What if I’m unable to pay my general living costs because my assets are restrained?

Managing Principal
Proceeds of Crime & Confiscation Law
1 June 2023

If all or most of your assets have been restrained by authorities under proceeds of crime legislation, it is reasonable to have concerns about meeting your day-to-day financial obligations (such as rent, food and other necessities). Fortunately, both the Proceeds of Crime and Confiscation Acts include provisions to ensure that offenders are able to access reasonable living expenses for themselves and any dependents.

Living and business expenses

Section 14(4) of the Confiscation Act provides that:

  • A restraining order may, at the time it is made or at a later time, provide for meeting 
    • (a) the reasonable living expenses (including the reasonable living expenses of any dependants); and
    • (b) reasonable business expenses.

of any person to whose property the order applies if the court that makes or made the order is satisfied that these expenses cannot be met from unrestrained property or income of the person.

This means that, provided that the appropriate application is made in a timely manner to the court, a restraining order can be amended to allow you to access reasonable personal and business expenses for yourself and, if applicable, your spouse and children.

Whilst laws differ between jurisdictions in Australia, it is important to note that in Victoria, a restrained asset can never be used to pay for legal fees, whether in relation to the restraining order in question or otherwise.

When to seek advice 

Being unable to access your restrained assets can be a significant challenge when it comes to covering your everyday expenses. It is crucial to know your rights, and to seek specialist advice to ensure that you are taking advantage of the allowances permitted under law.

Prioritising your expenses, considering alternative sources of income, and seeking additional support are also important steps to help you cope with your general living costs. It is important to remember that you are not alone, and that there are support services available to provide further assistance. Our expert team will guide you through the process to ensure that your basic needs are always met.

Madison Branson Lawyers’ Managing Principal Simon Tsapepas is a member of the Supreme Court of Victoria Proceeds of Crime & Confiscation List User Group. For a confidential discussion, contact the Madison Branson Proceeds of Crime & Confiscation Law team today. 

The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.

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