hiding money in a property settlement

Hiding assets in a
property settlement

There is never a good reason to hide assets in a family law property settlement.  Each party has a duty of disclosure but as identified in a previous article (Financial Disclosure in Property Settlement Cases) people regularly struggle to provide financial disclosure.

Some of the most interesting cases I have been involved in have involved cases where people have failed to be upfront about their assets and income.  These cases have resulted in a poorer outcome for the spouse who has been trying to hide assets.  Some of the more memorable cases include cases with a spouse who was:-

  1. trying to hide the number of calves born on a property over a number of years in a property settlement involving a cattle business;
  2. trying to hide funds in bank accounts in the names of their relatives including accounts in the names of their children and another account that was in the name of another family member;
  3. storing harvested grain in storage facilities instead of selling the grain and needing to disclose the income in a property settlement involving a grain business;
  4. not wanting to provide bank statements for particular periods of time. When pushed to provide statements for those periods of time discovering other bank accounts not previously disclosed and expenditure of money on things they did not want to share.

If you hide marital assets – you will be caught out!

In all of these situations the spouse was in the difficult position of being caught out hiding assets.  There were a variety of methods used to catch people out.  The strategies to catch someone out changes in each case depending on what is being hidden.  There are endless documents out there which can help show what is the true picture with a spouse’s assets and liabilities or alternatively their income and expenses.

Hiding assets will be detrimental to your case

In none of the situations where people were caught out was it helpful for their case.  I have watched spouses being cross examined at Trial by a barrister about deliberately not disclosing assets.  Regularly the truth will come out at Trial so the Judge will be able to figure out what the real picture is.  However in the process the spouses providing answers to these questions often look defensive, awkward and shifty.

If a Judge forms the view that other assets have been hidden and have not been fully disclosed by the time of Trial then the Judge can take that into account when making their decision.  In those cases the client who fails to disclose will generally then get a lower percentage of the assets than they would have if they had disclosed all their assets as they should have.

If you are in a situation where you suspect your ex spouse is not disclosing all their financial information you need to get advice from an experienced family lawyer.  They will give you the best chance of helping you discover the truth.

If you would like assistance or more information contact our office to make an appointment with one of our solicitors on 07 4963 2000 or through our online contact form below.

James Bailey, Partner Wallace & Wallace Lawyers

James Bailey
Partner
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
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Financial Disclosure in
property settlement cases

Financial disclosure is required in every property settlement case.  The Family Court Rules and the Federal Circuit Court Rules have very clear requirements about the need to provide financial disclosure.  Despite the clear obligation to provide financial disclosure, it can often become a problem in property settlement cases.

Why do I need to disclose my financial circumstances?

Trust between former spouses often disintegrates completely when people separate.  Financial disclosure enables people to see all financial information and look into things for themselves instead of simply being told what is the case.  The family law system at its core expects people to be able to make informed decisions having access to all relevant information prior to completing a property settlement.

Financial disclosure obligations do continue after the date you separate

Frustratingly for many people the duty of financial disclosure continues until your property settlement is finalised.  Many people have a view that they should only provide financial disclosure up until the date when they separated and not after that time.  Many people think they should not have to provide bank statements for accounts after separation.  As hard as it may be for a party to accept, their view about whether they should have to provide a document is totally irrelevant as it is a legal obligation.

What if I don’t disclose all of my financial information?

A failure to disclose information can have a number of possible consequences including:-

  1. A person filing court proceedings because they are not getting information that has been requested in accordance with the rules;
  2. If a person is in court already and they fail to provide disclosure they can leave themselves open to a costs order being made against them;
  3. If a person repeatedly fails to provide adequate financial disclosure and the matter proceeds to Trial the court can draw a conclusion that the person is deliberately withholding information and that can result in them getting a smaller percentage of their asset pool.

A failure to provide financial disclosure will often frustrate a person’s chance of matters resolving amicably.  If you are in court, this will lead to the Judge getting cranky and this can result in the Judge forming a negative view of that person’s case.

In addition there are other ways of getting information by subpoenaing banks or accountants etc.  There is no good reason why someone should not provide financial disclosure.

What should I do if I am required to provide financial disclosure?

Collating and providing financial disclosure can be a time intensive process and it is recommended that you be as organised and efficient with this as you can be.  The provision of financial disclosure also has the potential to become expensive if it is not done well with lawyers needing to constantly extract information from the other party.

