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Practice Manual
Completing Form 17
incorporating superannuation changes effective January 2003 |
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Practice Manual
Completing Form 17
incorporating superannuation changes effective January 2003 |
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Practice Manual Updates - July 2000 and January 2003 amendments to Form 17. This replaces the text from pages 5-14 to 5-28 inclusive. The commentary below was last updated on 24 March 2003
Peter Szabo
Completing a Financial Statement (Form 17) - simplified version
With the simplification of procedures, the court introduced a revised Form 17 financial statement, along the lines of the Tax Pack tax return format”. Unfortunately, the revised statement is a ‘tick-a-box’ style document which is difficult to complete. While the Taxation Department may be able to easily check the figures in such a form, carefully cross-examining a witness in court on such a document is not easy. In July 2000 the court introduced a simplified version of the form. The main effect was to remove the requirement to set out weekly expenditure on general living unless spousal maintenance or child support was in issue. In those cases a new Section F has to be completed. The pages have been more efficiently set out. For example the summary on Page 2 of the Practice Manual version now occupies a quarter of the front page. The explanatory notes have now been moved to the back of the document.
The form requires a party to set out their current financial information. Hence, the information should be accurate as at the date the document is completed. No cover sheet is required, as the financial statement follows the boxed format (Order 2 Rule 3).
In most cases, the court will insert the file number and the place and date of hearing when issuing the Form 17 with the originating application. Insert the deponent’s full name, address and occupation into items 1 and 2. The form calls for telephone and fax numbers. Why these details are required is a mystery. Confidentiality may mean this information should be omitted or a ‘care of’ inserted. Insert the name and address of the deponent’s employer in item 4, with the length of time and status of employment (full time/part time) in item 5. Item 6 calls for details if the deponent is self employed.
The document is sworn, with the affidavit portion being set out on the first page. This is the only place that a signature is required. A Justice of the Peace or other authorised person must sign as witness.
Details of whether the document is prepared by the applicant, lawyer or other are also required. The “Other” option may relate to a third party who has been ordered to file a Form 17 Financial Statement. (Order 16 Rule 6). Check the appropriate box and insert the name of the person preparing the statement if it is a lawyer.
Precedent: Financial Statement (Form 17), see Attachment 5B.
Full and Frank Disclosure
People very often neither know nor can they estimate how much they spend in a given year. Before completing Form 17, a client should be given the opportunity to spend some time considering it. Note that the document is an affidavit and must be accurate. Indeed, in financial matters, Form 17 is the most important document.
The affidavit section contains the statement that:—
‘I am aware that by law I have an obligation to make a full and frank disclosure to the Family Court of my financial situation. In particular I have
disclosed in this document all matters I am required to disclose by Order 17 Rule 3 of the Family Law Rules.’As some items clearly cannot be stated precisely, provision is made for estimates. The client should make every effort to ensure accuracy, including making reference to cheque butts, receipts and other similar records. The financial summary at the foot of page 1 is completed last.
Notes on Completing Form 17
These are attached to the front of the form but should be referred to before completing the form. The first information page is headed ‘Important notes on completing this form’ . It indicates that:
- every question must be answered;
- all figures inserted must be rounded to the nearest whole dollar;
- if giving an estimate, insert the letter “E” before the amount stated;
- if information is not known, then use “NK”;
- if the information is nil, then write “NIL”;
- if there is insufficient space, additional information is to be attached; and
- most importantly – you must provide full and frank disclosure.
A guide to legal terms is then set out, no doubt to assist applicants in person. Then follows a page on the effects and requirements of full disclosure under Order 17 Rule 3. The Rule is set out in full in the notes.Notes on Other Documents
Other documents that must be served on the other party 3 days prior to the Case Conference or the Directions hearing. Pursuant to Order 17 Rule 4, these include:—
(a) copies of the person's 3 most recent taxation returns;
(b) copies of the person's 3 most recent taxation assessments;(c) if the person is a member of a superannuation plan:
(i) if not already filed or exchanged — the completed superannuation information form for any superannuation interest of the person; and
(ii) for a self-managed superannuation fund — the trust deed and copies of the 3 most recent financial statements for the fund;(d) copies of the 3 most recent financial statements and taxation returns of any relevant partnership, trust or company (except a public company).
