If you are in the process of separating and settling financial matters, it is vital that you understand the importance of providing and receiving financial disclosure to and from your former spouse.
Table of Contents What is financial disclosure? What is financial disclosureIn family lawfinancial proceedings, Rule 6.06 of the Family Law Rules imputes each party with a duty of full and frank disclosure. This means that you must provide to your former spouse all information financial relevant to the dispute, and vice versa. You and your former spouse will be required to provide to each other copies of all financial documents that relate to your property settlement. A document will be relevant if it discloses information on your assets, liabilities and superannuation entitlements. Examples of financial disclosureBelow is a general list of disclosure documents that you may be required to disclose:
Failure to provide full and frank financial disclosureShould either yourself or your former spouse fail to provide sufficient financial disclosure, the Court has wide discretion with regard to consequences. The Court may simply order the non-disclosing party to provide further financial disclosure. The Court may even require the non-disclosing party to pay the other party’s legal costs. Alternatively, the Court may find the non-disclosing party guilty of contempt of Court and issue a serious penalty or fine. Another approach the Court may take is to dismiss the non-disclosing party’s application. Ultimately, a failure to provide sufficient financial disclosure demonstrates a lack of respect to the Court and may negatively impact any family law related matter. None of these outcomes are favourable to any party involved, therefore it is always the best option to disclose as much financial material as possible to avoid an adverse outcome. We advise that you provide as much disclosure as possible from the outset and your solicitors should be able to discern which documents are relevant or not. What if my former spouse is not disclosing all financial material? financial disclosureIf you believe that your former partner is withholding financial documents, and your matter is before the Court, there are processes via the Court rules that your family lawyer can pursue on your behalf. For instance, you may wish to:
Need Legal HelpLook no further than James Noble Law! Proudly serving Family law serives in Brisbane, Cairns Family law, and Milton Family Law Services, we are your trusted Family Law advisors. Secure a complimentary 20-minute consultation with our adept legal team – absolutely no commitments involved! Schedule your appointment now to connect with our experienced Family Lawyers. Discover: Accomplished Brisbane Family Lawyers Devoted Cairns Family Lawyers Proficient Milton Family Lawyers Easily locate us on Google Maps and take the proactive step towards resolving your legal matters. Seize this opportunity to gain valuable insights from our seasoned professionals. Act today, and let us guide you towards legal clarity and confidence! You may also like to know more information about the
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Mediation and Dispute Resolution in Family Law Matters in Cairns, Australia
Family law matters can be emotionally charged and complex, often requiring a delicate approach to resolve conflicts and disputes. In Cairns, Australia, mediation and alternative dispute resolution methods have gained prominence in addressing these issues. By offering a more collaborative and less adversarial approach, mediation provides families with a means to reach fair and mutually agreeable resolutions. In this blog, we will explore the importance of mediation in family law matters and the role it plays in Cairns’ legal landscape. Table of Contents The Role of MediationMediation is a voluntary process that involves a neutral third party, known as a mediator, facilitating communication between disputing parties. In family law matters, mediation is frequently used to resolve issues such as divorce, parenting arrangements, spousal support, and property division. The primary goal of mediation is to help families arrive at a mutually acceptable agreement while avoiding costly and emotionally draining court battles. Benefits of Mediation in Cairns Benefits of Mediation in CairnsThe benefits of mediation include, but are not limited to, the following:
In Cairns, the mediation process in family law matters is typically structured as follows:
By fostering open communication and cooperation, mediation allows families to take control of their situations, make informed decisions, and work towards creating a harmonious post-dispute life. In Cairns, this method plays a crucial role in helping families find equitable and peaceful resolutions to their family law matters. Need help?Contact the Cairns family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers in Cairns. We are located in Google map: Accomplished Brisbane Family Lawyers Committed Cairns Family Lawyers Skilled Milton Family Lawyers in Google Maps Effortlessly pinpoint our location on Google Maps and commence the journey to resolve your legal matters with confidence. Don’t delay – take the initial step towards tranquility today! 🔗 For more information, visit our website: James Noble Law Family Violence and AbuseLike all practitioners, the ICL is expected to be familiar with the relevant provisions of the Family Law Act 1975, the Family Law Rules, the Family Violence Best Practice Principles of the Federal Circuit and Family Court of Australia and the Family Court of Western Australia.