If you are unclear about what financial disclosure you need to provide or you have an ex partner who is not providing financial disclosure you are encouraged to seek legal advice about the best option for your case to resolve this issue.  Contact our office to make an appointment with one of our solicitors to obtain advice on your situation on 07 4963 2000 or through our online contact form below.

James Bailey, Partner Wallace & Wallace Lawyers

James Bailey
Partner
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
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person completing a budget for an application for spousal maintenance

Spousal maintenance and managing
your finances post separation

A family separation will impact your financial well being.  While this time in your life may feel daunting, it is important to take the time to step back and review your finances to ensure that you understand your income and your expenses.

If you find that your expenses are significantly higher than your income, and you believe that your former spouse may have capacity to assist you in covering the gap, you may be eligible to seek spousal maintenance.

How do I assess my finances?

In order to assess your financial circumstances, you should first calculate your income.  You should include all forms of income that you receive, including any Centrelink benefits or child support.

You should then create a list of your outgoings, these outgoings should include any payments you are required to make such as mortgage/rent payments, council levies, school fees, grocery costs, electricity and gas fees, care maintenance and fuel costs, phone and internet bills and insurance costs.  You should also ensure you include an amount for incidentals such as doctors’ visits.

Preparing a document identifying your income and expenses is a bit like preparing a budget.  You need to be able to properly identify these things prior to the Court considering any Application for Spousal Maintenance.

What does the court consider when making an Application for Spousal Maintenance?

If you make an Application for Spousal Maintenance, the Court will consider what your and your former spouses’ ‘reasonable’ weekly expenses are.  The Court will then consider whether the other party has any capacity to provide you with financial support, while continuing to meet their ‘reasonable’ weekly expenses.  The Court can make an Order for spousal maintenance if it deems it appropriate.

Once you have taken the steps to determine your financial position and you are ready to take the next step in the separation process, you should make an appointment to obtain legal advice.  We encourage you to contact our office to make an appointment with one of our solicitors to obtain advice on your situation on 07 4963 2000 or through our online contact form below.

Brittany Colussi, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany Colussi
Solicitor
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
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Two fingers fighting over a dollar coin depicting a marriage separation and superannuation split

Will COVID-19 affect
my superannuation split?

When a couple have separated and wish to sever financial ties, it is not uncommon for property settlement orders to include a superannuation split.  This involves a portion of one party’s superannuation (“the member spouse”) being transferred directly into the other party’s nominated superannuation fund (“the non-member spouse”).

One of the economic consequences of COVID-19 is the falling share market which in turn has led to a reduction in superannuation balances.  In the context of family law and property settlement negotiations, this has meant that there are now circumstances where:-

  1. the member spouse has previously agreed to a superannuation splitting order providing for the non-member spouse to receive a base amount of their superannuation, eg $50,000.00.
  2. the member spouse now has less superannuation than they did at the time the agreement was reached.
  3. the superannuation split would therefore result in the member spouse receiving less of the property pool overall, or could even render the agreement unworkable in circumstances where there are now insufficient funds to effect the split.

What can I do if my superannuation has been affected by COVID-19?

The first thing you must do is obtain an updated superannuation statement to work out exactly how much superannuation you have.

You may wish to change the type of superannuation splitting order to a percentage order.  This would mean that the non-member spouse receives a percentage of your superannuation, rather than a fixed amount.  The benefit of a percentage order is that it will take into account any further drops in superannuation up until the date the order is implemented.  However, it will also include any contributions made by the member spouse to the fund after the agreement is reached.

Please contact our family law team if you would like further information or have concerns about your property settlement orders on 07 4963 2000 or through our online contact form below.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
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personal looking through filing cabinet of personal records in family law matter

Personal Records in
Parenting Proceedings

Can my ex obtain my personal records in parenting proceedings?

When a party to court proceedings wants to obtain information about another person, they may be able to issue a subpoena requiring that information to be provided to the court.

What kind of information can be subpoenaed?

Subpoenas can provide for information about any person relevant to the proceedings to be made available, such as:-

  • children;
  • the parents;
  • new partners; and
  • grandparents.

