Difficulty in Setting Aside a Property Settlement – A Case Study
When final property settlement orders are made there is limited scope for one of the spouses to have it set aside. A recent case has considered at an interim hearing whether the failure by one of the spouses to disclose relevant information is reason enough to set aside an order. Here are some facts:
- The couple entered into a final consent order in 2009. The pool of property was valued at $300,000 and consisted of real estate and superannuation.
- After the order was made the wife came back to the court seeking that the property order be set aside on the basis that the husband had not disclosed a foreign bank account (solely in his name) with a balance of approximately $380,000. The wife became aware of the alleged bank account through a work colleague; however the work colleague could not provide documents verifying this, nor did she sign an affidavit of her knowledge of the account. The wife’s evidence as to the existence of the bank account was complete hearsay.
- The husband denied any interest in the bank account and sought that the wife’s application be dismissed.
- The wife sought to issue a subpoena to the bank to produce records for the bank account, however due to the bank being in another country, the bank did not comply with the subpoena. The bank would only produce statements to the wife upon receiving a signed customer authority from the husband.
At the interim hearing the court decided that despite the fact that the affidavit from the wife would have been inadmissible if it had been relied upon at a final hearing, for the lower evidence test at an interim hearing it could be considered. The judge found that the fact that the wife persisted with the application despite the risk of a costs order against her if her application was found to be wholly unsuccessful, suggested that there may be “something in it”.
As there was little prejudice to the husband in providing a customer authority to the bank authorising the wife to make enquiries, the court ordered that the husband sign the customer authority and the wife pay the costs of any enquiries with the bank.
Property settlement outcomes can be unpredictable and it is important to seek professional legal advice in advance. We offer initial consultations at a fixed-price! Please call (07) 3221 4300 and make an appointment with one of our Family Law experts. It is important that you achieve the best possible outcome for your situation.
