QLD Application of Consent Order - Super Splitting Questions

Discussion in 'Family Law Forum' started by Jenifa, 4 September 2019.

  1. Jenifa

    Jenifa Active Member

    Joined:
    4 September 2019
    Messages:
    6
    Likes Received:
    0
    Hi there,

    I’m very grateful for such an informative forum that provides insight and understanding of stressful family law situations.

    I have read a number of feeds yet I haven’t come across one that’s quite as complex in a similar nature to ours so I’m seeking advice (none legal of course) or similar experience in such matters.

    I’m here on behalf of my partner and seeking understanding of his rights to his superannuation and how the Application of Consent Order converts to Consent Order. I will provide detailed background as is may be relevant when it comes to my questions.

    My partner and his dreadful wife separated in Aug 2017, after 13 years marridge, they have two children aged 15 and 11 years old.

    Wife left husband for her current partner and they now have a 9 month old child and new property purchased.

    They had a parenting plan in place that was 60/40 split (40% with the farther and he paid $1000 child support monthly to the mother) until recently when the mother wanted to change the PP agreement and dictate a none negotiable new arrangement (which was unrealistic due to the fathers work commitments). During the mediation he offered many alternate options that were in the best interest of the children and all were declined, we later found out her demand for her required arrangement was so she could selfishly move to another state with her partner and see their children at her leisure and on her schedule. When no agreement was made she simply dumped her children at a K-mart, texted my partner and said she no longer wanted them and has moved. Needless to say, the children are in a bad way and we now have them in therapy and we are moving an hour away from our city jobs to find a larger house close to their schools. I know what you’re thinking…. Mother of the year right?

    Ok, moving on to the finances and consent orders.

    Mother earns $65k

    Farther earns $95k

    Land jointly owned sold for $22,855 (after lawyer negotiations and her demanding 100% of profit we finally managed to negotiate a split divided $14,000 to her, $8,855 to him).

    The application for consent was prepared by her lawyer and upon receiving this it was factually inaccurate, misleading and completely false, so my partner refused to sign stating the super she was declaring was short $20,000 (we had proof she had moved the money into a separate super account to try and hide it and advised her lawyer of this), she has failed to disclose a number of bank statements (and still hasn’t), after we have requested them many times, had not disclosed the savings of $14000 she took, the debt left with my partner and she had not disclosed her new purchased property worth over $1million (not that he’s going after it, however, we assume this would factor into her future state of living) which would be relevant to a fair split.

    The original consent application (provided by wife’s lawyer suggested each party were equal in assets and liabilities, when in actual fact as mentioned earlier he bares all the debt from the marriage and she took $14000 of their saving and was awarded majority of the cash sale of land.


    Original Application for Consent order stated:

    · Her net worth $19,000

    · His net worth $18,000

    · Her super $23,500

    · His super $103,000

    The consent order requested a super splitting order of $39,750 to be deposited into the wife’s super. Which he disputed due to non-disclosure of her actual finances and he provided proof she had hidden $20,000 of her super.

    My partner requested amendments to be made to the Application of Consent Order to reflect actual legitimate finances which are:

    · Her net worth $33000 based on evidence he has provided (without her disclosure of finances)

    · His net worth is minus -$17000 with full disclosure of finances.

    Her lawyer has now responded with her actual super of $44,100k (proving she had tried to hide money) and yet still has not provided the other financial documents. Based on the evidence my partner could prove the lawyer has responded with a new super splitting order amended to $29,450 and the lawyers correspondence is below.


    Our client is not willing to amend the Consent Orders in circumstances where she has now incurred considerable legal costs in formalising the agreement which you have ultimately reneged on, namely, superannuation splitting orders so as to equalise your respective entitlements.



    In this respect, we are instructed that upon making further enquiries with all superannuation funds, our client has a total of $44,100 in combined superannuation entitlements. Please find attached a copy of the relevant statements.



    Accordingly, and noting you have superannuation entitlements of $103,000, in order to equalise your respective entitlements, the base amount of $29,450 would be rolled over from your account into our client’s nominated fund.



    In the event that you are no longer will to effect a superannuation split, our client shall have no option but to consider making an application to the court seeking property settlement orders.



    We put you on notice that should such course of action become necessary, our client’s application shall seek costs against you on an indemnity basis and we hereby reserve our client’s rights to rely on this and previous correspondence on the question of costs.



    Now, the lawyer states “the client has incurred considerable legal cost in formalising the agreement which you have ultimately reneged on” and that they will seek costs against him on an indemnity basis. My first question is: Can they do this given the reason she has incurred extra-legal costs is due to her continued non-disclosure of financials and fraudulent activity hiding her super which is now proven.


    Second question: When it comes to dividing property equally, is super included into the pool of assets, finances and liabilities? Or is it completely separate? If it’s the former shouldn’t the fact that his net worth is minus $17k and her net worth is + $33k (without her further financial disclosure) be taken into account? E.g. adding the net worth’s and superannuation’s together and dividing fairly?


    Third question: Would the fact that the wife has dumped her children and the farther now has full custody come in to consideration given he is nowhere near as financially secure as her?