The ICL must also be familiar with other relevant best practice guidelines and where relevant, the protocols between the court and state and territory departments responsible for the investigation of child abuse. Family violence and abuse are serious issues whenever they have occurred and should always be presented as being so. They are considerations pursuant to section 60CC of the Act of which a court must take account. Their degree of relevance in a particular case should be considered with the assistance of a counsellor or other mental health professional who has knowledge of family violence and abuse issues. In appropriate cases a full assessment should be conducted by such a counsellor or other mental health professional prior to the matter being settled or heard by a court. Particular difficulties can arise for the ICL where one or more of the parties is unrepresented. While it is not expected that the ICL will present the case for an unrepresented party, the ICL should ensure that as far as practicable, evidence concerning family violence and abuse that is relevant to the best interests of the child is put before the court. The ICL is expected to be alert to any risk of harm to a child that may arise from the other parties, or the physical environment in which the child may be. It will usually be inappropriate for the ICL to bring the child into proximity with an alleged perpetrator of harm. Where this does occur, visual or verbal contact with a party may be harmful and it will be necessary to carefully consider whether interview arrangements and the physical setting need to be structured in particular ways in order to protect the child and/or accompanying family members. Cross-cultural and/or religious mattersThe ICL needs to take particular care in matters involving cross-cultural and religious issues. The ICL should be aware of Article 14 of the United Nations Convention on the Rights of the Child which states:
During the course of a matter the ICL needs to:
This is likely to entail consultation with extended family members and significant others from within the If the matter proceeds to trial, the ICL should comply with all procedural and timetable requirements. The ICL should identify and obtain relevant documentation, organise the preparation of appropriate reports and arrange for relevant witnesses such as State. Welfare Authority officers, police officers, school teachers or similar persons to give evidence. The ICL should be proactive in matters heard under Division 12A and be familiar with community based organisations which can provide continuing assistance to the child and the child’s family. The ICL is to promote the timely resolution of the proceedings that is consistent with the best interests of the child. The ICL should be proactive and bring to the court’s attention matters which might hinder the court’s capacity to determine the matter on a final basis (for example, a family report not being progressed). Where the ICL has formed a preliminary view as to the outcomes which will best promote the child’s best interests, it may be appropriate to inform the court at the commencement of the first day of hearing of those views and where appropriate, provide details of draft orders. The ICL is to arrange for the collation of all relevant and reasonably available evidence including expert evidence where appropriate, and otherwise ensure to the extent possible, that all evidence relevant to the best interests of the child and the considerations set out in section 60CC of the Family Law Act 1975 is before the court. The ICL is not responsible for adducing evidence to establish the case of a party. The ICL is to test by cross-examination or other processes where appropriate, the evidence of the parties and other witnesses, including witnesses who are called by the ICL. The ICL is to make submissions evaluating the evidence and the proposals of each party and in doing so it is expected that the ICL will consider any practical problems associated with, and possible solutions for, such proposals. In appropriate cases the ICL will also make submissions as to the proposed terms of orders. Children rarely give evidence in proceedings. However, there may be cases where consideration is to be given to what direct role the child might have in giving evidence to the court. If the ICL believes that it may be appropriate for the child to give evidence, the ICL should consult with the Family Consultant or single expert. Where a child of sufficient maturity wishes to give evidence, the child should be appropriately advised and the opportunity to apply to give direct evidence canvassed. The purpose of section 100B should be explained to the child. Need help?Contact the Brisbane family law team at James Noble Law today for a FREE 20-minute consultation no obligation. To schedule an appointment with one of our Qualified and experienced Affordable Family lawyers in Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the Breaches of Financial Court Orders are common, though not ideal in Family Law matters, especially for property matters where large sums of money are to be paid and transfer of property is to be arranged.
In general, financial orders require payment of a sum of money or the transfer of property/chattels. When a party refuses or fails to pay the sum or do all necessary for the transferred property, they default their obligations under such orders, and the other party is able to enforce the Court order. There are essentially three (3) options when a breach of financial orders occurs, being:
An Application to Vary or Set Aside would usually work if the Court orders were made on an interlocutory (interim) basis and were inefficient, improperly drafted, or unable to be complied with. This application can only be made in accordance with section 79A and section 90SN of the Family Law Act 1975. Blackwell & Scott (2017) FLC 93-775 demonstrated a successful Application to Set Aside the orders, where the de facto husband did not make payment to the de facto wife of $130,000 for 13 months after he was required to do so by the Court orders. An Application for Enforcement can be made if the orders were appropriately drafted and are able to be enforced. Rule 2.01 of the Family Law Rules 2021 sets out the required application to be filed with the Court. Rules 11.01 to 11.09 set out the rules for drafting and filing an Application for Enforcement. Before any application is filed, it is generally best to draft a letter to the other party requesting they fulfill their obligations under the orders. Doing nothing may not sound appealing to a party who wants the money and/or property they were ordered to receive, however, it can sometimes work in their favor. If a party decided not to comply with interim orders, it might be beneficial to allow the presiding judicial officer to draw the inference that the failure to comply with such orders may not have assisted their case. This can be seen in the case of Jones v Dunkel (1959) 101 CLR 298. It can also be more cost-effective to bring an interim application seeking compliance with the orders, especially if the trial is upcoming, as it can be dealt with at the final hearing. Need Legal Help?If you need help, please contact the Brisbane Family Lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find family lawyers Brisbane on Google Maps near you. You may also like to learn more about:
Setting aside a Binding Financial Agreement (“BFA”) by reason of undue influence and unconscionability. This was thoroughly canvassed in the Appeal, Beroni & Corelli [2021] FamCAFC 9 (10 February 2021)Communication Between the Parties, BFA: The parties had difficulty with communication; the husband was not able to speak the wife’s language, and the wife had limited English this allowed the parties to have some communication. This hindered effective communication between the parties, BFA.
