Family Court Proceedings
If your marriage or de facto relationship breaks down, you can agree to divide up your assets without the Family Court. This is the best case scenario and may well be possible at the end of a short relationship, or when dividing a small asset pool. You may be able to easily decide who will take the jointly-purchased washing machine and TV, with each person otherwise taking their own furnishings, clothes, entertainment equipment and toiletries. In this case, there may be limited value in involving the courts to determine asset distribution.
Such an informal agreement between separating parties is not legally enforceable. This means that even after you have divided up your property and gone your separate ways, your ex-partner could still make a claim on your assets. In the hypothetical scenario above, your former partner could come back months later and apply for part of your superannuation or other property. For a division of property to be final and legally enforceable, it is necessary to obtain “property orders“.
When you and your ex-partner agree and submit a joint property settlement agreement to the Court, you can receive such orders “by consent”. Alternatively, if you cannot agree, the Court can make the decision for you and issue property orders accordingly.
Disclosure to the court
The Family Law Act 1975 (Cth) sets out how to divide property after a marriage breakdown. The same legislation also applies following the break down of a de facto relationship, except in Western Australia, which has its own special legislation for de facto couples. If you need advice about property division following the break down of a de facto relationship and you live in Western Australia, you should review the Western Australian Court website. Otherwise, all family law matters are heard by the Federal Circuit and Family Court of Australia (the “Court”).
The Commonwealth statutory Family Law Rules set out the obligations of both parties when dividing up property after a relationship breakdown. One of these rules is the Duty of Disclosure (Rule 6.06), which states that in a financial case you must make full and frank disclosure of your financial circumstances to your ex-partner and the Court.
What is a financial statement in family court?
A key document that you will need to prepare as part of disclosure is a Form 13 Financial Statement. This form is designed to layout the most important financial information about each party in a financial case.
This article provides detailed information about the Financial Statement to help you understand your obligations in relation to disclosing your financial resources.
What do I have to disclose to comply with the duty of disclosure?
A Financial Statement requires you to provide your employment details, total earnings and investment income (including interest payments and dividends) and all of your financial resources (such as superannuation interest, real property, cars, stocks and shares, cash in the bank, and furniture). You are also obliged to disclose any financial resources held in more complex structures such as trusts and companies.
You must disclose information if it is in your possession or control, whether that is as a hard copy document or electronically. This includes providing valuations of assets, copies of pay slips or Centrelink statements, copies of tax returns, statements from banks, superannuation statements, and documents and deeds that relate to companies and trusts. The duty to disclose is not meant to be punitive and the Court will usually understand if you are not able to provide everything as long as you genuinely attempt to comply. You can also ask the Court for an exemption on the basis that some information is privileged (such as correspondence with a lawyer) or irrelevant to the dispute.
You must also disclose your total liabilities and information about any assets that you have disposed of since the separation, or in the prior 12 months.
Your signature in Part A of the Financial Statement signals that you have sworn (or affirmed) that you are aware of your obligation to make full and frank disclosure, and that all of the information in the Financial Statement is true to the best of your knowledge, information and belief. You must take this obligation seriously and provide all of the relevant information.
Completing the financial statement
You must complete every question on the Financial Statement. If you do not know the answer to the question (after a reasonable effort to discover the answer) you can insert “NK” to indicate that the answer is “Not Known”. If the answer is not relevant to your circumstances, you can enter “NA” to indicate that is it “Not Applicable”. If the answer to the question is zero, then enter “NIL”, and if a figure is an estimate then enter a “E” prior to the figure.
Part B of the Financial Statement is the Financial Summary. You actually complete this after you complete the rest of the form, because this requires you to insert totals that you calculate later in the form.
Part C requires you to provide information about your employment. If you are not currently employed you can enter “NA” into the relevant fields.
Part D Question 9 asks for your total gross income, which is your salary/wages before tax as a weekly income. You need to proceed carefully here, as most people are not paid weekly, and you may overstate your income if you accidentally enter your fortnightly salary information. The amount you disclose here must be the total income tax salary, so including all overtime, loading and bonuses.
Part D Question 9 asks about investment income. A wage earner without investment income (such as rent from an investment property) might naturally think this section does not apply to them, but most people have some money in the bank and therefore receive some interest payments. You should insure that you disclose this amount, even if it is minimal.
Part D Question 14 asks about benefits that you receive from your employment or business ownership. This includes benefits such as paid superannuation, a car, or mobile phone.
