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accredited specialist

Choosing a Family Lawyer – What is an Accredited Specialist?

By Family Law

OMB Family Law Partner, Abbi Golightly, is an Accredited Specialist in Family Law and has been since 2009.

So, what does that really mean for you, our clients?

The Queensland Law Society developed a process of assessment and accreditation in the main areas of practice in Queensland, including Family Law.  The QLS operate the Specialist Accreditation Scheme as a method by which to identify those members of the Queensland Law Society who have demonstrated a high level of expertise in a particular area of law.

In order to achieve Accredited Specialist status, there are a number of requirements that have to be satisfied to the highest level.  First and foremost, the lawyer has to have been practising almost exclusively within the relevant area of law for at least five years.  Thereafter they must pass the stringent assessment program offered by the QLS.

This assessment process involves interviews, exams and submitting examples of work and in order to pass, each discipline must be passed.

Once achieved, Accredited Specialist status is maintained by undertaking a higher level of professional development every year in order to maintain a level of knowledge that is expected of a specialist.

You can identify an Accredited Specialist by the QLS logo that can only be used with the approval of the QLS.

Here at OMB Solicitors

Here at OMB Solicitors, you can see that logo on our website and in our email signatures.

Why does having an Accredit Specialist matter in family law?  Family Law is one of the most complex areas of law.  It involves traversing many legal disciplines but also involves a skill set of empathy, understanding, compassion, negotiation skills , family law mediation and arbitration.

When you see the Accredited Specialist symbol, you can be confident that your lawyer has a skill set that will be applied to help you achieve the best outcome possible in the circumstances.  It also means that that skill set is passed on to other members of our family law team, who will be trained by the best in the business also.

The Countdown is on – the merger of the Family Law Courts is nearly upon us

The Countdown is on – the merger of the Family Law Courts is nearly upon us

By Family Law

On 1 September 2021, the family law courts Federal Circuit and Family Court of Australia will commence operations.

The new court is being touted as an opportunity to change the conversation about family law disputes in Australia.  That conversation is focused with great emphasis on dispute resolution (where it is safe to do so) before commencing proceedings and if proceedings are required, ensuring parties are aware of the ramifications for them and their families.

For those families that require judicial intervention, the process is intended to be transparent and more efficient with resolution without undue delay.  It is also designed to have a focus on the safe resolution of disputes for vulnerable families, with the increasing rate of family violence in our community prompting that focus.

There will be, for the first time in over 20 years, one single entry point, a single set of rules and forms and case management processes designed to provide a streamlined approach to family law litigation.  Whether or not that eventuates, is yet to be seen.

Chief Justice of the Family Court of Australia and the Federal Circuit Court of Australia, the Hon Will Alstergren said that for decades, people in the legal profession, and the wider community, have been calling for change and commenting that the “system” wasn’t working. “The Courts have responded to these calls for change. The Federal Circuit and Family Court of Australia will provide a completely new family law system which focuses on risk, responsiveness, and resolution. There will also be a significant focus on compliance with court orders, demonstrated by the establishment of a new National Compliance List which will also commence on 1 September 2021.”

In response to the increasingly unacceptable delays, the Chief Justice has said that we need to do things differently and the system will identify risk and safety at the very beginning of every case as a priority, where parties will be given ongoing opportunities for dispute resolution where it is safe to so, and if cases cannot be resolved, it will be listed for a trial before a judge much earlier than previously experienced.

The use of Court Registrars and Court-appointed Family Consultants will be integral to the new system to undertake the triage and case management of all matters filed. As far as possible, duty lists will be conducted by Registrars and interim hearings will be conducted by Senior Registrars which is designed to alleviate the front end case management burden on Judges and ensure that they are able to hear and determine trials and deliver judgments in the matters that require judicial attention as quickly and efficiently as possible.

The newly proposed system will see the following time frame for Court events:

  • First Court event within 6 – 8 weeks of filing
  • Mediation or dispute resolution within 5 – 6 months of filing
  • A trial within 12 months of filing

To facilitate these changes the Commonwealth Government has provided more than $100 million in new funding. The Courts have now been able to undertake an intensive recruitment drive to secure the services of highly skilled and energised family law practitioners to assist the Courts’ existing hardworking and diligent Registrars and staff. The number of Judges has also been increased to the highest-ever number of Division 2 (or Federal Circuit Court) judges and the highest number of Division 1 (or Family Court) judges since 2007.