The wife claimed a variety of relief to impugn the BFA, including non est factum, duress, unconscionability, undue influence, misrepresentation, unilateral mistake, estoppel, repudiation/renunciation and statutory claims under s 90UM and s 90UJ of the Family Law Act 1975 (Cth) (“the Act”). The Trial Judge was satisfied that there was actual undue influence, by virtue of the following matters: THE APPEAL Ground 1 – The primary judge erred in accepting the claim by the [wife] for undue influence in circumstances where the wife was advised as to the essential nature of the financial agreement, understood it, and chose to reject her solicitor’s advice not to sign it. The key findings as to undue influence made by the primary are reproduced as follows: “I am satisfied that there was actual undue influence, by virtue of the following matters (a) The general position of dominance which the husband had in relation to the wife; (b) His insistence, over a considerable period of time, that the BFA be signed, and his later insistence it be signed without amendment; (c) The wife’s fear that he may inform immigration authorities that she was in breach of her visa conditions; (d) The husband and wife’s knowledge that, in order to obtain a permanent visa, the relationship needed to continue, but it could only continue if the BFA was signed; and (e) The wife’s dependence upon the husband for accommodation and income in Australia.” The Appellant Judge was not persuaded that the execution of the agreement by the wife was the product of her free will. Particularly, the stark improvidence of the transaction is unlikely to be the product of her free will, in the face of advice not to enter it. The Judge specifically dealt with the husband’s assertion that signing the BFA was just a part of the wife’s scheme to get permanent residency in Australia, and in signing it, she knowingly took a chance that things would go well for her. The husband claimed that, in reality, it was he who was the victim of the wife’s plot. The Judge rejected that claim. He stated.” It is fanciful to claim that the husband was emotionally vulnerable to the wife’s manipulation. If that were so, why insist on the BFA at all? Why become angry at the suggested changes? Why reject them and insist on it being signed unaltered? The answer to all those questions, I am well satisfied, is that the husband uses his money to manipulate and control others, and if it were at any risk, he would have terminated the relationship prior to three years.” The Judge referred to the plurality in the High Court decision of Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 (“Thorne v Kennedy”) at [31], the basis for a claim of undue influence is the absence of a person’s free will. In considering the test, their Honours said this: “The question whether a person’s act is “free” requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party. It is not necessary for a conclusion that a person’s free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a “mere channel through which the will of the defendant operated”. Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be “markedly sub-standard” as a result of the effect upon the person’s mind of the will of another.” The Judge dealt with the husband’s contention that, having had explained to her the essential nature of the BFA, in circumstances where the wife’s solicitor advised her against signing the BFA but she rejected that advice, the wife acted on her own free will. “The husband asserts that where independent advice has been given, and understood, as to the advantages and disadvantages of a transaction, a claim for actual undue influence should fail. Further, the husband contends that in rejecting the wife’s affidavit evidence in relation to the attendance upon Mr E the primary judge could not have been satisfied that the wife’s case for undue influence was made out.” The Judge went on to say, “Finally as to this ground, it was contended by the husband that whatever the wife’s level of proficiency in English was, the primary judge found that it was sufficient for her to understand the essence of the BFA and to exercise her free will in respect of entering the agreement. In addressing this ground it is necessary to also refer to what the primary judge said in relation to the wife’s claim for unconscionability as those findings relate to the claim for undue influence. They are as follows: The wife says that she was in a position of special disadvantage in dealing with the husband because: (a) She could not speak, read or understand English well, and was dependent upon her husband to assist her to do so: (b) She had no understanding of the law of property division upon the breakdown of a de facto relationship, whereas the husband did; (c) She could not read the BFA, whereas the husband could; (d) She was dependent upon the husband not informing immigration authorities of the breach of her guardian visa terms; (e) She was dependent upon the husband for her financial security in Australia, in that as of 31 March 2011, she was unable to work in the country, and her only form of income was an allowance in the sum of $2,000.00 per month which the husband was paying her; (f) She was dependent upon the husband for her accommodation, and she had no residence of her own in Australia, or the means to acquire one, albeit perhaps she could have rented; (g) She likely did not know that the BFA was manifestly unfair until she was told that by Mr E on 31 March, by which time she had already determined to sign it; (h) The only way that the wife could acquire permanent residence in Australia was by remaining in a relationship with the husband and obtaining a permanent visa, however the wife knew that if she did not sign the BFA, the relationship would not continue, at least past three years; and (i) The wife was fearful of returning to Country G because of her ex-husband, which the husband was aware of.” The Judge was satisfied that all of those matters were established on the evidence. In addition he was further further satisfied that the husband was generally controlling of the wife, and that she was somewhat fearful of him. “All of these, to my mind, combine to establish that the wife was indeed in a position of special disadvantage, vis-à-vis the husband, at the time she signed the BFA.” The Judge was not satisfied that the advice which Mr E gave, or at least tried to impart to the wife on 21 March 2011, was sufficient to remedy that special disadvantage. He went on to say,” Leaving aside the inevitable language difficulties, which necessitated an interpreter, there is the further fact that I am well satisfied the wife was never given a copy of the BFA – as it would have been pointless, because she could not read it, much less understand it – and I am not persuaded that the wife had any real understanding as a result of her discussion of 30 minutes with Mr E on 31 March, as to the sort of value of claim which she would be giving up. The advice must have been, necessarily, given the language barrier and the 30 minute duration of the conference, wholly inadequate to remedy the position of special disadvantage.” The Judge then dealt with the question as to whether the husband unconscientiously victimised, exploited, or otherwise conducted himself towards the wife by, firstly, insisting that she sign the BFA, and secondly insisting via her solicitors that it be in the proffered form, without variation. It was the Judge’s view he did. “The husband must have known, even without Mr E’s letter, that the terms of the BFA were simply outrageous. In my view the husband’s insistence that it be signed, and signed in an unamended form, given his knowledge of the wife’s circumstances of special disadvantage, means that his conduct in having the agreement signed, and insisting upon it being complied