Family Law Financial Disclosure

Are you contemplating a separation? Do you need a property settlement and don’t know where to begin? Or have you been asked to provide a long list of financial documents or information or to complete a Financial Statement?

If you are intending to separate or have recently separated and need a financial settlement or you face these challenges then you should read on.

Anyone experiencing these issues can take practical steps to keep control of the process and avoid hefty legal bills.

If you are contemplating a separation or have not long ago separated then there is information that you can collect and documents that you can gather that will assist you to resolve your matter more quickly and minimise the costs and angst that can sometimes arise in a family law dispute.

When a marriage or a de facto relationship breaks down each party has an obligation to provide to the other party a full and frank disclosure of their financial circumstances. The types of documents and information that are usually required are likely to include the following:

  1. Copy statements in respect of all bank accounts held by you, or jointly with any person or in respect of which you have an interest held either in Australia or overseas from the date of separation to date.
  2. Copy statements in respect of all credit and charge card facilities held by you or operated by you, solely or jointly with any person, firm or corporation in Australia or elsewhere from the date of separation to date.
  3. Particulars of shareholdings you have in any private or unlisted company or have held in any private or unlisted company in Australia or overseas as at and since the date of separation including:
    3.1. Name of the company;
    3.2. ACN or other identifying number;
    3.3. Number and class of shares held by you or entities associated with you;
    3.4. Copies of financial statements and tax returns for the past 3 financial years;
    3.5. Business Activity Statements for the period 12 months prior to separation and/or 12 months prior to the first court date for each entity; and
    3.6. Copies of the Constitution for each entity.
  4. Particulars of shareholdings in each public company that you have or have held since the period 12 months prior to separation until the present, either in Australia or overseas including:
    4.1. Name of the company;
    4.2. Country in which the company was incorporated;
    4.3. Details of the Stock Exchange where the company is listed including the address;
    4.4. Number of shares held by you or entities associated with you or others on your behalf;
    4.5. Current market value of the shares;
    4.6. Date of disposal and particulars of disposal of all shares disposed of since 12 months prior to separation to date; and
    4.7. Amounts received by you from each such disposal.
  5. In relation to any self-managed superannuation fund, copies of the last three (3) financial statements and income tax returns and all particulars and documents relevant to the interest since the last financial statements or income tax returns were provided.
  6. With regard to any further superannuation rights and entitlements either within Australia or overseas:
    6.1. Most recent member benefit statement;
    6.2. A valuation of each such interest including particulars of how each such interest was calculated and all supporting documents; and
    6.3. A completed Superannuation Information form in relation to each superannuation fund.
  7. In respect of each life insurance policy held by you from the date of separation either within Australia or overseas, the following particulars:
    7.1. Name and address of the insurance company;
    7.2. Policy number;
    7.3. Beneficiaries nominated on the policy;
    7.4. Name on the policy;
    7.5. Commencement date of the policy;
    7.6. Current surrender value of the policy;
    7.7. Date of maturation of the policy; and
    7.8. Benefits payable upon maturation
  8. In respect of each trust of which you have been as and from the date of separation, the settlor, appointor, trustee (or member of a corporate trustee), beneficiary or potential beneficiary either in Australia or overseas:
    8.1. A copy of the trust deed and documents amending the trust deed;
    8.2. Any financial documents and tax returns of the trust for the past three (3) years;
    8.3. Minute books of the trust from inception of the trust to date; and
    8.4. Name and location of the corporate trustee (if applicable).
  9. Your personal Income Tax Returns and Notices of Assessment for the past three (3) financial years.
  10. All documents and records evidencing the ownership by you of any other assets such as shares, investments, insurances, motor vehicles and the like.
  11. Market appraisals for any item of property in which a party has an interest, including real property, motor vehicles, jewellery, antiques, artworks and the like.
  12. All documents and records evidencing any loan, debts or liabilities in your name.

Once all of the necessary financial information has been exchanged it is then possible to begin to unravel a couple’s joint financial arrangements and secure a family law financial settlement. With a complete picture of the financial landscape of the relationship it is much easier to begin this task.

Often the exchange of financial information and documents is only part of the picture. Each party is also expected and obliged to answer reasonable requests for additional information. This may include providing evidence of the ownership of assets at the start of the relationship or providing details of the manner in which income was applied during the relationship or in relation to a particular assets or joint venture project.

Having a complete picture of the current financial landscape is not always easy to achieve and can be fraught with challenges. A Balance Sheet can take parties time to complete. With the help of Accredited Specialist Family lawyers this process can be expedited and streamlined but it can also become expensive.