Here at OMB Family Law, we are across all of the proposed changes to processes and procedures and will be ready, come 1 September 2021 to embrace the new way of Family Law litigation.

Call us Gold Coast Lawyers Today

If you have any concerns or queries about how your matter will be managed post 1 September 2021 or discuss any family law matter, contact our Gold Coast Family lawyers on 55550000.

Dakota Hallett

What Happens to the Pets in a Family Law Dispute

By Family Law, Videos

In this video, our Dakota Hallett discusses what happens to the pets in a Family Law Dispute.

 

Hello, my name is Dakota Hallett and I’m a family law solicitor here at OMB Solicitors

Today I’m just going to chat with you about what happens to the pets in a family law dispute. So more often than not, pets are considered an integral part of the family that bring a lot of joy and happiness, to everyone around. So it’s not unsurprising that pets are often considered something that both parties want to retain when you separate. 

The Family Law Act doesn’t specifically deal with pets or their living arrangements like they do with children, so pets are instead considered as property similar to that of a motor vehicle or other item of property, which is often something that’s difficult for people to grapple with.

The court can, however, determine the ownership of a pet and change the ownership of a pet on a final basis, which is often really helpful if there is a dispute regarding who gets to retain the pet.

For the interim period, if there is a dispute regarding the pet, normally what happens is whoever’s name the pet is registered in is the one who gets to retain the pet. So the things that the court will consider in deciding that issue on who gets to retain the pet on a final basis are things such as who paid for the pet originally, who was the pet’s primary caregiver, including who took the pet walks and bathed it and fed it, and other things that the court will consider as well are who is able or has the capacity to be able to maintain that pet’s needs moving forward, including who has a house that’s able to have a pet living there.

So if you’ve got any questions at all in relation to parenting, property or pets, please don’t hesitate to contact me at OMB Solicitors.

For more information regarding family law mediation and how our family lawyers Gold Coast team can help you, contact OMB Solicitors today.

Family Law Court Australia

Family Law Court’s Merger – Important Things to Know

By Articles, Family Law

Whilst the majority of the legal profession was and remains staunchly opposed to the merger of the Family Court and Federal Circuit Court, the reality is that it will be upon us soon and we must adjust to the new systems in place. It is important also that our clients know the changes that are soon to occur in the system that they may be litigating in, or considering entering.

With thanks to Jacky Campbell at Forte Family Lawyers (published via www.cch.com.au) here are the ten most important things to know about the merger:

  1. The Court will now be known as The Federal Circuit Court and Family Court of Australia.
  2. The new Court will commence operation on 1 September 2021.
  3. There will only be one Court, but there will be two divisions of that Court. What is currently known as the Family Court of Australia, will become the Federal Circuit Court and Family Court of Australia (Division 1).  The Federal Circuit Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 2).
  4. All proceedings will be commenced in Division 2. All appeals will be filed in Division 1.
  5. Division 2 will also hear general federal law matters as well as Family law.
  6. Whilst all Appeals will be heard in Division 1, the Chief Justice can also direct that a matter be transferred from Division 2 to Division 1 in particular circumstances.
  7. There is no appeal from the decision of the Chief Justice to transfer or refuse to transfer a matter from Division 2 to Division 1.
  8. There will be new Rules of Court to abide by.
  9. The Federal Government has indicated that there will be 35 specialist Judges in Division 1 and 43 in Division 2 (nationwide).
  10. There is a diversity of view on whether or not this new system will be better than our current one. Most of us agree that the new court won’t be better unless the Government provides it with more resources.

To a greater or lesser extent, we are very much in wait and see mode.  Watch this space.

sharing pets

Every Dog has its Day – Dogs, Definitions and Decisions on Shared Care

By Articles, Family Law

In 2021 Australia, pets are without doubt an integral part of the majority of families. With the decision to defer having children until later in life or not at all, couples after separation are often faced with the decision about who gets “custody” of the dog (or cat or both!).

If parties can reach a private arrangement about what happens with the family pet, then that is one thing, but what happens when you can’t?

In a recently published decision of the Federal Circuit Court of Australia in Brisbane, Her Honour Judge Turner has looked carefully at the capacity of the family law courts to determine disputes, on an interim basis about the “custody” of pet dogs.

On 10 February 2021, the Court published Davenport & Davenport (No.2) [2020] FCCA 2766 (8 October 2020) (austlii.edu.au) in which the Court was tasked with deciding a self-represented Husband’s application for an interim “shared custody” arrangement for a dog.

