It is not uncommon in a Family Law Property matter for a party to assert that they either don’t know what the other party has in terms of their bank accounts or assets or that they are hiding money or assets.
The first step in the Family Law property process is to identify the assets. Sometimes that can be very difficult if the assets are overseas or in cash.
However, an experienced Family Lawyer can often uncover hidden assets by a process, not unlike a private investigator with the tools available in the Court. Of course, it is also possible to engage private investigators in matters on certain matters.
In our experience spanning some three decades of complex family law matters, we have encountered real estate assets held overseas, complex trust arrangements, large cash holdings and other assets that parties have attempted to hide.
The Court has processes and tools such as subpoenas which are a court orders to produce documents, and even the power to permit a party to enter premises and seize property such as computers and financial records without prior warning to the other party. The court can issue what is commonly referred to as Anton Pillar type orders which permit the entry into premises and seizure of items. Such orders can be sought without putting the other party on notice if there is a risk that by putting the other party on notice that they would destroy or remove the evidence or items that is being sought to be obtained. That is a very powerful tool and is not unlike the powers which a Police Office has to enter, search and seize vital evidence.
The Court will not grant those orders lightly. An experienced lawyer will need to carefully consider the facts and the law of your case to determine whether there are prospects of success and the advantages and disadvantages of that approach. The general position of the Court is that there is no ambush of any party and parties need to seek to resolve disputes and provide full and frank disclosure prior to coming to court for assistance. So, to immediately run off to court to seek such orders can be costly both in terms of the cost of the legal fees and also in terms of how the Court considers your matter.
We are available for a no-cost initial conference if you want to discuss your family law property matter and we have decades of experience in complex matters such that we can provide you with very expedient and sound advice with a dedicated Family Law Team.
Who is the Best Family Lawyer
It is probably easier to pick the worst family lawyer than identify the best. As my initial supervising solicitor told me when I was in my initial years as a lawyer “The best lawyer is not necessarily the loud one at the bar table but could be that quiet one at the end of the bar table in a cardigan”.
Winning family law cases (or any case for that matter) is not about who is the loudest or who promises the most but who carefully and meticulously prepares your case with a very clear vision of the strategy to the end. Writing affidavits is easy, getting them right is often a very carefully considered process requiring experience, a clear vision of your case strategy, and an understanding of the law and rules of evidence and the Court.
The tell-tale signs of a good lawyer, which we consider ourselves to be are:
- The lawyer will over a period of time seek carefully your full instructions to properly understand your facts;
- The lawyer will issue subpoenas, demands for disclosure, production and discovery of the other party to property check the objective evidence that supports your case;
- The lawyer will provide you with a comprehensive letter of advice in writing. If a lawyer won’t commit their opinion in writing then run as the sign of a competent lawyer prepared to back their advice with the obligations of putting it in writing is very important in having the confidence that your lawyer has confidence in their own advice;
- The lawyer will make recommendations to you as to what the range of outcomes are in court and what is a reasonable range to consider in terms of settlement offers to make or accept;
- The lawyer will weigh up all of the matters for you including the costs, risks and delays in proceeding to Court or to a final hearing as opposed to engaging in negotiation, mediation, conciliation or arbitration; and
- The lawyer will provide you with clear and ongoing advice as to what they are doing and what their strategy is for final hearing in front of a judge.
If your lawyer is not constantly reviewing and updating advice and seeking to resolve your matter proactively then you’re probably at the wrong place. Legal fees spiral when there are active court proceedings and it’s often said that the only ones who win are the lawyers. That can be very true. So, listen carefully to the advice of your lawyer who should be constantly seeking to resolve your matter with the least amount of legal costs in settling the proceedings. Not all matters can, of course, be settled, but they don’t settle by themselves. They need lawyers with a clear understanding of the law, the risks and with a proactive strategy to settle.
We are proud that ninety five (95) percent of our matters settle without final hearings in a positive outcome for our clients. Of course, the other five (5) percent we fight very hard and often achieve excellent outcomes for but we proactively seek the best outcomes for clients and not ourselves.
If your lawyer is not discussing settling, ranges of outcomes, costs, risks and providing clear advices in writing then run.
Can I keep the Family Home?
It is most often the question that we receive “Can I keep the home?” The answer to that is often yes, however, we often need to carefully consider how a case will be conducted to achieve that outcome.
It is common for a party we represent not to have the borrowing capacity on their own to keep the home and pay out the other party. However, through careful consideration of the facts and the law and a clear strategy for achieving the desired outcome quite often borrowing capacity is not the only way to approach the outcome of retaining the family home.
For example, if there are children who have lived in the home and your desire is to have them remain living with you and reside in that home then that will assist in an argument before a judge that it would be fair and equitable to provide more superannuation to the other party (if you have superannuation) and less cash. In this way, less is required to be borrowed.
Additionally, there may be “add backs” which could be added back if the other party has used or disbursed assets without your consent which ultimately means that you get the benefit of recovering (on paper) a portion of the value of that added back asset.
Valuations also play a large part in what distribution you will need to make. Careful consideration of improvements and factors as to the valuation may also result in a lesser amount being paid to the other party.
There are different methods and models of refinancing. For example, depending upon your age even if you don’t have the capacity to make mortgage payments you can obtain certain mortgages which permit you to borrow and not pay the loan (plus interest) back until you sell or transfer the property or pass away. This may allow you to remain in the home practically where traditional mortgages are not available.
There are many ways a case can be considered such as to work towards your goal of retaining the family or matrimonial home but an experienced Family Lawyer needs to be consulted who has the experience and knowledge to do so.
We provide an initial no-costs conference and would be able to assist you in answering this and many other questions and in ultimately achieving your very best outcome.