with, are unconscionable. It is a form of exploitation of the wife. It is, both legally and morally, inequitable.” The Judge then dealt with the wife’s contention that these findings overcome the husband’s argument that the wife understood the essential nature and the advantages and disadvantages of entering into the BFA. “The wife did not “have any real understanding … as to the sort of value of a claim which she would be giving up”. Indeed, nowhere in the evidence, whether in the wife’s solicitors’ file note or otherwise, was there evidence of an explanation of the advantages and disadvantages of entering into the BFA provided to the wife by her solicitor. Given the 30-minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA.” He went on to say, “As the wife submits, and as was found by the primary judge the fact that the wife was advised against signing the BFA, but did so anyway, maybe an “indicium of undue influence” as was held to be the case by the plurality in Thorne v Kennedy at [56]. We agree with this submission.” The Judge dealt with the wife’s argument that the onus in relation to undue influence shifted to the husband as the dominant party to show that the transaction was the product of the wife’s free will and was unaffected by undue influence. The Judge reached the conclusion that the husband was unable to do that. Ground 2 – The primary judge erred in finding that there was actual undue influence by virtue of the matters identified at [214] of the reasons (whether separately or collectively). The husband submitted that the matters relied upon cannot overcome the effect of the wife’s solicitor’s advice being given, understood, and acted upon by the wife. The Judge contended that whilst the factors might suggest a disparity in bargaining power between the parties, much more is required to establish a finding of actual undue influence. As to the husband’s submission that the factors cannot overcome the effect of the wife’s solicitor’s advice being given, understood, and acted upon, the wife contends that this is misconceived in at least three aspects, namely:
The husband also contended that the factors identified “overstate the precariousness of the wife’s position” namely:
In response, the wife submitted that:
As the plurality held in Thorne v Kennedy, there are different methods of establishing undue influence, as follows: “There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction. That was the approach relied upon by the primary judge in this case. Another way in which undue influence can be proved is by presumption. This presumption was relied upon by Ms Thorne in this Court as an alternative. A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person’s free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a “substantial benefit” to another, which cannot be explained by “ordinary motives”, or “is not readily explicable by the relationship of the parties”. Although the classes are not closed, in Johnson v Buttress Latham CJ described the relationships that could give rise to the presumption as including parent and child, guardian and ward, trustee and beneficiary, solicitor and client, physician and patient, and cases of religious influence. Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party’s free will. The husband contends that, given the primary judge rejected that this was a case of presumed undue influence, it fell into the first category described of Thorne v Kennedy, and thus the onus of proving undue influence rested with the wife. However, the wife submits that the husband has misconceived the issue of onus, both in respect of undue influence and unconscionable conduct. She contends that there is no challenge to the primary judge’s findings that the relationship between the husband and wife was one of ascendency and dependence and that the BFA transaction was highly improvident for the wife, and thus the particular relationship fell into the recognised category of presumed undue influence as discussed in Thorne v Kennedy. When that was put to counsel for the husband at the hearing of the appeal, it was suggested that the primary judge’s use of the words “actual undue influence” in making the finding excluded it from falling within the presumption categories. We do not accept that submission. The findings of his Honour and established the presence of a particular relationship between the husband and wife where the husband had a position of ascendancy and the wife was in a position of dependency. We fail to see why those findings would not fall into the third category recognised by the plurality in Thorne v Kennedy, and which then requires the dominant party to demonstrate that the transaction was the product of the weaker party’s free will. This is also the case for unconscionable conduct. In the High Court decision of Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 (“Amadio”) at 474, Deane J held that “an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable”. There is no merit in this ground. Ground 4 – The primary judge erred in finding that the wife was at a special disadvantage, and that [the husband] had unconscientiously taken advantage of this special [dis]advantage.The principles relevant to a finding of unconscionability were summarised by the plurality in Thorne v Kennedy at [38]–[40] and quoted by the primary judge (at [204]) as follows: A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage “which seriously affects the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests”. The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring “victimisation”, “unconscientious conduct”, or “exploitation”. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage. In Commercial Bank of Australia Ltd v Amadio, Deane J said that the equitable principles concerning relief against unconscionable conduct are closely related to those concerned with undue influence. The same circumstances can result in the conclusion that the person seeking relief (i) has been subject to undue influence, and (ii) is in a position of special disadvantage for the purposes of the doctrine concerned with unconscionable conduct. For instance, in Diprose v Louth (No 1), the trial judge, King CJ, observed that both doctrines were satisfied where the defendant “was in a position of emotional dominance which gave her an influence over the [plaintiff] which she exercised unconscientiously to procure the gift of the house”. Before the High Court in that case, Mr Diprose relied only upon the ground of unconscionable conduct. Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Commercial Bank of Australia Ltd v Amadio, Mason J emphasised the difference between unconscionable conduct and undue influence as follows: “In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.” First, the husband submits that his Honour’s findings stop short of the finding required for unconscionability, such that the special disadvantage needs to “seriously [affect] the ability of the innocent party to make a judgment as to [the innocent party’s] own best interests”. The husband contends that his Honour did not make that latter finding. Secondly, the husband submits that not even the factors supported the finding that the wife was at a special disadvantage, let alone one which seriously affected her ability to make a judgment as to her own best interests. He contends that the factors go to the wife’s asserted difficulties in understanding the precise terms of the BFA, but these did not prevent her from understanding the essential nature of what she was signing as found by the primary judge in rejecting the wife’s claim for non est factum. The remaining factors are said to go to the wife’s dependence on the husband. Thirdly, the husband submits that because the primary judge rejected the wife’s more serious allegations, there was no basis for a