For reasons that we will explore, Her Honour decided there was no jurisdiction to make any such Order.

After a short relationship, during which no children were born, the Wife made an Application for property adjustment Orders under s79 of the Family Law Act.  These types of applications fall within the definition of “matrimonial cause” under s4 of the Family Law Act which defines a ‘matrimonial cause” as

Proceedings between the parties to a marriage with respect to the property of the parties to the  marriage or either of them, being proceedings (i) arising out of the marital relationship.

The wife, on a final basis, sought to retain possession of the dog, conveniently referred to “D”.  There was a dispute between the parties regarding who paid for him etc but that was a matter for a final decision.

Dogs have long been treated by the family law courts as “personal property” which is defined in the Butterworths Legal Dictionary as “all forms of property other than real property; that is all forms of property other than land and interests in land (excluding leaseholds).  Personal property is traditionally divided into two classes: chattels real and chattels personal. A “chattel” is a movable possession and can be considered something capable of being the subject of action possession (a “chose” in possession”) or something that cannot be physically possessed but recoverable by a course of action (“a chose in action).

Importantly, as the Wife sought Orders on a final basis regarding possession of the dog, the Court confirmed that it had jurisdiction to hear that final application, but the Husband’s application was an interim one, which brought with it different considerations.  The Court considered that the interim application was not one for the adjustment of property interests and did not therefore fall within Part VIIII of the Family Law Act.  The Court further relied upon the decision (one of many!) in Strahan and Strahan (interim property orders) within which the Court determined that there must be jurisdiction to make interim property orders before they could be considered.

The Husband did not assist the Court in providing any authority or legislation which addressed whether the Court had jurisdiction to deal with “shared custody” of “D” the dog. The Family Law Act previously referred to “custody” however it pertained to children, the definition of which, obviously does not include dogs.  The Application therefore did not fall within the category of interim parenting decisions, which the Court could have entertained.

The Court relied upon the authority of Gaynor & Tseh [2018] FamCA 164 when confirming that the Court had no jurisdiction to make the Orders sought by the Husband.  In that authority the Court stated:

Th Family Law Act makes no reference to pets.  It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alteration of a property interest on an interim basis.

Whilst sympathizing with the Husband and dismissing his application for want of jurisdiction, Her Honour concluded by saying:

The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creates that we share the planet with that would empower the court to make orders for shared custody of a pet.

The case highlights further why reaching an agreement (which can include matters which otherwise the Court may not permit) is the best outcome for all concerned, including your dog! Contact Gold Coast family lawyer for your free preliminary discussion about your family law issues (pet-related or otherwise).

Australia's non-fault family law system

From Fault to Fault-Free – Australia’s Non-fault Family Law System

By Articles, Family Law

The focus of articles such as those in the Courier Mail regarding the separation of Wally and Jackie Lewis draw attention to factors which have long been replaced in the Family Law system – see Wally Lewis: Secret betrayal that tore Lewis family apart | The Courier Mail.

References to alleged affairs of long or short term duration are a constant factor in any reporting of celebrity divorces. And the reality is, is that from a legal perspective, these factors are irrelevant, but for selling your gossip magazines it’s a different story.

Prior to 1975 in Australia, should you wish to get divorced, you would have had to establish one of 14 grounds included into the Matrimonial Causes Act, these included:

  • Desertion
  • Adultery
  • Habitual drunkenness
  • Cruelty
  • Insanity
  • Imprisonment

Gaining evidence of any of the divorce grounds was a cloak and dagger exercise, involving private investigators and other covert methods.  This fault base or moralistic approach was deeply rooted in the religious principles underpinning marriage in that era.

However, come the 1960’s those moralistic and religious viewpoints had become out of sync with modern Australia.

A huge groundswell movement emerged in the 1960’s which shifted the viewpoint on marriage and during this time the increasing numbers of defacto couples increased also.

Fast forward to 1972 the then Whitlam Government introduced a series of reforms including those proposed to the laws pertaining to divorce and “custody” as it was then known as.

In 1975 the Family Law Act was passed into law, with a firm majority of votes (80-41).  The Family Law Act introduced “no fault” divorce and boy did Australian’s take to the changes. A massive surge in divorce applications occurred after the passage of the Family Law Act and the court has effectively been swamped since that day.

In order to obtain a divorce pursuant to the Family Law Act, all that is required to be established is that the marriage has “irretrievably” broken down for a period of 12 months prior to the application being made.  The Court does have to consider whether or not appropriate arrangements are in place for children under the age of 18 as part of the consideration of the divorce Application.