Businesses, Partnerships and Companies (the Issue of Control):
Where the husband and the wife are equal shareholders and directors in a private company, it is arguable that one party does not have ‘control’ in the strict sense of the word. When acting for the husband and ‘prime mover’, do not rely on that technicality. Disclose the information as soon as possible and deliver the material within 14 days of the directions hearing.
Reference will be made later in this text to what value should be allocated to any interest in the corporate entity. The reference to ‘other documents’ in the notes section of Form 17 is to ‘any relevant partnership, trust or company (not being a public company’). This is a wide reference.
A careful reading of Order 17 Rule 3 is warranted regarding your client’s obligation to provide full and frank disclosure. The requirement for full disclosure is also spelt out in various court decisions.
In the precedent fact situation discussed here, the parties do not have an interest in any corporate entity, partnership or trust. Hence, the information is not required to be completed and values set out in the financial statement are given as NIL. In appropriate cases, you will need to confer with an accountant regarding the required information. It is recommended that you obtain counsel’s advice regarding the presentation of such financial statements.
Financial Summary
Sections A to F in the financial summary on page 1, correspond with the totals in the detailed Parts A to F which follow it. These totals must be inserted as directed in this summary section. In practical terms, the financial summary is therefore completed after all of the other information set out in the following pages has been completed. Whilst the summary is theoretically useful, in many instances the simple aggregate of total financial resources provides a misleading picture. This aspect will be commented on further.
The full details in Parts A to F should be completed first as follows:—
Part A: Current Average Weekly Income and Receipts from All Sources Before Tax
The client’s current average weekly income and receipts from all sources before tax must be set out in this section. All income must be included, even if it is not taxable or it is received for the benefit of another person. If not enough room is available on the page, a list of additional items may be attached to the form. Part A should be completed as follows:—
Question 7 (Salary or wages before tax): Entries as to the personal exertions income of the deponent are straightforward in most cases. Note the instructions at the top of the page requiring what is received on average each week.
Question 8 (Income from Investments – before tax): This can include bank or other investment earnings. There is very little room in the
box for details other than perhaps to say, for example, ‘ANZ Bank, Camberwell - interest’ or simply ‘Bank – interest ’. If there are several bank accounts, a full summary can be inserted in the box and the combined total referred to in the total weekly income under this heading. A full explanation should then be set out in an attached schedule. If your client receives dividend income, the source of the dividends, with the average weekly return likewise being set out. Rental income is referred to under Question 13.Question 9 - Social Security Payments: The first version of this form had the heading " Personal exertions" - which was an error. Any such payments should be included under this heading, as a weekly amount.
Question 10 (Maintenance and Child Support): The source of maintenance and child support will usually be the respondent husband and the benefit will either be for the wife and children, or the children alone. Although payable monthly, the weekly amount is required in this form. One wonders why three rows are required. It must be to cover the cases where there are blended families the children having different fathers.
Question 11 - Income from Business/Partnership: Drawings from a business or partnership and the like are relatively straightforward. However, if arriving at the net income before tax, be careful not to include outgoing such as leases in Question 26 under Part B. The name of the partnership is set out, along with the percentage interest. The full address and postcode of the partnership then follows.
Question 12 - Benefits from employment/business: When giving details of the deponent’s employment, the major difficulty is deciding how to outline the benefits obtained through a party’s employment. It may not be possible to precisely value a benefit; nonetheless it must be stated. Common benefits include the provision of a motor vehicle, paid expense allowance, telephone account, and entertainment expenses. Examples of benefits are discussed below. Inevitably, if the deponent has significant benefits, the entry will be “see attached” with the total dollar figure inserted. The attached sheet would contain the details. Your client’s accountant may need to assist in properly completing this section.
Motor Vehicle: Details would include the age of the vehicle, its make and model number. The amounts requested should include running expenses, registration and insurance, and parking.
Gross or Net Benefits? What is often forgotten is that if the stated benefit from the employer is, say, $10,000 per annum for motor vehicle expenses, another person without this benefit would have to earn $15,62500 to be able to pay out that same amount. (FBT gross up is 48.5%) What, therefore, is the real figure to be inserted here? Form 17 only calls for the amount of the benefit from the employer. It is a matter of how that information is interpreted in due course and for what purpose. For example, this benefit is more important to consider when discussing child support than property proceedings.
Telephone: The percentage paid should be given, along with the actual average weekly amount. Ensure that the percentages and amounts tally with telephone expenses set out in Question 54 under Part F (if completed).
