What procedural and evidentiary requirements need to be created to establish a streamlined case management process to allow easy and affordance access for small claimants? Eligibility for the small claims process: should it be based on a potential party’s share of the asset pool as opposed to the total size of the pool? Should eligibility requirements also take into account the financial vulnerability, party’s the particular issues in dispute and the nature and value of assets? Improving financial disclosure and superannuation There is an obligation on parties to family law proceedings to make full and frank disclosure of their financial position. Failure to comply with this obligation can lead the court to apply penalties or exercise its discretion adversely to the non-disclosing party when deciding property settlements. For women in our project, however, issues with obtaining proper financial disclosure arose before matters reached adjudication, causing delay and inhibiting effective negotiation (as discussed above). In the Small Claims Large Battles project, over two-thirds of clients experienced delay caused by difficulties obtaining full financial disclosure from their former partner. Many clients were forced to initiate court proceedings where they otherwise might have negotiated a property settlement. There are few effective disincentives for non-disclosure. Alternative information-finding processes, such as issuing subpoenas, are costly and by no means guaranteed to return the required information. Strengthening mandatory financial disclosure, through more intensive case management, greater use of registrar powers, or by permitting courts to obtain information about from sources such as the Australian Taxation Office parties’ assets (ATO), would greatly improve the speed and fairness of property settlements for vulnerable parties. Superannuation: The FLA recognises superannuation as a relationship asset, but the process for obtaining superannuation splitting orders is too complex for vulnerable parties to navigate. First, without a former spouse voluntarily disclosing the name of their superannuation fund, there are no other mechanisms which allow a party to locate
What procedural and evidentiary requirements need to be created to establish a streamlined case management process to allow easy and affordance access for small claimants? Eligibility for the small claims process: should it be based on a party’s potential share of the asset pool as opposed to the total size of the pool? Should eligibility requirements also take into account the party’s financial vulnerability, the particular issues in dispute and the nature and value of assets? Improving financial disclosure and superannuation There is an obligation on parties to family law proceedings to make full and frank disclosure of their financial position. Failure to comply with this obligation can lead the court to apply penalties or exercise its discretion adversely to the non-disclosing party when deciding property settlements. For women in our project, however, issues with obtaining proper financial disclosure arose before matters reached adjudication, causing delay and inhibiting effective negotiation (as discussed above). In the Small Claims Large Battles project, over two-thirds of clients experienced delay caused by difficulties obtaining full financial disclosure from their former partner. Many clients were forced to initiate court proceedings where they otherwise might have negotiated a property settlement. There are few effective disincentives for non-disclosure. Alternative information-finding processes, such as issuing subpoenas, are costly and by no means guaranteed to return the required information. Strengthening mandatory financial disclosure, through more intensive case management, greater use of registrar powers, or by permitting courts to obtain information about parties’ assets from sources such as the Australian Taxation Office (ATO), would greatly improve the speed and fairness of property settlements for vulnerable parties. Superannuation: The FLA recognises superannuation as a relationship asset, but the process for obtaining superannuation splitting orders is too complex for vulnerable parties to navigate. First, without a former spouse voluntarily disclosing the name of their superannuation fund, there are no other mechanisms which allow a party to locate
family-law_100._womens_legal_service_wlsv_submission_11_may.docx