of value and any mortgage or liability in relation to the property (or properties);
- Details of all other assets owned by the party or any company of which the party is a Director or shareholder or has an interest in, including any shares, debentures, motor vehicles, boats, furniture;
- Details as to weekly income, including all bonuses, commissions, overtime payments and any other benefits received from a party’s employment and providing pay slips;
- Bank statements for all bank accounts held by a party, personally or in any company name;
- Superannuation statement or statements, and if a party is a member of a self-managed superannuation fund, then copies of the Super Fund’s Financial Statements and a copy of the Super Fund Trust Deed;
- Details of any interest in any deceased estate or trust; and
- Details and statements of any other liabilities or debts owed by a party or the companies, including any mortgage, overdraft, credit cards, loans, hire purchase and the like.
Undertakings about Disclosure
If your matter is before the Court, a party is required to file an undertaking once they have provided their disclosure stating that they are aware of their duty of disclosure and they have complied with it.
A party may be concerned that the other party is deliberately trying to hide their assets from their ex-partner. In such a situation, there are many ways for these hidden assets to come to light. Firstly, the process of disclosure provides the opportunity to perform a check and it makes it harder for a party to hide assets.
If there are still concerns and your matter is before the Court, the Court can do their own checks and the party that is hiding assets is more likely to be found out. There is also the option of issuing subpoenas to obtain information directly from a bank or an employer if you suspect that not all information has been produced.
A party can also apply to the Australian Taxation Office to seek information about their partner’s super savings. This will also make it difficult for a party to hide assets by not disclosing all super accounts.
The most important thing you can do is to keep informed throughout your relationship and ensure you have a general knowledge and understanding of your and your partner’s finances.