In the context of parenting proceedings, subpoenas are commonly issued to the following places:-

  1. the police – to obtain information about criminal histories and domestic violence;
  2. the Department of Child Safety, Youth and Women – to obtain information about notifications relating to a child the subject of the proceedings;
  3. hospitals and GPs – to obtain information about mental health treatment and injuries to the children;
  4. schools – to obtain information about a child’s academic performance and behaviour.

There are limits to the scope of information that can be requested, and it is important that the subpoena requests only information which would be relevant to the proceedings.

Can I inspect the subpoenaed documents?

Once the documents have been sent to the court, the party who requested them can file a Notice of Request to inspect the subpoenaed documents.  Once leave to inspect has been granted, the parties to the proceedings, or their solicitors, can attend the court house to inspect the subpoenaed documents.  If a Family Report Writer has been appointed, they will generally be permitted to inspect the documents as well.

Generally you will not be permitted to make copies of the documents or remove them from the court house.  In some cases the Court may grant leave for the parties’ solicitors to copy the documents, however the documents must not be provided to anyone else and can only be used in accordance with the Court’s directions.

Can I object to the subpoenaed documents being provided?

There may be circumstances where a party to the proceedings, or the third party receiving the subpoena, wishes to object to the information being provided.  Situations where it may be appropriate to object include:-

  1. the disclosure of the information will place a party to the proceedings or a child at risk of harm – this may be particularly relevant where there has been child abuse or domestic violence;
  2. the documents requested are not relevant to the proceedings – the information should be used to prove or disprove an issue in dispute;
  3. the scope of the information requested is too broad – by way of example, recent counselling records may be relevant while historical records from a person’s childhood are not.

If a party wishes to object to the subpoenaed documents being provided, they must do so in writing and the Court will then decide whether to allow access to the information.

If you would like more information, or assistance in filing or objecting to a subpoena, contact the Family Law team today on (07) 4963 2000 or via on our online contact form below.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
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Mum dropping off her daughter to visit her father co-parenting

COVID-19 (Coronavirus)
and Co-Parenting

The COVID-19 pandemic is currently creating a great deal of uncertainty and confusion amongst separated families in Australia.  With children out of school and out of routine, many separated parents are questioning how this pandemic will affect their parenting arrangements.

Disruption to Parenting Arrangements

It is inevitable that there will be some disruption in parenting arrangements for families during this time.  Parents should ensure that they are complying with any orders or parenting agreements currently in place to the best of their ability.  However, now more than ever, is a time for parents to be reasonable and exercise restraint in their communication with the other parent.  Parents should take steps to ensure that they are taking a child focused approach to their parenting arrangements with a focus on limiting the anxiety felt by their children at this time.

Parents should avoid unfairly and unnecessarily restricting their children’s tie with the other parent.  While this pandemic is having a significant impact on the everyday lives of Australians it should not wherever reasonably possible have a significant impact on the time children are spending with their parents.

We recommend that parents consider reaching an agreement in relation to the following:

Changeover

If changeover is currently in a place which is no longer viable due to the closures of schools, public parks and restaurants, parents should consider an alternate option, for example, a grocery store may be more appropriate at this time as they remain open.

Schooling

If parents are encouraged to keep their children home from school, parents should consider how this will be managed under the current care arrangements.

Travel

If children are due to travel these school holidays, parents should consider how this travel should occur.  This is particularly relevant to those children who generally fly between their respective parents homes.  In these circumstances, it may be more appropriate for the travel to occur via car.

Quarantine

If a parent or child becomes sick, then the guidelines imposed by the Australian Government must be followed.  Quarantine should occur where the child is and parents should ensure that they communicate all concerns and information as soon as possible.

Contraventions of court orders should be avoided.  In the event that a contravention occurs, the Court will consider your actions and whether there was a reasonable excuse for contravening a parenting order.

If you require assistance in determining the best approach to managing your parenting arrangement during the current pandemic, we encourage you to make an appointment to obtain legal advice.  Our office remains open and prepared to assist you.  Contact our office to arrange a phone or ZOOM video conference appointment with one of our solicitors should you require assistance or advice.

Brittany Colussi, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany Colussi
Solicitor
Family Law

Seek advice if you require
more information or assistance.

(07) 4963 2000
ONLINE ENQUIRY
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women looking at wardrobe deciding what to wear to court

I’m going to court
what should I wear?