Part D Questions 12 and 13 ask you to provide the weekly amount that you receive from government benefits, maintenance and child support.
Part D Question 15 asks you about other income, such as board, income received from a trust, or workers compensation payments. You should also include any lump sums that you received in the last 12 months in this section as a weekly figure.
EXAMPLE: Six months ago you received a lump sum workers compensation payment of $20,000.00. In this case for Question 15 you would divide this by 52, and enter $384 as the weekly amount.
Part E requires you to list other income earners in your household. The Court will not necessarily take these incomes into account, but supplying this information provides the Court with a full picture of your financial position.
Part F lists any expenses that someone else pays for on your behalf. For instance, if your employer pays for your gym membership, you should include this fact in this section.
Part G is your weekly personal expenditure. Under this section, you are required to specify weekly expenses much like you are completing a budget. This will include your income tax payments, personal contributions towards superannuation, mortgage/rent, council rates/taxes and local government charges, day care fees, club levies, personal expenses (such as clothes and toiletries), entertainment, credit card/personal loans/hire purchase payments, food, public transport/petrol, registration and car repairs, health insurance premiums, mortgage payments and expenses arising from investment properties.
Part G Question 20 asks about superannuation contributions, but you only need to complete this if you make contributions over and above employer contributions.
Part G Question 32 can be confusing as it requires you to enter a figure that is not calculated until later in the form, in Part N. To make it even more confusing, if you are only seeking a property settlement, and not an order for spousal maintenance or child support, you do not need to complete Part N, and therefore you will not have a figure to enter into Question 32.
Part H requires you to enter the weekly amount that you pay for the benefit of someone else. For instance, this is where you would include the amount that you give as a regular support for a child at university.
It is important to remember that the form requires the average weekly amount. If pay an expense monthly, the best approach is to multiply the figure that you pay by 12 and then divide it by 52 (rather than dividing the monthly payment by 4).
EXAMPLE: You have education expenses of $1,000.00 per month, so you work out the yearly cost by multiplying by 12 months ($12,000.00) and then the weekly amount by dividing by 52 ($230.77). This is more accurate than if you just divided $1,000.00 by 4 to calculate a weekly rate, which would give you $250.00.
Property Owned by You
Part I asks you to report the property that you personally own. This includes real property, all accounts that you hold in banks/building societies/credit union/financial institutions, and shares, life insurance policies, motor vehicles, as well as interests in any business, household contents and personal property.
You need to report the value of your share rather than the whole value of the item.
EXAMPLE: You and your former partner jointly own an house worth $800,000.00, so you record the value of your share as $400,000.00. It is easy to misinterpret these questions and significantly overstate your assets, which can have a negative impact on your outcome.
Part I Question 39 asks for the value of any life insurance policy. This is not the amount that you are insured for, but any “surrender value” that you recoup if you cancel the policy.
Part I Question 42 asks for the value of your household contents. This is the amount that you could obtain if you were to sell all of the items on Facebook Marketplace or Gumtree, not the replacement value if you needed to replace everything new.
Part K asks about your current liabilities. This is different to Part G, which asks about your personal expenditure, including the amount that you have to pay to service debt. By contrast, Part K is asking how much you owe in total for these liabilities.
This is the section where you provide total figures for tax debts, credit card balances, hire/purchase/lease agreements, personal liabilities (including HECS debts), and personal business liabilities (eg trade debts that you owe as a sole trader or a member of a partnership).
As part of your property division you will submit a completed superannuation information form to your superannuation fund. Your fund will then send you a current statement that includes all of the information required in Part J, including the name of the plan, the type of plan, and the gross value.
Part L requires you to disclose any financial resources that are available to you. For instance, if you expect to receive a payment as part of a personal injury claim, you must disclose this even if you are not certain that you will receive this payment.
You must also disclose financial resources that are not in your name, if you are the beneficiary or potential beneficiaries of these resources. For instance, if there is a discretionary trust that lists you as a potential beneficiary, then you need to disclose this fact, even if you have no guarantee that you will receive any funds from the trust.
In fact, you must note any trust entity of which you are the appointer, trustee, or a beneficiary. You must also disclose if you are a shareholder or director of a company that is an eligible beneficiary under a trust. This includes trusts where you have the direct or indirect power to remove or appoint a trustee, amend the terms of the trust, or the power to appoint or remove a trustee.