Superannuation contributions: Remember that this question only relates to contributions made by the employer. With Government-required superannuation funds now in existence, this information will need to be completed in almost all the circumstances. If an amount is inserted here, ensure that it is not included again under Part B, Question 18 on page 3 of Form 17. That section relates to superannuation contributions by the deponent (rather than their employer), probably to another fund not maintained by your client’s employer. It is usual for employer contributions now to be made under the compulsory Government funds commonly in existence.
Non work-related Travel: In theory, such details are well worth knowing about. In practice, one would expect all travel paid by an employer to be claimed as a tax deduction. Otherwise, why would that payment be made? One way of ascertaining what the full position is would be to request fringe benefit tax returns from the client’s employer to verify the situation. In checking on a respondent’s financial position, such information should be looked into as well, to ascertain the real value (net of tax).
Insurance: This could be any insurance which might be paid, such as medical, sickness, accidental disability, or other. If you have trouble inserting details use the phrase ‘see attached’ and enter the details at the conclusion of the document on a separate sheet.
Expenses Allowance: Details should be set out. Entertainment may be the most common expense allowance, although nowadays, such allowances are relatively rare.
Other Benefits: The possibilities here might be the payment of school fees, a rent allowance, clothing, Fly Buy points etc. If several other benefits are paid, the suggestion is to summarise them all on the attachment, giving only the global total in the space in Question 12.
Question 13 Other income - The Form 17 replaced by the simplified form had many more categories for income items. These included Rent, board, money from trusts and estates etc. As all of these items are not covered in questions 7 to 12, they must now be covered in Question 13.
Resist the temptation to insert more information on the one page under ‘other’. You will cause problems with pagination in your word processor. You will also throw out the layout of the pages. Remember, also that a financial statement can be handwritten [Order 2 Rule 2(5)].
Some items coming under this heading would include:Pensions and other benefits: (If not inserted in Question 9). Almost invariably, the source of any pensions and social welfare benefits will be the Department of Social Security. However, there may be other sources, such as overseas pension benefits. Other sources could be any income from a deceased estate, or distributions from any trust in which your client may be a beneficiary.
Rents: Should your client be fortunate enough to have a property portfolio, the details would be set out here. Again, the best approach would be to set out a summary of all sources. The net taxable income, after liabilities, should be set out. If this approach is not adopted and the gross return is referred to, the outgoings of the particular rental property should be inserted under ‘other fixed expenditure in Part B. See questions 21 and 22, which may be relevant there. To keep the situation simple, adopt the ‘net of expenses’ approach, and, if necessary, attach a schedule detailing how the summary was arrived at.
Board: If other persons reside in the same residence as your client, this information needs to be completed if any income is being received. There may be circumstances where your client is in a de facto relationship and no direct board is being paid. In that case, you may have to set out any contributions made by the de facto partner in Question 16 and balance that contribution by including their outgoings in Part F (if that is completed). Quantifying this contribution can be difficult.
Retirement Payments, Retrenchment Packages, etc. In the event that your client is entitled to retirement payments, retrenchment packages, or similar benefits, the details should be set out including the source and the type of payment made.
Trust distributions: Drawings from a trust may well involve loan account entitlements which, strictly speaking, do not constitute income. Nonetheless, to properly reflect the deponent’s position in a complex commercial structure, such details should be included here. An explanation in an attached sheet likewise would be necessary.
Funds from any Other Sources: Consider the circumstance where a wife whose husband has left her in the home cannot make ends meet and she looks to her family for financial assistance. This is provided by way of gifts or loans. When one completes the expenses section (Question 54, Part F), there is inevitably a short fall against the income of the deponent. That short fall is met either by contributions from family, as indicated, or by the client using capital resources, thus depleting savings or increasing credit card liabilities or overdraft facilities. Setting out the nature of the gift or advance from family will explain how the shortfall is met. Rather than referring to gifts from family, it may be preferable to refer to them as loans, which have to be repaid with or without interest.
Another possible use for Question 13 would be, for example, where a previous category did not provide sufficient space to insert the required details.Question 14 (Total) - The total of the average weekly income and receipts set out in Questions 1 to 13 should be inserted in Question 14. This total should also be inserted in section A of the financial summary on page 1 of Form 17.