finding of special disadvantage by reason of the findings. Fourthly, the husband also challenges the factual correctness of the finding that the wife did not know that the BFA was manifestly unfair until she was told by her solicitor on 31 March 2011. The husband says that this finding is inconsistent with paragraph 39 of the wife’s affidavit filed 16 May 2016, where the wife deposes that she “was aware that [the BFA] was heavily weighted in favor of the de facto husband in respect of financial matters”. It is also said that the finding is inconsistent with the wife’ solicitor’s letter sent on 17 March 2011 complaining about the BFA’s one-sided nature. Although the primary judge found that the wife’s solicitor sent that letter without the wife’s instructions, the husband contends that an inference to the contrary should have been made in light of the wife failing to call her solicitor (which is the subject of Ground 7). Finally, the husband submits that even if the wife was subject to a special disadvantage, there was no basis for the finding that the husband had unconscientiously taken advantage of that disadvantage. The husband says that what his Honour finds cannot constitute victimisation and exploitation of the wife. Again, the husband seeks to distinguish these circumstances from the circumstances in Thorne v Kennedy and submits that the husband in this case did not give an ultimatum to the wife, as the husband did in that case. As to the husband’s first submission, the wife says that it is purely “semantic” and that the findings “implicitly and necessarily included a finding that the wife’s ability to make a judgement as to her own best interests was seriously impaired”. The husband’s submission overlooks the primary judge’s findings where his Honour was “not persuaded that the wife had any real understanding … as to the sort of value of claim which she would be giving up” and that the advice was “wholly inadequate to remedy the position of special disadvantage”, together with the findings of “exploitative insistence” that the wife sign the agreement unamended. As the plurality noted in Thorne v Kennedy, the same circumstances can result in the conclusion that the wife has been subject to undue influence as well as being in a position of special disadvantage for the purposes of the doctrine concerned with unconscionable conduct. Thus, the findings of undue influence (which self-evidently arise from the findings bolster the conclusion that “the special disadvantage of the wife entailed that it seriously affected her ability to make a judgement about her own interests. We agree with that submission.As to the criticism of the factors, counsel for the wife correctly asserts that it is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect (for the purposes of rejecting the claim for non est factum), but it is a very different thing for a person to have sufficient knowledge and understanding adequately to protect their own interests (Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 at 415; Amadio at 462). In relation to the argument that the primary judge rejected the wife’s serious allegations and thus the remaining findings were no basis for establishing special disadvantage, the wife submits, and we are persuaded, that this represents an unjustified “elision” from evidence not accepted to claims found, and that the unchallenged findings do justifiably inform the conclusion of special disadvantage. The husband’s challenge to the factual correctness should also be rejected because it is based upon a misrepresentation of the evidence. The fact that the husband attended with the wife upon her solicitor on 17 March 2011 corroborates the fact that the BFA would not have been discussed in any detail on that occasion, and thus the finding that the wife was unaware of its unfair nature before 31 March 2011 is made out. As to the husband’s submission about the “ultimatum” that was relevant in Thorne v Kennedy, it is said that that was a matter of fact and evidence, and not a prerequisite to a finding of special disadvantage as the husband is endeavouring to make out. In any event, the wife here was under a practical ultimatum, in circumstances where the husband was insistent upon her signing the BFA, and the parties were proceeding on the basis that the wife’s current visa expired in November 2011, and the divorce, the BFA and the spouse visa all went together. This, coupled with the primary and intermediate findings of fact, demonstrates that the husband took unconscientious advantage of the wife’s special disadvantage. Again, this ground has no merit. Ground 5 – By setting aside the [BFA] on a basis that gave decisive weight to its asserted one-sided nature, the primary judge misconceived of [sic] the Court’s jurisdiction to set aside a financial agreement:The husband’s first contention here relates to the scope of the legislative policy behind allowing financial agreements between parties to have binding force under the Act, namely s 90G and s 90UJ. That is, a financial agreement will be binding under the Act where the requirements in s 90G or s 90UJ are met, and that allows for personal autonomy between the parties about their financial affairs (Hoult v Hoult [2013] FamCAFC 109; (2013) FLC 93-546 at [310]). However, that does not mean that their choice is insulated from vitiating conduct (for example, see s 90UM and s 90UN of the Act). Secondly, it is contended that the primary judge’s expressed conclusions as to undue influence and unconscionability, such as “manifestly unfair”, “simply outrageous” and “stark improvidence”, demonstrate that his view of the terms of the BFA was the decisive factor in his Honour’s decision to set aside the BFA. It is submitted that this reasoning misconceives the nature of the Court’s jurisdiction to set aside a BFA. Curiously though, the husband concedes that the terms of an impugned BFA will be relevant where the BFA is sought to be impugned by vitiating factors such as duress, undue influence and unconscionability and so much was held in Thorne v Kennedy at [56] where the plurality said that unfair and unreasonable terms of a BFA will be a relevant consideration in a primary judge’s decision as to whether the agreement is vitiated and can be an “indicium” of undue influence. Nevertheless, the husband submits that the terms of the BFA could not amount to an indicium of undue influence or unconscionability, given the clear warning provided by the solicitor to the wife about its terms. We consider that the primary judge did not misconceive the nature of the court’s jurisdiction to set aside the BFA, given his recitation of the relevant principles and his discussion. The findings and characterisations of the primary judge were entirely appropriate, and by no means were they the entire basis for his Honour’s decision to set aside the BFA. As put by the wife, an unfair, disadvantageous or improvident transaction can be a necessary, albeit not sufficient, element of a transaction liable to be set aside due to vitiating factors. The primary judge’s comments were a summary of the relevant findings, and the degree of the perceived unfairness of the BFA’s terms was only one factor amongst the many factors taken into account. This ground of appeal is without merit. Ground 6 – In light of the wife’s failure to call her solicitorit was not open to the primary judge to find: (a) That the wife had suffered undue influence; (b) That the wife was under a special disadvantage; (c) That the solicitor’s explanation of the [BFA] was very rudimentary, and that the wife probably understood only some of it; (d) The solicitor’s explanation was limited, perhaps with an expectation on the part of the solicitor that the document would be found unenforceable. Grounds 6 and 7 relate to the wife failing to call her former solicitor, Mr E. As