    Forth question: The wife refuses to sign divorce papers so my partner has filed alone and has had her served, the court date is next month which will be granted. What happens after the 12month period to divide property lapses post divorce?


    I know it’s a lot of information, please ask questions you need to know in order to answer any other the questions, any and all experience in such matters is greatly appreciated.
     
  2. Atticus

    Atticus Well-Known Member

    Joined:
    6 February 2019
    Messages:
    316
    Likes Received:
    59
    How can you reneg on an agreement that has hasn't yet been agreed to, ie, signed!!...LOL... Of course they will threaten costs.... given that this is a consent order process one would expect a bit of bargaining & to & fro until each party is satisfied with terms.. Given the circumstances of non disclosure as well they would have Buckley's of a successful costs application IMO
    Property & super can both be dealt with in a consent order, BUT, they are treated differently... Depending on the type of fund, the phase it is in, how long it has been held etc, valuing super can be complex.... The link below may help answer some questions
    Superannuation - Federal Circuit Court of Australia
    If taken to court, absolutely... If not taken to court, you should get legal opinion on the size of the adjustment to take this into account in your consent order application

    There is a legislated time limit of 12 months after the granting of a divorce in which to apply for property settlement... After that you need to seek leave of court to apply... Best to have it all formalized & stamped prior to that or at least have an application filed with the court
     
  3. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    3,497
    Likes Received:
    504
    My advice... Do almost nothing.
    Almost? yep, get divorced. Then she has 12 months to make a claim through court.
    My bet is she won't bother. WHY? Well the cost involved in running the court case is gonna run into 10's of thousands of $$$... Probably not worth her while given she will have to provide full financial disclosure.
    As far as a costs order - common bluff territory to get you worried enough the hire your own solicitor.

    So get divorced and do nothing until you get advised that she has applied to court, which I suspect she won't do...
     
  4. Jenifa

    Jenifa Active Member

    Joined:
    4 September 2019
    Messages:
    6
    Likes Received:
    0
    Hi Atticus, thank you so much for your response! this information is very helpful.

    Hi Sammy, we had originally thought the same approach, however, did not know the repercussions after the 12months. Do you know what happens after the 12 months lapses regarding super? I read somewhere that if an order is not agreed upon then a spouse can come seeking super entitlements years later? We also know she absolutely won't make a claim to court.

    Thanks to you both!!
     
  5. sammy01

    sammy01 Well-Known Member

    Joined:
    27 September 2015
    Messages:
    3,497
    Likes Received:
    504
    So 12 months after divorce and no court application means you need to seek special permission from the court for them to consider the case. Special permission might be granted if, for example one of the parties had been serving in the military overseas for example.... So It isn't enough to just say - been to busy.

    So once that 12 months has expired she really has no capacity to come after any of his assets or super.
     
  6. Jenifa

    Jenifa Active Member

    Joined:
    4 September 2019
    Messages:
    6
    Likes Received:
    0
    Can't thank you enough Sammy, this information is really valuable.
     
  7. Atticus

    Atticus Well-Known Member

    Joined:
    6 February 2019
    Messages:
    316
    Likes Received:
    59
    Not quite that definite unfortunately...
    The predominate considerations when an applicant is seeking leave to apply out of time is contained in Section 44 of the family law act, main one being..... 'that hardship would be caused to a party to the relevant marriage or a child if leave were not granted...... The most extreme case I can recall in which leave was granted was 18 years after the end of the time limit.... So it's hard to say 100% that she will not be successful if she seeks leave at some point & the court considers she & or a child may suffer hardship if leave is NOT granted...

    The only major asset yet to be sorted is super if I've read correctly, so it really comes down to whether you want to have absolute 100% certainty in moving on by formalizing everything now including a super splitting agreement, essentially drawing a line, or are okay with the possibility that she may one day hit hard times, seek leave to apply & a judge considers it would be unjust in the circumstances not to grant it....
     
  8. Tremaine

    Tremaine Well-Known Member

    Joined:
    5 February 2019
    Messages:
    128
    Likes Received:
    13
    I hope your partner isn’t still paying his ex any child support. $95k a year vs $65k a year, 60/40 split, even the $1000 a month he was paying in those circumstances is far higher than what a child support assessment would determine is fair. If the kids are now living with you, she should be paying him child support.
     
  9. Jenifa

    Jenifa Active Member

    Joined:
    4 September 2019
    Messages:
    6
    Likes Received:
    0
    Hi Tremaine, yes he called CSA the day she abandoned her kids and hasn't paid since, the reasons his child support was so high was because she had a child with her new (Doctor) partner and is on maternity so my partner had to make up for her lack of earnings during her maternity, even though she's in a million+ home with a doctor earning god knows how much. How twisted is this system.... how is that fair that he this is actually the law? it astonishes me.
     
  10. Jenifa

    Jenifa Active Member

    Joined:
    4 September 2019
    Messages:
    6
    Likes Received:
    0
    Hi Atticus, appreciate the extra knowledge on that subject. She's now in a de facto relationship (2 years) with a child and with a doctor (whos super would be worth a lot more than 29k should she fall on hardship), my guess is, she'll learn from this divorce and go after his when that time comes.
     
Loading...

Share This Page

Loading...
gt;