Disposal of Assets
Under Part M you must also advise the Court of any assets that you have disposed of since the separation, or in the 12 months prior to separation. This includes assets that were sold, transferred, assigned, or given away as a gift. However, you do not have to disclose the disposal of property where you and your former partner agreed to the disposal, or where the asset was disposed in the ordinary course of business.
EXAMPLE: You and your partner agreed to sell the family home so you do not need to disclose this disposal to the Court in your Financial Statement. Similarly, if you are in the property development business which in the ordinary course involves the sale of real estate, then you do not need to disclose this type of business activity in your Financial Statement.
Reviewing and Signing
If you are drafting these documents yourself, you will need to complete every question, insert your full name and affix your signature, in the presence of an authorised witness such as a solicitor, justice of the peace, or notary public. Alternatively, if your solicitor is handling your paperwork, you will only need to review the Financial Statement to ensure that it is accurate and then sign it, your solicitor will handle everything else.
Part O is the place where you can explain anything that is not self-evident from the Financial Statement. You can also add attachments, such as an affidavit, in the form of a written statement with paragraph numbers that gives brief and factual information to the Court.
You can make an amendment after filing your Financial Statement by submitting a new Form 13.
When do I disclose?
You will need to provide full financial disclosure as soon as you can after you start negotiating a property division with your former partner. If you commence Court action, you will need to complete the Financial Statement when you file your initiating application.
It is important to know that you complete the form based on your present circumstances, not based on your circumstances at an earlier date, such as upon separation. This is often a shock for someone who has diligently saved since the separation to find that their former partner may be entitled to some of these post-relationship savings. However, the Court will give consideration to the question of who contributed an asset to the property pool, so your ex-partner may not be entitled to half of everything you currently own.
The duty of disclosure is not something that you do once and then it is over. You have an ongoing obligation of disclosure, which means that when something changes in your financial circumstances you need to provide additional information to your former partner (through their solicitor, if applicable) and the Court. The obligation to continually update this information only ceases when the court makes final orders or when you reach a final agreement with your former partner.
How do I provide and receive disclosure?
The Family Law Rules provide for a number of ways to exchange disclosure and comply with your obligations in family law proceedings. Disclosure can be exchanged by way of:
- Production of documents
- Inspection of documents
- Copying of documents
- List of documents
- Orders for disclosure
- Answers to specific questions
The most commonly used method for disclosure is for you to provide a list of documents for disclosure to the other side, and then providing required documents upon request. This exchange can be undertaken by electronic means or in paper form. For instance, if there are a large number of documents, they can be placed in a shared drive with the other side given the access details.
Consequences of non-disclosure
Disclosure allows both parties to know the full extent of the assets from the relationship, and to ensure the fairness of the division of those assets. It is also an important step in narrowing down the focus of a property dispute. For example, you may believe that your ex-partner has a valuable asset in a business. Through the process of disclosure it may become clear that the business actually has more liabilities than assets. This will allow you to stop spending time and legal fees arguing about something that does not have any value to be shared.
Failure to provide full and frank disclosure or providing a false undertaking as to disclosure can result in severe penalties. In the first instance, failure to disclose is likely to result in a Court order to comply with disclosure. Continued failure to disclose, or deliberate provision of false or misleading information can result in the Court making orders to dismiss the proceedings or for you to pay costs to the other party.
You may also be found guilty of contempt of court for non-disclosure, or for breaching an undertaking as to disclosure. The court can impose a fine or a term of imprisonment for contempt of court.
Where to find the financial statement form?
The Financial Statement form can be found on the website of the Federal Circuit and Family Court of Australia. This form is used by solicitors who are assisting clients to complete the Financial Statement.
If you do not have a solicitor, you should access the Financial Statement Kit to help guide you through completing the form.
Do you need a family lawyer to prepare your financial statement?
You do not need to have a lawyer to prepare your financial statement. The Court has a kit specifically designed for self-represented litigants to help them to complete the Financial Statement and other necessary steps to resolve family matters in the Court. However, it is advisable for you to at least have a solicitor to look over the form before it is submitted, given the importance of ensuring that this information is accurate.
Here For You
The experienced family lawyers at Unified Lawyers can help you with every aspect of a family court proceeding, including helping you to prepare and understand financial statements in the Federal Circuit and Family Court of Australia.
Please get in touch with us today on 1300 667 461 to discuss your options.