can be seen, here the husband asserts that the findings made by his Honour were not open on the evidence without calling Mr E. As to undue influence, it is submitted that absent evidence from the wife’s solicitor which disavowed what was in his certificate and file note, the evidence did not support that the wife’s will was overborne in signing the agreement. Further, the husband contends that absent the solicitor’s evidence, there was no basis for the primary judge’s findings about the solicitor’s “rudimentary” explanation, and that the wife probably only understood some of it. The husband similarly makes the same argument in respect to unconscionability, namely, that the wife’s solicitor could not have completed the certificate and file note in good conscience if this had presented to him as a case where the wife was in a position of special disadvantage. As a result, the husband contends that in the absence of a finding that the wife’s solicitor failed in his duties, and that the certificate he signed as to the advice he gave was false, it was not open for the primary judge to make the findings he did. However, the wife contends that despite the wife’s solicitor not giving evidence as to the circumstances of the execution of the BFA, there was ample evidence to support the findings his Honour made, namely:
Further, the wife says that if this ground of appeal is suggesting that the primary judge should not have made those findings without hearing from the wife’s solicitor, it is the case that a party is not obliged to call a particular witness (Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361 at [63]), and further, the wife’s solicitor could have been called by the husband. The wife expressly waived privilege in her communications with the solicitor, and invited the husband to call him instead. However, if this ground is about making the findings adverse to the wife’s solicitor without him being called upon to answer, the point is plainly wrong. There is no authority which says that a court cannot make adverse findings about the conduct of a solicitor, when that solicitor fails to give evidence. In any event, it cannot be overlooked that the solicitor here refused to cooperate with the wife. The wife issued a subpoena to the solicitor to give evidence, but he refused to cooperate. He must clearly have been on notice of the nature of the issue to which his evidence was relevant, yet he declined the opportunity to be heard before adverse findings were made. Finally, it cannot be held against the wife that she failed to call a witness in circumstances where she could not proof them, or know their evidence (Payne v Parker [1976] 1 NSWLR 191 at 197 (“Payne v Parker”)). A party is not obliged to call a witness who will not cooperate. This ground has no merit. Ground 7 – The primary judge erred in finding that the rule in Jones v Dunkel did not apply to the wife’s failure to call her solicitor. Applying that rule, the primary judge should have inferred that:(a) The solicitor’s evidence would not have assisted her case; (b) The wife was aware of the one-sided nature of the agreement prior to her meeting with her solicitor on 31 March 2011; (c) Prior to the wife signing the [BFA] on 31 March 2011, the solicitor had advised the wife about the effects of the agreement on her rights, and about the advantages and disadvantages of the agreement; (d) The wife understood the solicitor’s advice; (e) The wife understood that it was the opinion of her solicitor, whose job it was to consider her interests, rather than her husband’s, was that the financial agreement was not “fair” as between husband and wife; (f) Despite receiving and understanding the solicitor’s advice, the wife wished to sign the agreement. The primary judge introduced this issue in the reasons as follows:“Mr E was the only other person present when the wife signed the BFA. He was, on other occasions, the only person present for periods during earlier conferences, and one of three people present for others. For these reasons, he must have been able to give evidence relevant to the events which transpired on those occasions, the wife’s proficiency in English, and her apparent understanding of the substance of the BFA. No affidavit of Mr E was filed by the wife, nor was the subpoena she served on him called upon. However, she expressly waived privilege in her communications with him, and invited the husband to call Mr E instead. The husband says an inference should be drawn that Mr E’s evidence would not have assisted her case; the wife denies such an inference should be drawn.” His Honour then set out the relevant legal principles which applied citing Glass JA in Payne v Parker at 200–202. His Honour continued: “Turning firstly to the conditions for the potential operation of the rule, the first is whether or not the absent witness would have been expected to be called by one party rather than the other. Mr E was the wife’s solicitor, and ordinarily subject to the restraints of legal professional privilege, which could only be waived by his client, one would expect her to call him. However here the wife has waived legal professional privilege, and indeed expressly invited the husband to call him instead. Mr E’s professional competence is plainly raised by these proceedings. Moreover, there may be an interesting argument as to whether in advising the wife, he owed a duty of care not only to her, but also to the husband. Therefore, not only do his interests not necessarily align with those of the wife in the circumstances, but indeed, might not align with those of the husband. He has refused to cooperate with the wife in these proceedings. That confirms my suspicion that he is, or perceives that he is, at litigious risk in relation to his conduct. It would not be appropriate in those circumstances for the wife simply to call Mr E blind, even with the prospect of being able to have him declared hostile, and hence cross-examine him. In these unique circumstances, I am not persuaded that he would be expected to be called by the wife, rather than the husband. Turning then to the second matter, it is inconceivable that Mr E’s evidence would not elucidate a critical matter, namely the wife’s proficiency in English as at 31 March 2011, and also the extent to which he gave her advice as he later certified. His evidence must necessarily have been highly illuminative of both of those matters, and probably others as well. The final matter is whether his absence is unexplained. In large part, it is explained. He has not been prepared to cooperate with the wife. That in itself is an explanation, and I am of the view it is, at least, satisfactory. I decline to draw an adverse inference against the wife from her failure to call Mr E. However that is not the end of the matter. That is because, in a sense, Mr E nonetheless did give evidence. The entirety of his file was tendered. It contains not merely his file notes, but also file copy and original correspondence, and other primary documents. There is no reason to think that his file notes are not substantially accurate, or that his file is otherwise incomplete. Much of his evidence in that form is unhelpful to the wife, for instance, his certificate of advice on the BFA, and his file notes which record him having given her certain advice. Therefore even if I had been prepared to draw an adverse inference against the wife, I am far from persuaded that it would have been of a kind significantly more adverse to her than his evidence in the form of his file.” This ground of appeal challenges the primary judge’s findings above, namely that the conditions required for an adverse inference established in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (“Jones v Dunkel”) were not made out, and in particular the first and third conditions referred to by his