Going to Court can be a very stressful and confusing time.  We often have clients who are unsure of what to wear, particularly if our client has not been to Court before.

It is important to present yourself appropriately, and to dress suitably for Court.  There are a few simple guidelines to follow to ensure that you are dressed appropriately.

Dress Conservatively

You should dress conservatively and make sure your clothes fit you, and that you are modestly covered.  If you are wearing a dress or skirt, you should ensure the length is appropriate for Court.  You should not wear shorts, dresses and skirts that are shorter than knee length.  If you do not have knee length attire, we recommend that you wear stockings underneath or choose to wear pants instead.

Present neatly

You should present as well groomed, with tidy hair and clean clothing.  Facial hair should be neat and any tattoos should be covered if possible.

Avoid certain items of clothing

You should avoid wearing jeans, shorts, t-shirts and thongs.  You should also avoid any item of clothing with logos or slogans that could be deemed offensive or inappropriate.

Avoid being too formal

It is not necessary for you to wear a suit and tie, dress suit or a tuxedo.  You should be aiming to be dressed in smart casual or office appropriate attire.

Avoid buying expensive new clothes

While it is important that you dress appropriately, you should not go to the unnecessary expense of purchasing expensive clothing for your Court appearance.  This would not be practical for many clients.

Many clients have appropriate clothing to wear to Court, without needing to purchase new clothes.  For example, you could wear the following:-

  • A simple ironed button down or polo shirt, dress pants and dress shoes; or
  • A dress or skirt and blouse, conservative in length (knee length or longer) and appropriate footwear.

For more information, or if you would like to speak with someone about your pending court matter, please contact our office.

(07) 4963 2000
ONLINE ENQUIRY
Brittany Colussi, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany Colussi
Solicitor
Criminal Law

Other Articles

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If you have been sentenced to a period of imprisonment for one year or less, you may be granted an intensive correction order.

Hiding assets in a
property settlement

Full and frank financial disclosure is required in every property settlement case, however some people believe they can deceive both their former spouse and the Court.

Mandatory Imprisonment
for Drink Driving Offences

Have you been charged with driving under the influence of alcohol or a drug? Is it your third offence? You may be subject to a period of mandatory imprisonment.

Read More
Hands holding domestic violence ribbon

Application for Protection Order
filed by the Police?

The police have filed an Application for Protection Order naming me as the Aggrieved – what can I do?

In Queensland, the Police can file an Application for Protection Order (commonly referred to as a DVO) against an individual (the ‘Respondent’), if they believe that the person has committed domestic violence against another person (the ‘Aggrieved’), and that an Order is necessary to protect the Aggrieved from domestic violence occurring in the future.

At times the Aggrieved does not want the Police to file or proceed with the Application.  An Aggrieved may not want the Order for a number of reasons including:-

  • they do not believe that the Respondent has committed domestic violence against them; or
  • they do not believe a Protection Order is necessary to prevent further domestic violence from occurring;
  • they want to remain in a relationship and are worried about the strain associated with the Application on the relationship;
  • they are being pressured by the Respondent or family not to proceed with the Application.

Below are the answers to some commonly asked questions an Aggrieved may have about a Police Application.

Will the Police withdraw the DVO Application if I tell them I don’t want it?

While the Aggrieved’s wishes will be taken into account, the Police can still proceed with an Application for Protection Order, even if the Aggrieved does not want the Order in place.

The Police may choose to proceed in circumstances where they consider it necessary to protect the Aggrieved from further domestic violence occurring in the future.

Can I tell the Magistrate I do not want the DVO in place?

Even though the Police are making the Application, the Aggrieved can still attend Court and appear before the Magistrate.  On the first Court date, the Magistrate will ask the Respondent what they want to do.  The Respondent can:-

  1. Consent to the Order being made;
  2. Consent without admission to the Order being made;
  3. Contest the Application and have the matter set down for Hearing; or
  4. Request an adjournment.

The Aggrieved will then have the opportunity to tell the Magistrate whether they are supportive of the Order being made.

While the Aggrieved’s wishes can be taken into consideration, the Police can still proceed with their Application.

What if I would like a DVO, but I do not want the conditions sought?

The mandatory conditions for a Protection Order are that:-

  1. The Respondent must be of good behaviour towards the Aggrieved; and
  2. The Respondent must not commit acts of domestic violence against the Aggrieved.