Question 15 - Other Members of the Household: Here, you need to set out the names, ages, the relationship with your client, and the weekly income of all members of the client’s household. This includes details of any de facto spouse and all children. Their incomes must be declared. When a de facto spouse is involved, the gross income may not tell the full story. The de facto partner may have considerable outgoings (including the support of other children). In theory, it appears the designers of the Form 17 expect that the contributions of all members of the household will be set out under Question 15 and therefore their outgoings will be included in Part F, if it is completed.
Note that the contribution total under Part D is not inserted in the financial summary.Recommended Approach
Perhaps the best approach is to only include actual shared expenses of other members of the household, such as telephone, electricity, food, and to exclude personal expenses relating to those other members. (This means, for example, that you would exclude maintenance payments by a de facto spouse for that person’s children, lease payments by an adult son for his own motor vehicle, and so on.) The contribution made by ‘other members of the household’ will hopefully cover their share of the expenses included under Part F. However, experience shows (especially with adult children living with their parents) that very little contribution by way of board is ever made. Of course, if board is paid it should be included under Question 13 in Part A, not here.
Sometimes the client would prefer that no reference is made in the Form 17 to either the outgoings or the income of their de facto partner. However the author submits that such an approach would be wrong, for two reasons: firstly, Form 17 calls for it; secondly, the other party invariably knows about the de facto partner and becomes suspicious if no mention is made of that person. This may cause
unnecessary investigation or the issuing of a subpoena for the de facto partner to attend court.
Full disclosure from the start may avoid problems. Nonetheless, many clients find this area of disclosure a touchy subject involving considerable emotional drama. The author is aware of several cases where de facto spouses have been ordered to file and serve their own Form 17. Ultimately, the information must be given, however vehemently a client may protest.Question 16 – Expenses paid by others for your benefit: There are times when expenses are paid for by others, which could be family of the client, or the other party. To give a true picture of moneys received and expenses paid, the detail must be included, and theoretically this would be where to insert that detail. However, the total of this section is not included in Question 14. This may give a distortion to the true position. For example Question 20 in Part B the mortgage/rent might be paid by the other party, at say $250.00 per week. The corresponding item would be put here, under Question 16. The total fixed expenditure (Question 31) would be transferred to page 1 section B. It would not however, be balanced by the corresponding receipt in Question 16. Ie, following the form slavishly gives fixed outgoings $250.00 greater than receipts.
It would be better to insert the receipt under Question 13, and describe it as say, mortgage payments by husband. Thus, the amount paid is exactly balanced by what is received. Another possibility is to include the amount paid by the husband under the heading of maintenance and child support (Question 10 in Part A). A relative or parent often assists by paying rent or loan repayments. A similar approach can be adopted, by referring to that contribution from the parent or relative in Question 13 of Part A.
Perhaps the intention of the form creator is not to include the total of Question 16 in Question 14 , as the corresponding expenses should not be set out in Part B or Part F. With respect, the client has certain outgoings, and it is important to ascertain what they are, and how they are paid. Keep the income section Question 14 balanced with the outgoings sections contained in Questions 31 and 54. When determining maintenance and child support cases, it is then easy to refer to these summaries to ascertain the shortfall, rather than checking whether Question 16 impacts on that difference.
Another approach may be to include outgoings paid by the other party in Part B, and to mark the items with an asterisk. They are totalled, and the total amount included under Question 10 as maintenance. For example, spousal maintenance may comprise mortgage payments of $250.00 and loan repayments of $150.00. These would go under Questions 20 and 27 respectively and would be marked with an asterisk. At the bottom of the page you would insert an explanation for the asterisk – ie * paid by husband. Question 10 would be $400.00, ie the total of the two amounts.
Part B: Fixed Expenditure
Here you insert only the fixed weekly expenditure. The categories are clear and should present no difficulties. They cover the normal items expected, such as income tax, superannuation, mortgage payments, and the like. Although this information is to be completed in all cases, quite frankly the information has no bearing on property cases, and is really only of assistance when child support or spousal maintenance is in dispute. In those cases, Part F is completed and the two parts are carefully compared to Part A. Perhaps practitioners will agree amongst themselves to delete this section entirely in property cases only. This just might save clients on legal costs.
Some of the Questions call for detail, while others which should have more detail do not call for it. For example, in more complex cases involving several properties, it may be necessary to explain Question 22, rather than lumping all rates on all properties here. The preferred method of dealing with investment properties is set out in Part A Question 13 above, under the sub-heading “rents”.
Dealing with some of the items:Question 17 – Income tax: This is the average weekly tax. If your client has an irregular income, average the tax over a reasonable time to get a sensible weekly average.
