VIC Family Law - Future Needs and Lying on Affidavit

[KC1966]

I am in the middle of a legal battle with my ex partner relating solely to property (our children are both over 18). He has a medical condition with ambiguous medical evidence as a back up of his capacity to work. His Financial Statement was based on a tax return some 18 months old and was, quite obviously, inaccurate (he indicated that each week he earned $250, received a Newstart payment of $143 and paid $250 in tax). His bank statements indicated he had around $40K in savings with income of around $12K having been paid to him in the previous 3 months. When I questioned these, I was told I would need to hire a forensic accountant to review the data if I wanted to dispute it.

There was no opportunity for any type of discussion at the CC, the Registrar simply read the letter from the doctor, took the financials as a given (after advising he SHOULD have had his tax for the last financial year completed already) then indicated that he would be entitled to a Future Needs adjustment of up to 5% and a further 5% for Income Disparity (based on the dodgy figures and the fact that he states he is only able to work 3 days per week). Firstly, is this excessive? I do not earn big money, enough to get by and keep a roof over my family's heads.

At the CC he refused my offer (around 58/42 in his favour), pushing for an additional $1K and, on the advice of both my solicitor and the Registrar, we ceased negotiations. On the Procedural & Other Orders document issued even the Registrar noted that she was not satisfied that the proposed settlement was "just and equitable".

With the next step being a visit to Court, he has now provided an affidavit. This document is filled with inaccuracies and blatant mistruths, most of which I can prove.

My question is should I cut my losses now (already around $23K in legal fees for me alone), pay out at a 59/41 split in his favour (which was his last offer) and reduce the risk of having a judge award him a higher percentage or should I continue to challenge based on the fact I know he is providing inaccurate data and I can easily discredit his affidavit?

Thanks

 

[Atticus]

As stated at CC... unfortunately to argue the figures you will need some actual solid evidence, ie, a forensic accountant report or the like... They are VERY costly... Depending on what 5% actually means in real dollar terms, you may be worse off taking it to trial without that evidence to refute the figures..

 

[KC1966]

Thanks Atticus - 5% equates to around $40K. My biggest worry is that they will look at his medical needs way before they'll care about whether or not he's being dishonest. Any thoughts on the medical piece?

 

[GlassHalfFull]

Without getting into whether it's fair or not, it does sound like since you're arguing about 58/42 (rejected by him) and 59/41 (offered by him), and you've suggested that 5% is 40k so 1% is 8k. That essentially means that 1% (the difference between his offer and your offer) is $8k. You could well spend more than that (especially since I assume both your legal costs eat into the available combined assets?). It might not be fair and reasonable, but it does sound sensible and pragmatic to accept his offer and avoid incurring further costs...

Having said that, I've thought about whether I'd fight for what's right even if it cost me (and my ex) more in the long run, and I'm not sure what the answer would be! It's a hard question to answer. I hate injustice. At least you don't have the children to consider. That adds another layer of complexity.

 

[Atticus]

If you are FAIRLY CERTAIN that he is making false or misleading statements in order to justify a future needs adjustment, I would be requiring a second independent assessment of his condition if that's possible as an extra 5% adjustment = $40K ... Only a court direction to do so would compel him though... ... If he is basing his future needs claim solely on this medical condition that may work

 

[KC1966]

Thank you GlassHalfFull - yes, an injustice indeed. I was hoping for a 50/50 split which would have given me back around $80K. You are correct in saying that I need to be pragmatic, but I suppose that I am wondering if there is an avenue for calling out the gaps in his story and what the ramifications are for both of us if I do challenge. I don't want to end up spending another $20K only to be told he's entitled to a 60% share. It's a very confusing situation - we both know what's true but what price to prove and, maybe, for no better outcome.

 

[GlassHalfFull]

Unfortunately I don't have enough legal knowledge to know the answer to what avenues you can pursue. All I have is my own experience being screwed out of more than just a few %.