Conduct issues in family law are mostly irrelevant. There are but a few exceptions to this standard position. Whilst it is entirely understandable that the reasons for the end of your relationship have a massive emotional impact, as your advisor, it is our job to ensure that your matter is conducted in a way that complies with the case authorities and relevant legislation.

So in 2021, your divorce application will look dramatically different to how it would have pre-1975, remembering that an Application for Divorce is an entirely different legal process to the division of assets and reaching an agreement, however again fault or conduct issues become relevant in limited circumstances.

Strategic and resolution focused advice is what OMB Family Law is all about. If there are relevant conduct issues which will impact the division of your assets or the living arrangements for your children, then we will provide you with clear advice on how those issues are relevant and the impact they will have.

Contact Gold Coast Divorce Lawyer on 5555 0000 or via our website www.omb.com.au for a free initial discussion with OMB Gold Coast lawyers.

Abbi Golightly

What is a Binding Child Support Agreement?

By Family Law, Videos

In this video, OMB Solicitors‘ Partner & Accredited Family Law Specialist, Abbi Golightly discusses what the Binding Child Support Agreement is.

 

Hi, I’m Abbi Golightly from OMB Solicitors.

Making appropriate arrangements for the financial support of your children after separation is an important consideration when resolving your family law matter. The child support agency run by the federal government is an option available to parents to manage the financial support for children. 

The child support agency undertakes a formula calculation of child support payable, taking into account the income of both parents and appropriate care percentages. The child support agency’s approach to the calculation of child support can cause difficulties, particularly with self-employed spouses and changing care arrangements for the children.

Often, when parties are seeking certainty in relation to their obligations to pay child support or what they may receive by way of child support, we advise them in relation to binding child support agreements. Much like binding financial agreements for the division of your assets, a binding child support agreement sets out clearly the obligations for the payment or receipt of child support.

A binding child support agreement can obligate a parent to pay a contribution towards school fees, medical expenses, extracurricular activities, or pay expenses, such as private health insurance expenses in relation to children’s pets and other expenses that ordinarily the child support agency would not take into account. 

In order to be binding, a binding child support agreement must be documented appropriately in accordance with the child support legislation and again, like a binding financial agreement, all parties must receive independent legal advice in relation to the effect of the agreement on their rights and entitlements before signing it. 

After the agreement is signed and all parties have received legal advice, the binding child support agreement is sent to the child support agency.

Instead of receiving regular assessments of your child support obligations calculated by the child support agency, they will issue assessments in accordance with your binding child support agreement. 

Much like a binding financial agreement, there are pros and cons in relation to entering into a binding child support agreement, and it’s important that you consider the advice of your family lawyers Gold Coast team before doing so.

Abbi Golightly

The Requirement to Participate in Mediation

By Family Law, Videos

In this video, OMB Solicitors‘ Partner and Family Law Accredited Specialist, Abbi Golightly discusses what is required in order to participate in Mediation also known as Family Dispute Resolution.

 

Hi, I’m Abbi Golightly from OMB Solicitors

Prior to bringing an application to the court for parenting orders, there is a requirement under the Family Law Act to participate in family law mediation, also known as family dispute resolution. There are, of course, exceptions to the requirement to participate in family dispute resolution, including circumstances of urgency, risk of harm, circumstances involving family violence, and abuse of either parent or the child. 

However, barring any of the exceptions to the requirements applying to your circumstances, it will be necessary for you to participate in family dispute resolution. 

Family dispute resolution providers are approved by the federal government to be appropriately qualified to undertake mediations between parents, and if an agreement is unable to be reached, they will issue you with a Section 60I Certificate, which is a reference to the Family Law Act requiring you to participate in mediation.

That certificate will say that you have attempted mediation and were unable to reach an agreement, or that you have been unable to participate in mediation because of the other parent refusing to participate, or that your circumstances are such that mediation is not appropriate. 

It is only after you’ve received a certificate or an exemption from the court that you can bring an application for parenting orders. The requirement to mediate is the federal government’s push to have parents reach an agreement privately in relation to the living arrangements for their children, rather than approaching the court without first doing everything they can to reach an agreement which statistically has the best chances of success for the parents and most importantly, for the children. 

At OMB Solicitors, we can assist you in relation to attending a family dispute resolution and advising you about the best options available to you in relation to private mediation, publicly funded mediation and what is the appropriate position to take when negotiating the living arrangements for your children.