Question 18 – Superannuation: Here the name of the fund and the weekly payment only is called for. If there is more than one fund, use the words “see attached” and provide the detail on a separate page. Avoid the temptation to add extra rows to the page, as pagination will be thrown out.
Question 19 – Union fees: This is self explanatory.
Question 20 - Mortgage instalments/rent: This should relate to the place in which the client lives. Board could come under this heading, but technically would have to go under Question 30 (other fixed expenditure).
Question 21 - Other mortgage instalments: This relates to holiday homes, and other investment properties. In all but the simplest cases, details should be set out on an attachment, with the words “see attached” inserted. The total of all of these outgoings is then given. If the net income from property investments has been inserted under Part A, Question 13 then you should refer to that attachment, and insert “NA” (for not applicable) in the total here. Otherwise you must include the gross income in Part A Question 13, and the relevant expenses here. In this way, the net position is achieved. The recommendation is to use the net figure for Question 13, and use an attachment to explain how that figure is arrived at.
Question 22 - Rates, unit Levies: If there is only one property, being the residential premises, no explanation would be needed. Otherwise the comments for Question 21 apply here.
Questions 23 and 24 - Life assurance and Insurance: Insert the type of policy, number and name of assurer/insurer. Where there are a number of policies, revert to the “see attached” approach. Give the global total in each section. The summary attachment will give the explanation.
Question 25 – School Fees and levies: This does not include extras such as books, uniforms etc. This is not a problem unless Part F is completed. That part calls for school expenses – being all expenses. If Part F is completed, the recommendation is to fill in Question 25 as “refer section F” and leave this item as “NA” for not applicable.
Questions 26 and 27 – Hire purchase/lease payments, Loan repayments: These could be for cars, other equipment. If there is a partnership, be careful not to include these outgoing if you have taken these expenses into account in arriving at the income there. Maintain consistency.
Question 28 – Minimum credit card repayments: Straightforward, but curious as to why it is needed. Interest payments are what should be called for. If outgoings are an issue (maintenance/child support cases) and Part F is filled in, some of the minimum payment will be duplicated there, rendering this information useless and unhelpful. The first version of the form called for the card number and expiry date. That was amended to require you to provide the name exactly as it appears on the card. No doubt to assist with the issuing of subpoenas later on.
Question 29 – Maintenance payments/child support: The question provides for one child only. There should be provision for more children, and a spouse. With the usual cases, the entry could be simply “spouse, children” or “children” with the amount and details of the order or assessment being set out. Why that information is necessary is curious. Nothing is gained by that information.
Question 30 – Other fixed expenditure: The “catch all” section. Board would be inserted here, as there is no strict provision elsewhere.
Question 31- Total: This is transferred to section B on page 1.
Part C: Assets – what you own
The instructions here call for current values. This means that for cases that are not resolved quickly, values will have to be updated closer to the hearing.
Question 32 – Home: Insert the current value. Details of ownership ensure that this property is included even if it is registered in the name of the other party alone, or in the name of a company (whether controlled by the parties or not). Theoretically, persons owning no home but renting have to insert details of the property. Common sense dictates leaving this entry blank in those cases.
Question 33 – Other real estate: There is space for two properties. If there are more, use the words "see attached" and put the total of all real estate on the one line. The way the form is set out does not make it clear whether to include property in the name of the other party alone, particularly given the comments for item 32. Similarly, item 34 calls for the client’s details only. The likelihood is that you should not include real estate in which your client does not have a legal interest. Hence no summary of the combined property of the parties is presented at this stage. To obtain the joint details of the parties, a careful combination of both party’s financial statements must be made, which is not necessarily an easy exercise. This exercise is undertaken when you complete the Form 17A financial summary for the conciliation conference (Refer to page 5-42 - and note that the form has been updated since the Manual was published. See updated commentary)
Question 34 – Funds in banks, building societies, credit unions or other financial institutions: The first verion of the form had the heading "Funds in banks, etc" The change tothe current version appears to have added nothing. The amounts at the date of swearing the affidavit should be set out, even though the amount in, for example, bank accounts could be very different from what was in existence at the time of separation. No explanations are required. This document is purely meant to be an exact financial record as at the date the document is sworn. The name of the institution and account number is called for.
