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The importance of disclosure in an Application for Consent Orders

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It’s easy to say that the purpose of an Application for Consent Orders is to formalise an agreement, to record the terms of a bargain, as to the financial affairs of a separating couple.  At a simplistic level, that is true.  However, it is more than that.

It comes as a surprise to many people that the Family Court has a substantive and determinative role in the process: it assesses each agreement before giving its imprimatur. The Court is not there merely to rubber-stamp the agreement.

The Court’s role stems from the requirement under family laws that its orders be “just and equitable”. Again, it comes as a surprise to many people that the mere existence of an amicable agreement is not of itself a guarantee that the Court will see their arrangements as just and equitable.  Rather, the Court must make its own assessment of the matter and it does so with reference to the factors set out in the relevant family laws and the body of case law that has built up around those laws.

Thus, given the parties to an Application for Consent Orders are engaged the Court’s process, they must play by the Court’s rules.

Which brings us to the topic of disclosure.

The Family Court’s brochure Duty of Disclosure in Family Law Cases, available to download from its web site, is a handy summary of the relevant rules.

The duty of disclosure is your duty to provide the other parties with all information and documents which are relevant to the issues in the case. Both you and your partner must make full disclosure of your financial circumstances to each other before signing the application for consent orders.

A failure to give full and frank disclosure may have serious consequences. These consequences may include any consent orders being set aside.

Both parties are entitled to make requests of each other for information regarding that person’s income, assets, liabilities and financial resources.  Further, both parties are entitled to request copies of documents from each other to support and evidence their financial information.

Disclosure by you

It is important that you read the application thoroughly and that you satisfy yourself that the application and orders are complete and accurate in every detail as regards statements about your income, assets, liabilities and financial resources.

Full and correct disclosure from you is important; firstly, because you will sign the application as an affidavit – i.e. a statement you swear is true and correct.  There are penalties for making a false affidavit.

Secondly, any failure on your part to disclose all of your income, assets and financial resources in the application or any false or incorrect statements therein may constitute grounds upon which the consent orders could be set aside by the Court on the application of the other party at some later time.

You must have a reasonable basis for the value of any item you disclose in the application. You should obtain written or formal valuations from independent, qualified valuers of any items of significant value where you are unsure as to the value of the item.

Disclosure by your partner

Your partner must provide the information that is required to complete the Form 11 application for consent orders regarding their income, assets, liabilities and financial resources.

You should consider this information carefully and consider whether you wish to make further enquiries.

While the application form and process does not specifically require it, you are entitled to request the other party provide further information and documentary evidence to substantiate the information they have provided.

If you have any concerns about the disclosure from other party, we recommend that you make specific requests of them to ensure you have full disclosure of their financial position and verify the information supplied by them with reference to source documents (such as bank statements and superannuation statements). Further, we recommend that you do not sign the application until you have received this information and you are satisfied as to the disclosure from the other party.

 

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