The steps you must take before asking the Family Court for a financial order

Parties who are contemplating a divorce or separation that will involve property settlement can apply to the Family Court for a financial order if they cannot resolve their differences.

The Family Court encourages parties to make a property settlement on their own. To that end, the court has adopted certain procedures that parties must follow before seeking a financial order.

Dispute resolution

Before applying for a financial order, the parties to a divorce or separation must follow certain pre-action procedures. These include making a good faith effort to arrive at a negotiated property settlement. If you cannot work out your differences without outside help, you must:

Use a dispute resolution service;

• If dispute resolution is unsuccessful, provide the other party with a written settlement proposal that explores options for settlement; and
• Comply with the duty of disclosure.

Except in urgent cases and those meeting other specified criteria (including the threat of violence), the failure to engage in dispute resolution before applying to the Family Court for a financial order can result in financial penalties.

Duty of disclosure

Before commencing a proceeding that seeks a property settlement in Family Court, each party must make a full and frank financial disclosure to the other. This duty of disclosure, specified in more detail in Family Law Rule 13.04, requires each party to tell the other about:

All sources of earnings and income, including but not limited to wages, bonuses, interest, business income, superannuation and other retirement income, dividends and other investment income, and trust income;

• All assets in which the party has a direct or indirect ownership interest, including bank accounts, stocks and other investments, businesses, trust funds, vehicles, collections, jewelry, tools, pending inheritances, and all other assets having financial value;
• All assets that were sold, given away, or disposed of within one year prior to, or at any time after, the parties’ separation; and
• All debts and liabilities including contingent liabilities.

Before the first court date in a Family Court case that involves a property settlement, Family Law Rule 12.02 requires the parties to exchange all of the following documents:

A copy of each party’s three most recent tax returns;

• A completed superannuation information form if the party has a superannuation interest;
• Financial statements for the last three years pertaining to any business, partnership, or trust in which the party has a specified ownership interest, as well as certain documents establishing the nature of the ownership interest;
• Business activity statements for the previous twelve months; and
• A market appraisal or opinion of value regarding assets in which the party has an ownership interest (unless the parties have agreed upon a value).