An enforcement proceeding in the family courts highlights the danger of attempting to avoid compliance with a property order by shuffling assets around to try to hide them.
[Husband’s sneaky super move fails..continued]
In the matter, given pseudonyms Adler & Adler, the courts had made consent orders between the husband and wife, which the courts regarded as a “just and equitable” division of their property. One of the orders was a super-splitting one, requiring that a base amount of $68,160 be allocated to the wife from the husband’s super fund.
Seven months later, however, the wife again appeared in the courts because she discovered that even though the husband had made the order by consent, very shortly after signing the orders (or possibly even prior to signing), the husband rolled his super out of one fund and into another, secret one.
The wife’s solicitors tried to resolve the matter directly with the husband but he did not engage. This meant the wife’s solicitors had to undertake quite a bit of forensic investigation to discover the name of the husband’s new super fund.
The judge found the husband’s actions clearly led to a miscarriage of justice, and it was therefore appropriate that the court set aside the original order and substitute another order reallocating the super split “out of the (husband)’s interest in his current superannuation fund”.
The judge was scathing of the husband’s conduct, for the entire history of the litigation, noting, “The husband has, throughout these proceedings, behaved as though the Family Law Act and the rules of the court have no application to him.” There had been “a complete disregard for the law, disregard for the wife, disregard for the court”.
Due to his conduct, the husband now also has to pay the wife’s costs of the enforcement application, fixed at $8,985. The legal fees were made more onerous thanks to the husband’s refusal to engage with the wife’s solicitors, necessitating their further extensive investigative work.
Can run, can’t hide
Should he again attempt to avoid his obligations regarding the super split order, the husband cannot simply refuse to execute instruments or documents that may be required by the new super fund to comply with the new order. That’s because the court used its power under section 106A of the Family Law Act to appoint a Judicial Registrar of the Courts to execute any such instruments or documents on the wife’s request, if needed.
If the husband doesn’t pay up on the costs order, the wife can make another enforcement application requiring the husband to attend court, and if he doesn’t, a warrant may even be issued for his arrest.
New super rules should reduce such court actions
Changes to superannuation rules for family law proceedings come into effect in April. These changes mean that superannuation assets will be easier to identify in family law proceedings, as the Australian Taxation Office will be able to share information on super assets with the courts.
Not only will the changes help prevent proceedings like this one from clogging up our court system, they will enable litigants to achieve fairer outcomes by stopping ex-partners from under-disclosing super assets. The changes are expected to benefit vulnerable women in particular.
You can read the above-mentioned judgment in full here.
Need help with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