When we separated, my ex took out an intervention order on me based on false and twisted information, which effectively evicted me from our house. She took complete control over our rented house, children and finances and left me with little more than my clothes in suitcases and bags. All our joint possessions and any of my personal possessions large enough that I couldn't take with me are still at 'her' house more than a year later and I'm unable to recover them (partially because of the intervention order and partially because apparently possession is nine tenths of the law and the appropriate avenue is family law, not a local magistrates court), and she is refusing to give any of my stuff back to me unless I transfer 'our car' into her name and relinquish any claim to it. A car that is in my name and was given to us effectively as a loan by my father (which is still owing to him jointly by both of us, but how do I prove that to be the case when it was a gentleman's agreement between my father and I) only a year prior to our separation. And it's likely not worth fighting for in court because our combined assets are probably worth no more than $30,000 (no house, just chattels). So, because it's not worth the cost of pursuing in the family court, she effectively gets to keep it all unless I take a stand and spend about as much in legal costs as I could ever hope to gain in a fair and equitable share of our assets.

I don't mean to sidetrack this thread away from your situation - just pointing out that although the monetary value of your assets are larger and therefore perhaps worth fighting over, injustices of a much greater scale happen regularly.

 

[KC1966]

No issues GlassHalfFull - it would appear to me that there are many many people out there in exactly the same situation and suffering what is "gut-wrenching" injustice, no matter what size the prize :-(. I didn't include all the details - he took a lot of our joint possessions which have now mysteriously "disappeared" including around $40K worth of power tools and a jetski! When I raised all that during my "day in court" I was told to simply let it go - if I couldn't prove they existed and I didn't have certified values they were essentially worth nothing, so I had to concede to that as well. To add insult to injury, I have to give him half my super including the $80K it's accrued since we separated. I am level headed and pragmatic and very very fair - to my detriment obviously. I hope your situation improves - doesn't need to be like this. Thanks for listening.

 

[GlassHalfFull]

Indeed many of us are going through things such as this. I was told a similar thing by my lawyer with regard to the joint assets - to let it go. It's such a shame when people we previously loved turn nasty during separation. I totally understand trying to fight for a fair and positive outcome and I would expect everyone to try to do the same, but I would never try to screw someone over the way I've been screwed, and I find it hard to understand why someone would do that, even if breakup was messy.

It seems that the biggest reason this sort of thing goes ahead is the law itself and the lawyers who advise to do 'what is best for their client' - even if it's nasty and combative. It actively encourages people to 'strike first' because there are more advantages than disadvantages to doing so. In your case, it's your ex 'disappearing assets' and making false claims that are difficult to counter. In my case, it's an intervention order that evicted me from my house and possessions without any due process whatsoever. This kind of thing sets the tone for what might otherwise be a more amicable split of assets, and forces both sides to dig their trench and fight even if they may not have actually wanted to. It's a shame and I wish family law would come down harder on lies and those who are nasty or don't do what is in the children's best interests (something relevant to my case), in order to discourage it from happening in the first place. There don't seem to be enough disincentives for bad behaviour.

Anyway, I'll leave it at that, I don't want to distract too much from your legal question! Good luck.

 

[KC1966]

Indeed many of us are going through things such as this. I was told a similar thing by my lawyer with regard to the joint assets - to let it go. It's such a shame when people we previously loved turn nasty during separation. I totally understand trying to fight for a fair and positive outcome and I would expect everyone to try to do the same, but I would never try to screw someone over the way I've been screwed, and I find it hard to understand why someone would do that, even if breakup was messy.

It seems that the biggest reason this sort of thing goes ahead is the law itself and the lawyers who advise to do 'what is best for their client' - even if it's nasty and combative. It actively encourages people to 'strike first' because there are more advantages than disadvantages to doing so. In your case, it's your ex 'disappearing assets' and making false claims that are difficult to counter. In my case, it's an intervention order that evicted me from my house and possessions without any due process whatsoever. This kind of thing sets the tone for what might otherwise be a more amicable split of assets, and forces both sides to dig their trench and fight even if they may not have actually wanted to. It's a shame and I wish family law would come down harder on lies and those who are nasty or don't do what is in the children's best interests (something relevant to my case), in order to discourage it from happening in the first place. There don't seem to be enough disincentives for bad behaviour.

Anyway, I'll leave it at that, I don't want to distract too much from your legal question! Good luck.

YOU TOO!