Significantly, there is no provision for cash as such. If for whatever reason your client has significant cash sums, they need to be disclosed. Regrettably, it is likely that omitting a request for this information may encourage certain clients not to disclose this information. You should also ask for this information from the other party in appropriate cases. Otherwise, this information should be disclosed in item 40, or possibly in the “Additional Information”part at the end of Form 17. Similarly, an anticipated tax refund is an asset that should be disclosed somewhere. Importantly, you should ask for this information, both from your client and from the respondent.
Question 35 – Investments including shares in public or private companies: The space in the form will more often than not call for an attachment to set out anything more than a modest share portfolio. Values of public company shares can easily be obtained. A value of private company is a task for an expert witness. See the commentary for Question 38 in this regard.
Question 36 – Life assurance policies: The type and number of the policy is set out, along with the name of the assurer. With more than one policy, insert "see attached", putting the total net surrender value of all policies in the box provided.
Question 37- Motor vehicles: The year, make, model and registration number are inserted. The market value is inserted. As a yardstick, the client can check newspaper advertisements for comparable vehicles to obtain this information. Often the vehicle in the wife’s possession is registered in the name of the husband. Strictly speaking, that vehicle would not appear in this form if she is the deponent.
Question 38 – Interest in business/partnership: This valuation is a task for an expert witness. If giving a value that has taken liabilities into account, do not include that liability in Part D. This could apply for example, to Question 45 (Overdraft) and Question 47 (hire purchase/lease). The business could involve a company or trust structure, or both, although the explanatory notes suggest entitlements in trusts be set out in Question 51. Various issues such as the applicability or otherwise of CGT comes under consideration. This liability should be referred to at the end of the Form, under “Additional Information”. The issue is further discussed under Question 48. These valuation issues are beyond the scope of this manual. Counsel's advice is essential.
Question 39 – Household effects: A brief description of what they are (ie furniture) is given, and the box calls for the second hand value, not insurance or replacement value. A quick analysis of that market valuation can be obtained from publications such as the Melbourne Trading Post. Commonly, the person leaving the home attempts to have these valued on the higher insurance or replacement value. The position is clear from the form. If your client wants to apportion furniture, the best approach is on an item by item basis. Note that fixtures that would stay with the property on a sale are not to be included in this list.
Question 40 – Other personal assets: This is meant to cover all other assets of the deponent of whatever description. The description “personal” may give the impression that it relates to furniture or like items. However, it is meant to include a broad spectrum of items, including for example, such things as cash, an anticipated tax refund, money owed to the deponent, stamp collections, jewellery, gold coins, boats, caravans and the like. This category would also include items such as “frequent flyer” points. Again, a guide to the market value of may of the items described can be obtained from publications such as the Melbourne Trading Post. Interestingly, the box here does not instruct you to insert the second hand value. If referring to money owed to the deponent, include the name of the borrower, the term of the loan, and any security held. The “see attached” option is preferable.
Contingent Assets
As these may not ever be received, it is probably best not to include these items under Question 40. It is probably best to insert them at the end of the form, in the “Additional information” section. Possible inclusions would be money owed to the deponent, and choses in action (other possible claims). An example of the latter could be a workers compensation claim yet to be settled.
Question 41 – total: This is transferred to section C on page 1of Form 17.
This section was added to Form 17 with the changes in legislation effective 28 December 2002. Superannuation was moved from the Financial Resources Section F to here, as it is now defined as property. There is a statutory method of valuing it and details for each fund a client has must be included. The Court has issued a Superannuation Information Kit which contains the Form 6 Declaration, which must be used. The client needs to complete the declaration setting out the basis on which the information is sought, namely that the client is the member seeking information. The form is then sent to the trustee of the fund. The completed form as returned by the trustee is then attached to Form 17. The trustee is entitled to charge a reasonable fee for the information, and these typically range from $50.00 to $150.00 for accumulation and defined benefits funds. The form is somewhat complex and is going through revisions. You should make sure you download the current Form 6 from the Family Court Website. A separate form is required for each fund.