If you want to learn more about family law mediation and how our family lawyers Gold Coast team can assist you, contact us today.

Christmas Hints

Helpful Holiday Hints for Separated Families

By Articles, Family Law

“It’s the most wonderful time of the year….” Or so the Christmas song goes.

But statistically, this is not always the case for families under stress. The period immediately preceding Christmas and post-Christmas often causes such stress that pre-existing problems are brought to the surface and relationships often end.

The desire for a fresh start in the New Year or just getting through “one more Christmas” often prompts parties to consult with Gold Coast Family Lawyers regarding separating before or after the holiday period.

If you have separated, it is very important that as parents, we shield our children from as much of the adult issues as we can. Children observe and take in much more than we give them credit for. They pick up on stress and conflict through observations of actions, moods, and direct conflict.

When it comes to children’s arrangements, the Court’s will always make an Order which it considers to be in the child’s best interests.

Whether this is sharing Christmas Day or alternating it between parents is entirely subject to the individual aspects of each case.

OMB Family Law’s gift to you is our “helpful holiday hints” – namely some things to consider in the lead up to the festive season and when you are discussing and hopefully agreeing on the arrangements for your child or children and other family law matters this holiday period:

  1. Christmas is for and about children, let them enjoy it, free from the worry of their parent’s conflict.
  2. Christmas can cause conflict and anxiety in even the happiest of households, so if there are conflicts in your relationship with the other parent then it is your responsibility to do all that you can to ensure that the children are not exposed to conflict or adult disputes;
  3. The arrangements for Christmas Day must be child focused, not parent focused. Your “need” as a parent to see your child or children on Christmas Day is secondary to the best interests of your children and in all reality, of little concern or interest to the Court.  Christmas is only one day of the year and whilst it may be nice to be spending it as a family, life does not always work that way. Be the adult and be child focused.
  4. Try to communicate with each other about present(s) for the children to ensure that there is a consistent approach on type of present and there is no double up.
  5. If you can, make sure arrangements for the special days are resolved well before the holiday period, as your advisors and the Courts will close in the days leading up to Christmas. This enables the stress levels for all concerned to be managed as well as enabling plans with immediate and extended family to be made.
  6. The capacity to bring a matter before the Court prior to Christmas is quite difficult as there is, notoriously, a lot of families which need court intervention prior to the Christmas period. Bear that in mind when trying to resolve matters.
  7. If you cannot achieve a Court order prior to Christmas, then a Parenting Plan is the best option available to you. A parenting plan, whilst not a Court Order which carries differing levels of enforceability and consequences for breach, is still a written agreement which the Court will consider if needs be. As the old adage says, “anything is better than nothing”.
  8. Do not sweat the small stuff, pick your battles, rise above it – all of those colloquialisms apply best at Christmas. It is not the time to worry about someone being five minutes late to changeover or if the kids go on (and on and on) about a present from their other parent.
  9. Be generous and kind if you can. If you are in a better financial position then your spouse, do not put the squeeze on them financially (ever but definitely not at Christmas).  They are the person you chose to have a family with and being difficult financially will only affect your children, in the long run.
  10. Plan for things going wrong. A dream Christmas would be perfect, but we don’t live in a perfect world and there are no perfect parents (sorry to say!).  Small issues should be noted down and raised with your advisor in the new year. Big issues – significant breaches, family violence or risk factors from alcohol consumption – need to be addressed more urgently and if needs be, contact the Police to ensure your and the children’s safety is protected.
  11. Get advice early. Your family lawyer is a human too – they likely have family of their own and need time to rest and relax so that they are refreshed and available to you in the New Year. If a matter is urgent then, like us at OMB Family Law, they ought to be available to you via email, but otherwise decide to have your meetings well prior to their Christmas closure. Again, if personal safety is at risk, then call 000 without delay.
  12. Finally, remember what Christmas is truly about – love, family, friendship, and gratitude for being in the best country around. 2020 has posed many challenges for our day to day Aussie life.  Take time this year (and every year) to truly remember the meaning of the holidays.  It is not a time to focus on winning against your ex, who is getting the kids the best presents or having the best holiday.  Kids just want their parents and deep down the competition is likely to just make them sad.

From the OMB Solicitors to yours, may your holiday season bring you happiness (or at least as little conflict as possible), rest, and relaxation?

