7. Can I take my child and move to the USA? Do I need the mother's consent?
8. My wife has obtained an AVO against me. Does that mean I cannot see the children?
1. My husband and I ran a company together. Since our separation, my husband has told the company Accountant not to give me copies of documents. Can I get access to the documents?
- It is fundamental underpinning of the Family Law Act that each party is entitled to a full disclosure of the financial position of the other.
- As a Director you are entitled to access the accounts of the company and no one Director can prevent another Director from access.
- There are a number of formal and informal options to obtain documents. A letter setting out the requirements may be sufficient to cause the documents to be produced. An Application to the Family Court for access to the documents may be required. Alternatively, leave may also be granted in certain circumstances for a Subpoena to be issued for the production of the documents.
2. My wife and her Accountant say our business has no market value. How can I get the business valued?
- Before the Family Court will hear and determine any matter relating to the division of the parties property, the Court will need to be satisfied that there is an agreement as to the value of the property, or if no agreement, proper valuation evidence is available to the Court.
- The Family Court has recently introduced rules to provide for the appointment of a "Single Expert" to value assets, such as companies, where there is a dispute between the parties as to its value.
- All businesses can be valued. Valuation methods vary depending upon the nature of the business. We have access to professionals who are recognised by the Court as appropriate to value assets and companies.
3. I know my husband has superannuation entitlements with AMP. He won't tell me how much superannuation he has accumulated. How can I find out?
- You are entitled to a full disclosure of any property of your husband.
- Recent legislative changes have changed the nature of superannuation and it is now treated as property.
- The legislative changes provided a mechanism to obtain a statement of the benefits accruing directly from the other parties' superannuation fund. This does not require your husband's consent.
- The information provided by Superannuation Funds may be sufficient to value the interest. However, if the interest is a defined benefit scheme or is other than an accumulation fund, the information provided will enable a valuation to be obtained from specialist accountants.
- We have access to a number of specialist accountants who can value superannuation.
4. My wife and her brother own an investment property together. My wife tells me her brother won't agree to the property being sold. How can I get my share?
- When dividing the assets of a marriage, the Court must deal with all assets of the parties.
- That includes assets that are owned jointly with third parties.
- The question is to determine the value of the wife's interest in that property and to determine its significance in terms of the assets as a whole. A division of assets may be possible without the need to change the title from your wife and her brother.
- Should it be necessary, the Court has power to join third parties to proceedings and to make Orders affecting third parties to ensure that the appropriate division of assets between a husband and wife can be put into effect.
5. I met my husband in Paris and we were married in Las Vegas. We both live here. Where do I get divorced?
- If the marriage is valid in the place where it occurred and you meet the residence requirements and the other requirements for obtaining a divorce in Australia, eg. a separation for 12 months, you are then able to divorce in Australia.
6. My husband sold his investment property to his brother for $100,000. Can anything be done about it?
- The first question is whether the sale was for the proper value. If it was "a bona fide sale at arms length" then there has been no loss of assets just a rearrangement of them. What was once property is now cash.
- The Court has power to set aside any transaction, the intention of which is to defeat a claim of a party, before the Family Court of Australia.
- Should a Court consider that the sale of the property from the husband to his brother was a sham transaction, an Application could be made to the Family Court of Australia to set the transaction aside. In these circumstances, the husband's brother would become a party to the proceedings.
7. Can I take my child and move to the USA? Do I need the mother's consent?
- If it is agreed by you both that the children will leave Australia and live in another Country then there is no impediment to them going.
- The other parent ought to consent and that consent ought to be obtained formally.
- If the mother does not consent to the children moving to the United States, an Application for Relocation can be made to the Family Court.
8. My wife has obtained an AVO against me. Does that mean I cannot see the children?
- An Apprehended Violence Order is obtained in a Local Court and would contain specific provisions such as "the husband must not stalk the wife".
- These provisions must be stated clearly to enable you to know if you are in breach of the Order.
- Quite often Apprehended Violence Orders refer to the children as being covered by the Apprehended Violence Order.
- It is necessary to look at the terms of the Order to determine its effect on the time you would spend with the children.
- The existence of an Apprehended Violence Order itself does not prevent the Family Court from making an Order that you spend time with the children.
- There may be significance as to whether the Apprehended Violence Order was obtained at the conclusion of a Contested Hearing or not.
9. Our son has moved overseas for his employment and now our daughter-in-law won't let us see our grandchildren. Can the Family Court help?
- If you cannot reach an agreement with your daughter-in-law to see your grandchildren, there are formal steps you can take before the Family Court to seek Orders that the grandchildren spend time with you. That time would be independent of any time the Court orders that the children spend with your son.
10. My husband is self-employed and I know from his tax returns that they show little income. I also know the tax returns don't show the true position. Can I get proper child support?
- Any person with the care of children who is separated can apply for child support.
- The child support assessment is initially made on the documents available to the Child Support Agency i.e. the tax returns.
- It is possible to file a Review within the Child Support Agency and one of the grounds of the Review would be that the income shown on the tax returns is not a true reflection of the husband's financial position.
- In certain circumstances, the Review Officer's decision may be appealed to either an Administrative Tribunal or to a Court depending upon the nature of the appeal.
- If agreement is reached as to the provision of child support it is possible to embody that proposal into a Child Support Agreement. The Child Support Agreement can set out specifically what payments are to be made in respect to the children and can deal with payments that would otherwise fall outside a Child Support Assessment.
11. I'm paying the top child support. I'm also paying the expenses of the home and the private school fees. My wife says that now we are separated she also wants me to pay spouse maintenance. Can she get it?
- Spouse maintenance is normally ordered by a Court to cover the period from separation up to a Final Hearing when that issue is resolved with all other issues.
- Spouse maintenance is payable "if, and only if", your wife is unable to maintain herself out of her own income and resources.
- That raises the issue of her capacity to earn income and the shortfall if any between expenses and income.
- If the Court is satisfied that your wife does have a need for spouse maintenance, the Court will only make an Order for payment if you have the financial capacity to meet the Order.