Delays in filing caused by timing in obtaining details from trustees
Different Registries have adopted different attitudes to whether an application requiring a Form 17 (ie a Form 3 seeking property orders) can be filed when section D is not properly filled ie with the completed Superannuation Information. This has resulted in significant delays in the filing of property applications, as trustees have 28 days to respond to a request. Many are taking longer. The Superannuation Information Kit indicates that the details should be exchanged 3 days prior to the case conference. This is consistent with the provisions in Order 17 Rule 4 (amended February 2003). This makes a lot more sense, as the great majority of cases involve very little superannuation. Parties can consider their positions after case management has taken place. Accordingly, the recommendation is to file the Form 17 completing whatever details are available, and if necessary simply putting the valuation as "NK" for not known. The Form 6 information is sent off with a view to getting the information prior to the case conference or first return date. There are other issues raised on whether you embark on obtaining superannuation information about the other party, using the Superannuation Information Kit. This will not be dealt with here.
It is understood that the Federal Magistrates Court is accepting Form 17 statements without the completed Superannuation Information Kit. Directions are being issued on the first hearing date regarding the completion of the Superannuation Information Kit for the final hearing. If the case is settled, you should be aware that the court is most unlikely to make a superannuation splitting order without this information. There is also the issue of the trustee being given noticeof the proposed splitting order. You should obtain counsel's advice on these issues. See also the article on Superannuation and Family Law by Peter Szabo.
Question 42 - Check one of the boxes for the type of fund involved. In most cases, it will be an accumulation fund. If in doubt about the information provided in the returned Form 6, you should contact the trustee of the fund to make sure of the information provided. You should also consider obtaining advice from an accountant or financial planner familiar with the area, and aware of the issues with superannuation. A contact I have found useful is Forsythes in NSW. They have an association with Stephen Bourke of Supersplitting Pty Ltd, who was instrumental in the drafting of the legislation. Communications can be efficiently and and cost effectively undertaken with them via email
Section D has room for three funds. If there are more, photocopy the page and attach it with completed details to the completed Form 17.
Question 43 - is the total of all superannuation funds. Hopefully you will not have to deal with more than three.
E: Liabilities – what you owe
Question 44 - Mortgage on home: The address of the home is to be given, as well as the name and address of the lender. A statement from the lender will give the up to date details.
Question 45 – Other mortgages: The information is the same as for Question 42. If there are several properties, it is best to use an attachment and include the total of all mortgages in the box provided. This would correspond with your treatment of Question 33 in Part C. It can be the same attachment, covering full particulars of all real estate, giving both values and mortgage liabilities.
Question 46 – Income tax: The income assessed is given, with the due date of payment, followed by the amount. There is no breakdown of primary and provisional tax. This differentiation may be important to make in maintenance/child support cases. Sometimes provisional tax can be varied. It is more an issue for the applicant checking the respondent’s claims regarding tax to be paid, to see whether liabilities are not artificially or temporarily inflated. That said, the Form is correctly completed by putting the total amount of tax owing. Any appeal against the assessment is detailed in the next box.
Question 47 – Overdraft: Details are set out here. If you have valued an interest in a business or partnership in Question 38 Part C, you may have already dealt with this liability. Do not include it twice. To maintain consistency, you would have an attachment referred to in that Question, setting out how the net value was reached. The overdraft would be set out in that attachment, and can therefore be referred to in this Question.
Question 48 – Credit cards: The card type, its limit, the number and expiry date are required here. The expiry date information seems unnecessary. Then follows the name of the company. Two cards can be detailed here. If there are more cards (and many people do have a number) set out these particulars in an attachment. The total liability under all cards should be inserted in the amount owing column.
Question 49 – Hire purchase/lease: As with overdrafts, if these liabilities relate to a business, the comments for Question 47 apply. The lender, number of payments to be made and the expiry date are required. The total residual amount is then inserted.
Question 50 – Other personal liabilities: These include items such as loans from family and friend, legal and accounting fees owing and unpaid, tax penalties and fines, repayments of social security payments, HECS (Higher Education Contribution Scheme) payments, and so on.
Contingent liabilities
There is no specific provision for contingent (possible) and deferred liabilities.
Examples include an outstanding action for damages against your client, possible costs of sale of real estate and capital gins tax on sale of investment properties. Estimates of legal costs for further proceedings could also be included here. This information, if relevant will need to be set out at the end of Form 17 in the section headed “Additional Information”. To include that detail here may distort the actual position, as contingent liabilities should not be included under the next question (51), being the total of actual liabilities.Another liability is that of legal and accounting fees associated with the Family Law proceedings. This can be controversial, but should be disclosed somewhere. Such payments if made by another person on the client’s should be set out (perhaps under Question 16), and the total then referred to as a liability under question 50. The way the current Form is set out means that the manner in which proceedings are funded can “slip by” potentially undetected. However, refer to item (e) in Order 17, Rule 3 – which refers to “any gift or disposition of property made since separation” – which should catch a sale of any assets to pay fees.