Our office is open until 23 December 2020 for any family law issues that may arise prior to Christmas and is available for urgent issues over the holidays.

Binding Financial Agreements

Why you need Independent Legal Advice on Binding Financial Agreements

By Articles, Family Law

“I have a simple agreement, I just need it witnessed”.

If I had a dollar for every time I had heard that in the years since Binding Financial Agreements became part of the Family Law landscape in Australia.

One of the major protective measures for family law litigants proposing to sign a Binding Financial Agreement is the requirement for them both to have received independent legal advice prior to signing the agreement. This advice must truly be independent.

This requirement is provided for in the Family Law Act (the ‘Act”).  The advice that is required to be given by a party’s lawyer is specifically about:

  1. The effect of the agreement upon the rights of the party; and
  2. The advantages and disadvantages to the party, at the time the advice is being given, in signing the agreement.

If this advice is not given, then a BFA can be declared not binding upon the parties.

A very clear example of the effect of failing to receive such independent advice is the case of Purdey & Millington [2018] FCCA 213 – see full decision here

In this matter:

  • The parties married in 2003 and separated in or around 2014.
  • There were two minor children of the relationship who were living with the Wife.
  • The parties signed a BFA on 16 September 2014.
  • In August 2017 the Wife applied to have the BFA declared not binding upon the parties – thus giving rise to an ability to claim property settlement.

The Wife asserted that she did not receive appropriate independent legal advice despite the document certifying that the requisite legal advice was provided.

The Wife’s case was that, after having some informal discussions, she went with the Husband to his Solicitor on 16 September 2014, to draw up what she believed to a separation agreement but that it was only to deal with some aspects of their property settlement not all of them.  She believed that in Australia, you had to sign papers with a Solicitor to be considered formally separated.

After the meeting with the Husband’s Solicitor, the Husband then took the Wife to a meeting with a Solicitor who had been arranged for her.

The Husband asserted he took the Wife to the Solicitor as she “didn’t know how to get there”.

The Wife asserted that the Husband was present during the meeting with her Solicitor, which the Husband denied (saying he only came in at the start and at the end).

The Husband agreed that he paid for the Wife’s legal advice.

During her evidence, the Solicitor for the Wife stated as follows:

  • The Wife was referred to her by the Solicitor for the Husband.
  • She could not recall if the Husband was present during the meeting.
  • She had received a copy of the BFA two or three days before the meeting.
  • That during the meeting she went through the relevant provisions of the Act in relation to the effect of the document and went through each page so that the Wife would understand what was “going on”.
  • She spoke with the Wife in English during the meeting.
  • She did not ask the Wife if she required an interpreter.
  • She had kept file notes of the meeting with the Wife.

The Court found that the Wife’s Solicitor who was by then not practicing, was not a witness of truth for the following reasons:

  1. The firm at which the Solicitor was practising at the time had no file opened in the name of the Wife; and
  2. She did not produce the file notes which she asserted in oral evidence were in existence.

Ultimately the Court found that the Wife had displaced the inference which could be drawn by the certificate annexed to the Financial Agreement and held:

  • The arrangement for the Wife to receive legal advice was not made independently with the Wife, rather it was arranged by the Husband.
  • The meeting, which endured for a maximum of 20 minutes, was insufficient for appropriate advice to be given to the Wife in any circumstances, even more so when she had limited English skills.
  • The Husband was responsible for and paid for the legal fees of the Wife.
  • The Husband was present for the duration of the meeting between the Wife and the Wife’s Solicitor.
  • In the absence of file notes to support an inference of proper engagement in the wife, it could not be found that the Wife received competent legal service or the provision of any advice at all.

The Court referred the matter back for resolution through the usual litigation process.

This case highlights the utmost importance of obtaining proper and independent advice prior to signing a Binding Financial Agreement.

Best case practice requires that there be a number of discussions between a party and their lawyer prior to signing a Binding Financial Agreement and further that the independent legal advice be given in writing and acknowledged by the client as having been received. This is particularly important when the circumstances of the agreement are such that the client is being advised not to sign the document.  This practice is adopted irrespective of the manner in which the matter was referred to the family law team at OMB Solicitors.

Whilst this practice may seem unnecessary when parties are in agreement as to their property settlement, it is done to ensure that the Binding Financial Agreement is considered as binding as possible.

To ensure that your Binding Financial Agreement complies with all relevant legislative requirements and that you receive proper and independent legal advice, contact our Gold Coast Family Lawyers team for advice.

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