Honour. The husband asserts that clearly the first condition was satisfied, and it was beside the point whether the wife’s solicitor was cooperative with the subpoena or not. He says it was open to the wife to call on the subpoena she issued to her solicitor to attend to give evidence. Similarly, the husband asserts that the third condition was also met, namely that the wife’s solicitor’s absence was not explained. As is evident, his Honour found that the wife’s solicitor’s absence from Court was explained, and that was due to him being uncooperative with the wife in relation to the subpoena issued to him, and that was sufficient for the primary judge in not drawing a Jones v Dunkel inference. However, the husband argues that this was an error of law on the part of the primary judge in finding that the inference was not available, and the evidence should have led his Honour to draw a number of specific inferences as outlined in the sub-paragraphs of this ground. The husband further submits that an adverse inference should have been drawn against the wife notwithstanding the rule in Jones v Dunkel. The primary judge held when evaluating the credibility of the wife that her evidence was prone to exaggeration and that “where there are issues of credibility… [his Honour] will be vigilant to see if the wife’s claims are supported by either a credible witness, or alternatively, by contemporaneous documentation”. The husband says that if this approach was followed by his Honour in evaluating the wife’s claims, he would have rejected them on the basis that they were not corroborated by a credible witness and were directly contrary to the BFA advice certificate and the wife’s solicitor’s file note. The wife asserts that the husband’s submissions misapply the rule in Jones v Dunkel. She submits that the ultimate question on appeal is not whether the rule is able to be applied, but whether the relevant findings were open to the Court. The rule merely allows, but does not compel, the drawing of inferences when a witness is not called (Manly Council v Byrne [2004] NSWCA 123 at [51]). Further, the rule does not allow an inference to be created; it must be available independently of the application of the rule. The wife emphasises the finding of the primary judge that the wife’s failure to call her solicitor was explained by his lack of cooperation with her. Moreover, the wife contends that because the wife’s solicitor was equally available to both parties, no Jones v Dunkel inference is available (Claremont Petroleum NL v Cummings [1992] FCA 446; (1992) 110 ALR 239 at 259), or alternatively, an inference is available against both parties but the particular strength of the inference against either depends on the circumstances (AMP Services Ltd v Manning [2006] FCA 256 at [49]). Bearing in mind that legal professional privilege had been waived, the husband had the wife’s solicitor’s file, the husband had the onus of displacing the claims of undue influence and unconscionability, and that the husband was asserting that sufficient advice had been given by the solicitor to allow the wife to exercise her free will, the wife contends that the Court could have drawn an inference that the husband’s unexplained failure to call Mr E would not have assisted his case. As to the claimed inferences the husband suggests should have been drawn, the wife submits that these are merely speculation or conjecture (Jones v Dunkel at 304). Ultimately, the wife asserts that this ground does not go anywhere. Even if it were established that the wife’s solicitor’s advice was to not sign the agreement, yet she still did so, that could only confirm, and not deny, the existence of undue influence (as held in Thorne v Kennedy at [56]). It is readily apparent that his Honour had regard to the objective and found facts in arriving at his findings as to the circumstances in which the wife executed the BFA, and, as the wife submits, his Honour “appropriately tested the evidence against his assessment of the wife’s reliability and satisfied himself of the conclusion he came to”. There is no merit in this ground of appeal. CONCLUSION Having found no merit in any of the grounds of appeal, the appeal must be dismissed. Need Legal Help?If you need help, please contact the Brisbane Family Lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers in Brisbane. Find Brisbane family lawyer on Google Maps near you. You may also like to learn more about:
For a conciliation conference, you must exchange information with each other and provide information to the Court before the conference. So that you and your former partner make the best possible use of the conference.
In a case about financial issues, each party must have exchanged copies of relevant financial documents with the other parties at least two days before the Case Assessment Conference. If the following documents were not exchanged prior to that conference, you must ensure they are exchanged before the Conciliation Conference:
This article provides general information about and suggests ways to prepare for, a Conciliation Conference in the Family Court. Note: Conciliation Conferences attract a fee. For more information visit the fees section www.familycourt.gov.au What must I do before the Conciliation Conference? A Conciliation Conference is conducted by a registrar (court lawyer). At the conference, the registrar will look at the case from both sides and help you explore options for settling your case without any further legal action. A registrar cannot give legal advice, however, they can talk with you about the legal principles that are applied when deciding cases. The settlement negotiations during the conference may be privileged. This means that what is said cannot be used in court later. There are some exceptions to this privilege. For example, court staff is required by law to report a suspicion or risk of child abuse and violence or threats of violence to the relevant child welfare authority. The conference will usually last at least one and a half hours but may be listed for a longer time in appropriate cases. What can I expect at the conference? The Court will usually give you instructions about what you must do before the Conciliation Conference at the Case Assessment Conference. These instructions include that, within 28 days after the conference, each party must, as far as practicable, exchange documents relevant to the financial issues as the registrar orders. The documents required may include any documents which should have been exchanged prior to the Case Assessment Conference but have not yet been exchanged (see above) and any other documents required containing evidence about:
You must: File and serve a Financial Questionnaire within 21 days after the Case Assessment Conference. Prepare with the other party and file a Balance Sheet as required – in summary:
Note – It is important that you make full and frank disclosure of all facts and documents relevant to your application. Failure to do so can delay a settlement, result in increased costs, or order for you to pay the other party’s costs. It may also lead to the Court making a greater order for a property settlement in favor of the other party. You should also read Rule 13.04 of the Family Law Rules 2004 and the Family Court’s brochure Duty of Disclosure. If you need any help please contact the Brisbane Family Lawyers team today for a FREE, no-obligation 20-minute consultation. We have Qualified and Experienced Family Lawyers Brisbane at James Noble Law. Find Brisbane family law lawyers on Google Maps Near you now. You may like to know more information about the For more information, please visit the main article source: Conciliation Conference What happens if you are pregnant and the father is no longer willing to raise the child or provide pregnancy financial assistance?
