Throughout my time as a family lawyer, I have noticed that when couples do decide to officially separate, there is sometimes a desire for it to “all go away” – i.e., one of the parties may choose not to cooperate, hoping that everything will stop dead in its tracks.
Within the context of family law proceedings, it is not at all uncommon for parties to seek relevant financial information from their ex-spouse. In turn, parties to a dispute will often instruct their solicitor to write letters seeking such information, to put arrangements in place and to bring applications before the court.
A separated party (particularly if they were not the one to make the decision to separate) may not be in the right state of mind to deal with these various requests, and may instead decide to ignore them in the hope that they will stop, that the court proceedings will in turn go away, and that life in general will all go back to normal.
My experience is that this rarely, if ever, occurs.
The difficulty with this head-in-the-sand approach is that, unfortunately for those looking to avoid proceedings, the machines that are the Family Court of Australia and the Federal Circuit Court of Australia do not stop, whether or not you decide to participate in it.
One of the common ways for property matters to commence is that one party will ask the other to provide their financial information – referred to as ‘financial disclosure’. Financial disclosure must be provided by each party, with the Family Law Rules setting out just what is and isn’t considered appropriate disclosure in relation to property matters.
It is quite understandable that parties to family proceedings may not wish to disclose their financial information, and similarly, that they might view the numerous requests for various documents as insurmountable and choose to ignore them. With this said, it is important to note that the usual consequence of ignoring requests for financial disclosure is that proceedings will be commenced without that party’s involvement.
Not only will this increase the legal fees that each party will be required to expend, it may have cost implications (i.e. the person who fails to provide financial disclosure may be required to pay the other party’s costs if the proceedings are brought about as a consequence of such a failure) – and in any event, resistance to providing financial disclosure is essentially futile.
Once they commence, a person can choose to ignore proceedings by continuing to fail to provide financial disclosure, or by failing to attend court. In relation to financial disclosure, there are a number of cases (e.g. Weir v Weir [1992] 16 Fam LR 154 and Black v Kellner 15 Fam LR 343) which support the proposition that the Family Court need not be “unduly cautious” in determining a person’s financial circumstances.
In practice, this simply means that if you fail to provide either the court or the other party to your matter with relevant information regarding your financial circumstances, the court will make assumptions with respect to your possessions, and will proceed on the basis of that assumption whether it is accurate or not. With this in mind, it would be within your best interest to take any request for financial disclosure very seriously – if for no other reason than to protect yourself and your assets as best you can under the circumstances.
In the event that you make the decision not to participate in family law proceedings, the Family Court will proceed to what is referred to as an “undefended hearing”. That is, the court will make orders in your absence. These orders can include the sale of property, the sale of shares in companies, superannuation splitting orders and any other order that may affect your financial situation. The fact that you are not there to participate in those orders being made is of little consequence to the court, so again – it is in your best interest to participate in proceedings.
You will be given an opportunity on at least one (or more likely on two) occasion(s) to present yourself to the court and provide input into the process. However, in the event that you do not take up those opportunities, the court will simply make a decision that is just and equitable based upon the information that is before the court.
In summary, it is crucial to understand that simply putting your head in the sand with respect to family law matters will not make them go away. It is important for you to pay close attention to family law matters in their early stages, and in my experience, it is in circumstances where you may not have the emotional wherewithal to deal with matters that you should look to hand them over to a solicitor to manage that process for you.
If you have been inundated with requests for documents, or other subjective court proceedings that you do not know how to deal with, please do not hesitate to contact one of our Accredited Family Law Specialists.