In some circumstances the Police may apply for additional conditions to be included on a Protection Order, for example that the Respondent is prohibited from contacting the Aggrieved or from going to the Aggrieved’s home or place of work.

If the Aggrieved wishes to continue to spend time with the Respondent, but is otherwise supportive of the Protection Order being made, the Police can agree to the inclusion of an exemption clause in the Order, for example that the Respondent is prohibited from contacting the Aggrieved except with the written consent of the Aggrieved.

If you would like more information about your rights and obligations, either as a Respondent or an Aggrieved to an Application for Protection Order, contact our office to make an appointment today on 07 4963 2000 or via our online contact form.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

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urine test to detect alcohol in family law matter

Alcohol Testing in
family law matters

Alcohol abuse is often a very important issue in a family law matter.  The abuse of alcohol can lead to issues of risk in some circumstances and decrease the capacity to parent effectively.  Where there is evidence of alcohol abuse and potential risk to children the Court may make orders that one or both parties undertake alcohol testing.

How is alcohol abuse tested?

There are three main tests that a person may undertake to determine whether there is any alcohol use or abuse.  While alcohol abuse is difficult to define, it is generally accepted that drinking in excess of 4 to 6 standard drinks per day will evidence chronic alcohol abuse.

  • Urine Test – Ethyl Glucuronide (EtG)

A urine test can be used to evidence whether alcohol has been ingested by a person in the previous 3 to 4 days.  Generally, EtG will not be present if a person has not ingested any alcohol, or if they have ingested minimal alcohol over the 3 to 4 day period.

  • Liver Function Test (LFT)

A liver function test can be used to evidence either alcohol abuse or abstinence.  The liver function test is a blood test.  This test will generally demonstrate excessive alcohol consumption where there are elevated levels of GGT, AST, ALP or ALT enzymes in a person’s blood.

  • Carbohydrate Deficient Transferrin Test (CDT)

A Carbohydrate Deficient Transferrin test can be used to evidence either alcohol abuse or abstinence.  This test is most commonly used in family law matters to evidence a decreasing usage of alcohol.  The CDT test is also a blood test.  The test delivers a result in percentage terms.

If you have been asked to complete alcohol testing in your family law matter, or you think that the other party should undergo alcohol testing, you should make an appointment to obtain legal advice.  We encourage you to contact our office to make an appointment with one of our solicitors to obtain advice on your situation on 07 4963 2000 or via our online contact form.

Brittany Colussi, Solicitor, Wallace & Wallace Lawyers Mackay

Brittany Colussi
Solicitor
Criminal Law

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Women signing an undertaking

What is an Undertaking
in Family Law?

When parties separate sometimes a person is requested to give an undertaking that they will or will not do something.  Sometimes undertakings are requested before court proceedings are commenced and sometimes they are requested or provided to the Federal Circuit Court or Family Court once court proceedings have commenced.  Undertakings are often requested or provided to deal with issues of risk in parenting or property settlement proceedings.

What is an undertaking?

Entering into an undertaking is like making a promise to the court and will be treated as if it were an order of the court.

How can an undertaking be made?

An undertaking is generally made in writing but on occasion when a matter is in the Federal Circuit Court or Family Court, can be given orally.

Examples of an undertaking a person may enter into include:

  • property settlement proceedings – an undertaking in property settlement proceedings can be made so that a person will not dispose of a particular asset or will not do something to cause the person’s assets to decrease in value or their liabilities to increase; or
  • parenting matters – an undertaking in parenting matters can be made for various reasons including:
    • that they will return a child at a particular time or in accordance with a particular arrangement;
    • that they will not expose children to a particular person or behaviour;
    • that they will supervise the time between a child and a person if there is an allegation that someone is at risk.

What if I fail to comply with an undertaking?

Failure to comply with an undertaking (which is known as a breach of an undertaking) can have serious consequences, and will be treated as if it were a breach of a court order.  The penalty for breach of an undertaking can range from a costs order to a period of imprisonment.  It is therefore important to obtain legal advice prior to entering into an undertaking.

To receive more information, contact one of our local family law experts on 07 4963 2000 or via our online contact form.

Lara Tom, Solicitor, Wallace & Wallace Lawyers Mackay

Lara Tom
Solicitor
Family Law

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