Question 51 – Total: This is then transferred to Section E in the financial summary on page1of Form 17.
Part F: Financial resources
The two major items to be included under ‘Financial Resources’ are interests in trusts and deceased estates.
Item 52 – interest in any trust or deceased estate: No instruction is given in the Form. Entitlements under a deceased estate should be relatively easy to describe or value. It is the issue of entitlements under a discretionary trust that raises problems. Broadly speaking, if either party or both of the parties are beneficiaries of a trust, and it is controlled by either or both of them, the assets of the trust are capable of being allocated to them. This entitlement must be disclosed. See the further discussion below of “other financial resources”, as well as the comments made when discussing Question 38. Most likely, a valuation will be included with explanations set out at the end of the Form 17, under “Additional Information”.
With deceased estates, do you insert details regarding mere expectancies? This information should only relate to interests in estates which have crystallised, but in which a distribution of the assets has not yet occurred. Possible entitlements under a will of a living parent, for example, should not be included.
Item 53 - Other financial resources:
What should be included here? Again, the Form provides no clues. The notes in the Court prepared kit gives this definition of financial resources:
Definition of financial resources:
S263 of the Property Law Amendment Act 1999 (QLD) states:
“263. A person’s ‘financial resources’ include the following –(a) a prospective claim or entitlement under a scheme, fund or arrangement under which superannuation, resignation, termination, retirement or similar benefits are provided to or in relation to, the person;
(b) property that, under a discretionary trust, may become vested in, or applied to the benefit of, the person;
(c) property the disposition of which is wholly or partly under the control of the person and that may be used or applied by or on behalf of the person for the person’s benefit;
(d) any other valuable benefit of the person.”
Interests in a trust are set out in item 51.Therefore, the most likely items to include here would be details of long service leave, annual leave, sick leave and any other retirement benefits. This information may have to be obtained from the employer.
Part G. Orders for maintenance or child support
This Part is only to be completed if orders about maintenance or child support are sought/opposed. This is dealt with in Chapter 7. Refer to Page 7-14 Part G. Note the commentary on the top of page 7-2. This points out that if property proceedings are commenced and interim or final spousal maintenance orders are sought, they can be included on Form 3. This is instead of using Form 12. With the changes to the forms, one Form 3 would be used, and Form 17 would be completed, including Part G.
If you have to complete this section, be very careful not to duplicate items. For example, in Part B, item 25 you insert school fees and levies as fixed expenses. Yet you are required to insert all educational expenses in this part. The recommendation is that you do not complete Part B items where there is a duplicate entry in Part G. In those cases, insert the words “see Part G” under the relevant item, and insert Nil as the value in the box. By doing this, the total of Part B and Part G will give the true picture of your client’s outgoings. Item 28 of Part B in this case should not be minimum payments, but only interest. Otherwise, there is a duplication of outgoings, as some items in Part G will have been paid by credit card.
The simplified version of Form 17 is an improvement over Form 12 in that it has 4 columns now, including a “total ” column for expenditure.
Additional information:
Order 17 Rule 3 is relevant here. Read it carefully.
The very last part of it requires the disclosure of any gift or other disposition of property made by the person since the separation of the parties. Nowhere in the form is there any instruction for this information to be set out. It is highly likely that many deponents and solicitors will overlook this particular provision. One suspects that such information will not be readily offered. The Form 17 Kit from the Family Court does not provide any additional clues either.
Items Missing from the old form
The following specific headings have been omitted from the earlier Form 17.
Long service leave – This should now be set out in Part F, item 53 - other financial resources.
Money owed to you – include under Part C item 40.
Anticipated tax refunds – include under Part C item 40
Loan accounts (company trust or partnership) – these could be debit or credit. They should be inserted in Part C item 40 if in credit, and Part F item 50. If however, they are taken into account in Part C item 38, do not include them again as either an asset or liability. This issue is beyond the scope of this Manual. Expert advice should be obtained.
Cash – should now be included in Part C item 34. Regrettably, the fact that a specific heading for cash is not in the form means that it is more likely to be “accidentally” omitted. The form should be altered to include this item again.
Legal and accounting fees – these now should be included in Part F item 50. There is some controversy over the disclosure of legal fees and how they are paid. The simple fact is that they are a liability and should be included.