1. Duty of disclosure in property settlement, why do I have to give my ex partner all this information?
The Family Law Rules require parties to family law proceedings, whether they go to court or not, to provide each other with certain documents containing personal information to each other. This is called the duty of disclosure and requires parties to exchange tax returns, bank statements and payslips.
Why when I’m not going to court?
The rationale behind the rule is so that both parties are aware of all the assets, liabilities and financial resources that each party has in their own name as well as jointly with their partner or with third parties. If a party is found to not fully disclosed all their assets or financial resources then the other party has the right to seek to set aside any agreement or consent order.
When can an agreement be set aside?
An agreement, even if consented to and signed by both parties, can be set aside if it is later discovered that an additional item of property exists, such as an additional bank account in someone’s sole name containing a substantial sum. This means that the court will ‘re-decide’ the split of the assets between the parties.
An agreement is also liable to be set aside if one party is placed under duress by the other party to agree to a property division.
It is always in your best interests to be honest and fully disclose your financial affairs disclosure requirements.
Privacy?
The only parties that receive these documents are the other party and their solicitor. Their solicitor is bound by the Australian Solicitors Conduct Rules which prohibits them from misusing this information and or distributing it to third parties.
2. What to expect when you go to the Family/Federal Circuit Court of Australia
In accordance with the Family Law Rules parties must attend each court event in the Family or Federal Circuit Court of Australia. An exception to this is in relation to divorce proceedings. Once the Application is filed it will be allocated to a judicial officer’s list. As a rule you will generally have the same Judge on each occasion to see your matter through to finalisation.
When you attend Court, whether you have a lawyer or not, you are expected to stand and bow when the Judge enters the room and wait to sit until the Judge has seated. When your matter is called by the Associate you will approach what is known as the bar table. If you do not have representation and unsure of where to go or what to do ask the Associate or other Court staff who will assist you on the procedures.
In the Family Courts, the parties sit behind their respective lawyers. The Applicant sits to the left of the bar table and Respondent to the right. Any other family members, friends or support people you have brought with you cannot sit here with you, but instead sit behind in the public gallery section. If you are unsure where to sit it is best to ask your lawyer.
If you are represented, the Judge will not directly ask you any questions, but will ask your lawyer. Your lawyer may in turn seek your further instructions on something asked by the Judge. It is your lawyer’s job to speak for you.
By Rebecca Blackburn