Five top tips to get the best Balance Sheet for the least cost that you should keep front of mind in your separation are:

  1. Gather the necessary documents, if at all possible, before you see your divorce and family lawyer.
  2. Engage a Specialist family lawyer so time is not wasted on irrelevant information and the collection of unhelpful and/or unimportant documents.
  3. Answer all reasonable requests for additional information promptly.
  4. Don’t be afraid to engage a third party expert valuer to help you determine the value of an asset if it is not agreed or known.
  5. Set yourself a realistic framework to complete the exercise. Collecting documents and answering questions can take time and you should set aside time each week to work on these requests.

If you would like specialist family law advice in relation to your family law financial settlement or have been approached to provide full and frank financial disclosure in relation to your family law matter then contact us at Doolan Wagner Family Lawyers on 9437 0010 or email us on enquiries@familylawyersdw.com.au. We have a highly experienced family law team and Accredited Family Law Specialists who can help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Doolan Wagner: 2015 in Review

As a director of Doolan Wagner Family Lawyers I am writing this blog post about some 2015 developments and issues in family law including issues relating to parenting and immunisation of children, family law valuations, mediation trends and the new “cashless” family court registries.

Are you grappling with immunisation issues?

Children are immunised at birth and at the 6 month, 12 month, 18 months and 4 year mark.  Children are also immunised against HPV at the 12-14 year mark.  Australian research shows that in 2015 it is becoming increasingly common for some parents to be concerned about vaccine safety and its effectiveness.  In fact, it is becoming more common for separated parents to disagree on whether to immunise their children, or whether to continue to immunise their children even though they may have commenced a schedule of immunisation before they separated.  Another situation of conflict that can arise over immunisation is when parents are organising overseas travel with their children, to a country that strongly recommends immunising against certain diseases.

So what happens in 2015 if you and your partner disagree on this important decision and at what point does the Court step in?

The Court can become involved in disputes over immunisation where parents assume differing positions in respect of whether or not to immunise their child.  This is different to situations where parents jointly decide that their child needs a ‘special medical procedure.’ If you or your partner file an application to seek orders that a child be immunised, or seek an injunction to prevent the other parent from immunising your child, you will find yourself before the Court.

If you and your partner find yourselves in dispute over immunisation and approach the Family Court for assistance, the court will always ask the question “what is in the best interest of the child?  In the cases of Duke-Randall & Randall [2014] FamCA 126, Kingsford & Kingsford [2012] FamCA 889 and Redden & Mains [2010] FMCAfam 1338, the Court has determined that given there were no contraindicators it was in the best interest of the child to be immunised.

Valuations in Family Law Matters

In 2015 we have seen a growing need to obtain expert valuations of corporate and business structures, personal and commercial goodwill, residential, commercial and industrial real estate and employee stock options to name but a few as part of resolving the financial affairs of separating couples. Long gone are the days of straightforward family law matters with many clients now needing to rely upon forensic accountants and expert valuers to assist in a resolution of their financial affairs.

All family law valuations need to be approached with the particular facts and circumstances of each matter clearly prioritised. The appropriate methodology to be applied will depend very much on the individual aspects of each case.

In circumstances where for example your former spouse holds a share or a minority interest in a business, as part of that valuation process it is necessary to consider what discount (if any) should apply to the value of that commercial interest. If you and your partner are in a dispute about the value to attribute to your ownership of a minority interest the Court will ask the parties “what is the value of the shares to the shareholding party?”…it is questions of “the value to owner” and “the highest and best use” that the Family Court looks to when establishing the appropriate value of such an interest not broad valuation concepts such as the “hypothetical purchaser/vendor” principle.

There are many methodologies and considerations at play when undertaking a valuation exercise for family law purposes and determining what is a just and equitable division of property. Capital gains tax implications and tax consequences generally are crucial to bring to the table when seeking to secure a “clean break” of property and financial matters after a separation. Engaging an appropriately qualified expert at this time can be a critical move. Knowing who to engage, how to instruct the expert and what questions to ask can make a significant difference to the outcome in your case.

Mediation Trends in 2015

The use of mediation in family law has continued to grow in 2015, including the use of solicitor assisted family law mediation.

Mediation is a method of alternative dispute resolution (ADR) whereby parties attempt to resolve their matter using the services of an independent third party (mediator) to negotiate a settlement.

Doolan Wagner Family Lawyers offers mediation services and has a Registered Family Dispute Resolution Practitioner to assist clients in relation to their family law matters.

So what have we noticed in 2015?

Generally we have noticed that there has been an increasing interest to  avoid the court process altogether by negotiating, as well as using mediation and other alternative dispute resolution mechanisms to resolve their outstanding family law matters.  This has likely occurred due to lengthy delays in and the often prohibitive costs of engaging in the family law  court system.

