Often in relationships one party has had control of the joint finances or knows more about their finances than the other. This often causes difficulty for the other party to effectively instruct their lawyer in relation to the asset pool.
The rules of the Family Court provide for pre-action procedures, which are steps that the parties must undertake or attempt to undertake prior to the commencement of any proceedings in the Family Court. These rules provide an ongoing obligation of both parties to provide full and frank disclosure.
This includes the exchange of relevant financial information and documents.
The following links may assist you in understanding your disclosure obligations:
- Family Court of Western Australia brochure titled Duty of Disclosure in family law proceedings
- Rule 13.07 of the Family Law Rules 2004, which relates to the duty of disclosure. This Rule applies to documents that are or have been in the possession or control of the parties and are relevant to an issue in the case
- Rule 13.14 of the Family Law Rules 2004, which highlights the consequences of non disclosure
Financial disclosure of your assets, liabilities and financial resources includes, among other things, evidence of your income and earnings (including payslips, contract of employment, tax returns, superannuation) property and business interests (including trusts and shares), your savings and investments (including bank accounts, term deposits, shares) and any other financial information relevant to your matter.
Your obligations in relation to ongoing disclosure also relate to any documents that are relevant in childrens matters.
If a party refuses to provide documents, the other party can apply to the Family Court for an Order compelling that non-compliant party to produce their disclosure documents. Alternately, a subpoena may be issued to relevant third parties requiring those third parties to produce documents that are relevant.
In the event that a party fails to comply with the order, it could result in the following:
- The court may refuse to give the non-compliant party permission to use that information or document as evidence to support their position.
- The court may stay or dismiss all or part of the non-compliant party’s case.
- Order costs against the non-compliant party.
- Fine or imprisonment for the non-compliant party on being found guilty of contempt of court for not disclosing the document or for breaching the order of the court.
- A value may be assigned to any property in which the non-compliant party has an interest so as to determine the net asset pool of the relationship.
This disclosure obligation is ongoing and you are required to provide updates when your circumstances change or when requested until finalisation of the matter. In the event that an agreement has been reached and a party becomes aware that the other party has concealed an asset, the original agreement or orders may be set aside by the court.