Is the father still liable to pay relevant costs? Essentially, the answer is – yes. The biological father of a child is liable to Financial help for single mums During Pregnancy and also the costs associated with pregnancy and raising the child. If you and the Father separated prior to the child’s birth, if you separated before the Father had knowledge of the pregnancy or if you were not in a relationship with the Father at the time of conception, you are still able to claim Child Birth Maintenance (CBM) from the other party. CBM is standalone financial support and distinct from child support. Who Can Apply For Child Birth Maintenance (CBM)?The Mother or the Mother’s legal representative can apply for CBM. If this application occurs, the Father of the child who is not married to the child’s mother will be liable to pay financial contributions. Pursuant to the Family Law Act 1975, if the parties were married, the Mother would not be able to make such an application. What Does The CBM Financial Contributions Cover? Section 67B of the Family Law Act proves that the Father may be liable to make financial contributions towards the following categories:
What circumstances will the Court consider when determining the Father’s Financial help for single mums During Pregnancy? Section 67C of the Family Law Act 1975 (Cth) provides for several considerations the Court must take into account when determining whether the Father should provide financial assistance to the Mother, including:
Need More info on Family Law Court? Watch this Video created by James Noble Law If you have any questions regarding the above or are seeking advice on your current position regarding financial support for child support, contact our office to speak with an accredited family law specialist on 1800 662 535 or email us at [email protected] Find us (brisbane family lawyer) at google maps Article Source: Financial Help For Single Mums Preparing an Airtight Binding Financial Agreements
Binding Financial Agreements (BFA), also referred to as “pre-nups” are created when two parties have made a fully informed decision to enter into a binding agreement. The creation of an Airtight Binding Financial Agreements requires the parties to disclose their financial position, provide reasonable time to consider the agreement and obtain independent legal representation to avoid any undue influence or pressure on the other party. This document effectively allocates assets and other financial resources in the event the marriage or relationship ceases. Whilst many people believe planning for divorce before the marriage begins is controversial or otherwise “unromantic”, a BFA is an integral part of prudent estate planning. This document is a mechanism similar to the preparation of a will or enduring power of attorney. Requirements of Creation To create binding financial agreements, several requirements must be met in accordance with the Family Law Act, including:
First and foremost, both parties must disclose their true financial or monetary asset position. In circumstances where one party attempts to hide significant assets from the spouse, the BFA may be set aside. The issue of timing is also paramount to enforceability. If you are planning on having children or have a significant life change coming up in the future, think about how these events will affect the BFA. The requirement of reasonable and fair provisions are also crucial to the legality of the document. If the document features overbearing provisions, causes unnecessary hardship on one party, or is unfair to the non-moneyed spouse, the Court may set aside the BFA. The last consideration, which is perhaps the most important, is the client’s receipt of competent independent legal advice and understanding of what constitutes unreasonable pressure, influence, demand, or conduct. If a person displayed behavior that is unconscionable, is likely to place undue influence or duress on the other party, the Court will usually set aside the agreement. To understand more, and seek clarity on your matter to create an Airtight Binding Financial Agreements please consider a Free 20-minute initial consultation with an experienced family lawyer in Brisbane. Article Source: Binding Financial Agreements Financial Settlement for Home Loans, Properties, and Mortgages, After Divorce or Separation?1/8/2021 Financial Settlement After Divorce or Separation
What Happens to Financial settlement for my Home Loans, Mortgages, and Properties After Divorce or Separation? One of the biggest concerns of parties whose marriage has broken down is what happens to financial settlement resources and debt during this process. When it comes to matrimonial assets, one of the main considerations is whether the party who resides in the main property has the capacity to maintain the residence during interim and final proceedings.Whilst it is important that the matrimonial home is maintained during family law proceedings, it does not necessarily result in whoever lives in the home during this time to retain it. In the absence of a binding financial agreement (or prenuptial agreement) between the parties, the first and foremost process of finalizing financials will always be mediation. Sale of Property and Debt Importantly, if the matrimonial home is to be sold in the financial settlement, parties need to be aware of the terms of agreement of any Court Orders, the fees and expenses associated and incurred in the sale process as well as taxation implications. Debts should be similarly assessed to matrimonial assets, to ensure future fees and demanded payments can be met by both parties. Depending on the size of the asset pool and the property which is to be sold, Capital Gains Tax (CGT) can be significant, in addition to stamp duty if a property is being transferred to the other party. It is recommended to seek family law advice both from a family law specialist and financial accountant on your position in relation to the dissolution of matrimonial assets in the financial settlement. Article Source – Financial Settlement issues |
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