However we have also found that some parties have been hesitant to engage in ‘private’ mediation when they have sought independent legal advice. In those cases we have seen that many parties have preferred to engage in solicitor assisted mediation to negotiate and/or settle their matter.

Solicitor assisted mediation can be helpful to parties because experienced family law solicitors bring additional skills to the negotiation table and can also help their clients see more clearly beyond the emotional aspects of their family law matter. This may empower a party and put them in a better position to negotiate with their former spouse to resolve outstanding issues or their matter as a whole.

Family Court Registries Going “Cashless” from 1 July 2015

For some time there have been murmurings amongst family lawyers and court staff that the Family Law Registries would only accept payment by credit card (or EFTPOS if paying in person).

From 1 July 2015 the Family Law Registries will no longer accept payments by cash or cheque. All Family Law Registries will now require all filing parties to provide an original completed and signed Credit Card Payment Authority Form with all documents attracting filing fees at the time those documents are being filed in the Court.  No longer will cash or other means of payment be acceptable.

What does that mean for you?

Really, it’s not a big deal…In early 2015 Doolan Wagner Family Lawyers took the pre-emptive step of implementing the “cashless” payment method to pay court filing fees. This means our clients have been using this “new” system for some time. Wherever possible we have also been using the Commonwealth Courts Portal to e-file documents for our clients, saving them more time and money.

If you are separated or thinking of separating and need help with:

– parenting issues including immunisation issues

– securing the best outcome in your family law matter where complex financial and/or business interests are involved

– considering mediation for you and your former spouse to resolve outstanding matters, or

– filing family court documents, paying federal circuit court fees and payment methods generally…

or any other family law matter…then contact Doolan Wagner Family Lawyers on enquiries@familylawyersdw.com.au or (02) 9437 0010 for further information on how we can help you. We are conveniently located in St Leonards on Sydney’s Lower North Shore and are easily accessible by public transport and car.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

New Family Court Judge Appointed

On 28 May 2015 the Federal Government announced the appointment of former Commonwealth Attorney-General Mr Robert McClelland as a Judge of the Family Court of Australia.  Mr McClelland will commence his appointment on 16 June 2015 and will be based in the Sydney Registry of the Family Court.  Following swearing in, he will be referred to as ‘His Honour McClelland, J.’

Prior to this appointment, Mr McClelland had developed an impressive profile in the community.  In 1996 he was elected as the Federal Member for Barton and following this position, undertook service as Australia’s Attorney-General.  Prior to his political career Mr McClelland practiced as a solicitor and was called to the Bar in 2011.  He is currently a partner at Carroll & O’Dea Lawyers.

At Doolan Wagner Family Lawyers we welcome Mr McClelland’s appointment to the Family Court Bench in the Sydney registry.  During his term as Commonwealth Attorney-General during the period 2007 to 2011, Mr McClelland was committed to improving the family law system and was responsible for the introduction of several important changes to the Family Law Act 1975, which aimed at improving support to separating families and advancing the family law system in its response to issues surrounding family violence and child abuse.  In 2011 Attorney-General McClelland introduced legislation that redefined domestic violence, in turn placing greater weight on child safety.

Today, the definition of ‘family violence’ at s4AB of the Family Law Act 1975 is as follows:

For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

During 2011, the amendments to the Family Law Act 1975 included a paring back of the evidentiary burden of proving a child’s risk of violence.  At that time, Mr McClelland noted that the Family Law Legislation Amendment Bill 2011 would create a safer and fairer family law system and put the safety of children first.  “It will help people within the system to understand and recognise family violence and child abuse, and encourage them to act”, he said.  Mr McClelland supported and promoted the child’s right to a meaningful relationship with both parents, but highlighted that the child’s best interest was paramount.  In this regard, he was of the view that shared care from both parents was supported, but only where it was safe for the child.

During his tenure as Attorney-General, Mr McClelland also highlighted the need for further alternative dispute resolution mechanisms in the family law context and was resilient in his commitment to increasing options available for resolving disputes out of the courts, especially for parenting and property matters.  Mr McClelland spoke of the need to attend family dispute resolution, not just in parenting matters, but also in property and spousal maintenance matters.  In this way, Mr McClelland continued to focus on how best to use court resources in applying suitable resolutions to family law matters.

If you or someone you know is experiencing family violence, or you are in dispute with your partner over property or parenting issues, then Doolan Wagner Family Lawyers can help you.  Call 02 9437 0010 or email enquiries@familylawyersdw.com.au to arrange a confidential discussion.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.