Disclosure in Property and Financial Cases

In addition to the general obligation to provide full and frank disclosure, the court rules include specific disclosure requirements for property and financial cases.

Disclosure in property and financial cases involves:

• disclosure during the pre-action procedure
• filing a financial statement
• exchanging documents before court events
• additional detail on the meaning of full and frank disclosure

Pre-action procedures

The duty of disclosure starts with the pre-action procedures, so both parties can be informed when attempting to come to an agreement without the Court's involvement.

Financial statements

When you apply for property or financial orders, you need to file a Financial Statement (Form 13).

If that does not fully meet your duty of disclosure, you also need to file an affidavit giving further particulars.

If your financial circumstances change after filing the Financial Statement, you need to file an amended statement within 21 days of the change of circumstances (unless the amendments can be set out clearly in 300 words or less, in which case you can file an affidavit with details of the changes in circumstances).

Exchanging documents before court events

In addition, there are specific documents you need to exchange before the first hearing. You also need to make sure all these documents have been exchanged prior to a conciliation conference.

There are also specific documents to be exchanged prior to the first hearing in relation to spousal or defacto maintenance orders.

Detail on full and frank disclosure in property and financial cases

The general duty to make full and frank disclosure applies to property and financial orders. The Court rules provide information on how to meet that duty.

The rules require detailed disclosure of:

• All income or earnings (whether paid directly to the party, or to another party, person or legal entity)
• All interests in any property or legal entity that is fully or partially owned or controlled by the party, and details of any income earned by that legal entity (even if the income is paid to someone else).
• Any property disposed of by the party (or a relevant legal entity) by way of sale, transfer, assignment or gift that may affect, defeat or deplete a party’s claim in a financial case, including transfers:
• in the 12 months immediately before the parties separated, or
• since separation of the parties
• Transfers to not have to be disclosed if they were made with the consent or knowledge of the other party, or made in the ordinary course of business.
• All liabilities of the party or any relevant legal entity.
• Any other financial resources

A legal entity is any:

• corporation that is not a public company
• trust
• partnership
• joint venture business, or
• other commercial activity.

A trust includes any trust where:

• the party is the appointor or trustee;
• the party, party’s child, spouse or de facto partner is a beneficiary;
• a corporation is a beneficiary and the party, party’s child, spouse or de facto partner is a shareholder or director of the corporation.
• The party has any direct or indirect power or control over the trust, including the power to remove or appoint a trustee, amend the terms of the trust, or disapprove a proposed amendment.

This information is provided as an overview, and you should read Part 13 of the Family Court Rules for detailed information on disclosure in property and financial cases. You should seek legal advice if you are unsure of your disclosure obligations.

Superannuation

Parties to property settlement proceedings may apply to the Court to request superannuation information from the Australian Taxation Office (ATO) about their former spouse.

To make the application, you will need to complete a “Superannuation Information Application (ATO)” on the eCourts Portal of WA through the My Current Matters screen or the Lodge a Document screen.

The Court will then request the ATO to disclose certain superannuation information for the purpose of the Court proceedings. When disclosed, this information is provided by the Court to the requesting party, the other party, and their lawyers.

The information includes the identity of superannuation funds. This information can then be used by the requesting party to obtain further information from the fund by the use of a subpoena, or by completing a Form 6 Declaration and Information Request Form directed to the fund (see the Superannuation Information Kit).

Last updated: 18-Apr-2023

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