Jul 10, 2020 | Family Law, Litigation and Court
A binding financial agreement also commonly referred to as a ‘pre-nuptial agreement’ is an agreement which can allow for certainty, trust, and peace of mind in a relationship.
However, the High Court has made it clear in a recent case that it will not enforce any binding financial agreements as a consequence of unconscionable conduct, particularly when there is a significant power imbalance between the parties. Unconscionable conduct is defined to mean conduct which is so harsh that it goes against good conscience. A common instance is when an innocent party is subject to a special disadvantage which seriously affects the ability of the innocent party to make a judgment as to their own best interests.
What are Binding Financial Agreements?
Binding financial agreements are legally binding agreements that address what happens to a couple’s finances and property in the event that there is a break down in a marriage or de-facto relationship.
The Family Law Act 1975 is the relevant legislation which applies to binding financial agreements. Importantly, a binding financial agreement can protect assets including cash, property, superannuation and inheritances. However, in order for a binding financial agreement to be binding on the parties’, it is prudent that each party obtain independent legal advice, and the binding financial agreement must contain a statement from a legal practitioner.
Recent Case: Thorne v Kennedy
A recent High Court case has demonstrated that if a binding financial agreement is entered into in circumstances of unconscionable conduct, the agreement will not be upheld.
Thorne v Kennedy involved a binding financial agreement between a wealthy Australian property developer and his ex-wife.
The couple met online in 2006 on a website for potential brides. At the time, Ms Thorne was 36 years old, living in the Middle East with no substantial assets. Mr Kennedy was 67 years old and had assets in the vicinity of $18 million – $24 million.
Ms Thorne moved to Australia. Then, ten days before their wedding Mr Kennedy took Ms Thorne to a solicitor to obtain advice about the terms of a binding financial agreement which was purported to be entered into between them. The lawyer told Ms Thorne it was the worst agreement they had ever seen, and advised Ms Thorne not to sign it. Mr Kennedy told Ms Thorne that if she did not sign the agreement then the wedding would not go ahead. Despite the lawyer’s ‘advice, Ms Thorne signed the agreement and the wedding continued.
The couple separated in 2011 and Ms Thorne was provided with what the High Court described as a ‘piteously small’ lump sum payment based on the terms of the binding financial agreement. After lengthy legal proceedings, the High Court ruled that Mr Kennedy had taken advantage of his ex-wife’s vulnerability to obtain an agreement which was ‘entirely inappropriate and wholly inadequate.’ The agreement was entered into as a result of undue influence, illegitimate pressure and unconscionable conduct. As a result, the binding financial agreement was not enforceable and was subsequently set-aside.
Impact on Binding Financial Agreements in Australia
This ruling has been considered a landmark case in the interpretation of binding financial agreements in Australia. As a consequence of the Binding Financial Agreement being set aside, the Federal Circuit Court allowed Ms Thorne to bring a property settlement application against Mr Thorne.
This case serves to reinforce that binding financial agreements are not cheap documents and therefore appropriate advice and caution must be taken when entering into these agreements.
Contact us
If you would like more information on how we can assist you with your binding financial agreement or any other family law matters, do not hesitate to contact us on 9963 9800 or contact us via the form here.
Jul 1, 2020 | Family Law, Litigation and Court
What is a Subpoena
A subpoena is a legal document issued by the Court, at the request of a party involved in court proceedings which involves requiring the subpoenaed party to either produce documents or give evidence at a hearing.
Subpoenas in the Family Court
In family law matters, proceedings can be held either in the Federal Circuit Court of Australia or the Family Court of Australia. During these proceedings, it may be necessary for a party to issue a subpoena for relevant information to be provided in Court. Ordinarily, it may be necessary to issue more than one subpoena in Court proceedings.
Subpoenas are generally issued when one party fails to provide all of the necessary documents to the court. Subpoenas are often issued to banks or superannuation funds for purposes of seeking production of financial material related to the other party. In parenting matters, an Independent Children’s Lawyer, a lawyer who acts for the children in parenting matters, will often issue subpoenas. This may be to the children’s schools and doctor if health issues have been raised. They may also issue a subpoena to either parent’s doctor, if necessary.
Filing for a Subpoena
In some proceedings, you must seek the court’s approval before issuing a subpoena. This is especially relevant when there are court orders in place or there are less than seven days before a hearing commences. In the Federal Circuit Court, there is a capping of no more than five subpoenas to be issued by each party, unless permission is granted by the Court. There is no restrictions imposed in the Family Court for subpoenas.
If you gain the court’s approval, the filing of the subpoena can proceed as normal. The original subpoena must be filed at the Federal Circuit Court or Family Court registry (depending which jurisdiction the matter is in). You must also file enough copies for one to be served on each party in the proceeding as well as the person or organisation being asked to produce material.
Importantly, the court can refuse the issuance of a subpoena if it finds that the subpoena amounts to a ‘fishing expedition’. That is, the deliberate attempt by one party to search or investigate with the hope of discovering information on the other party. Therefore it is important that when issuing subpoenas in family law, one must ensure that they are seeking information or documentation relevant to the current court proceedings.
Filing fee
A subpoena will incur a filing fee of $55.00 per subpoena.
Serving a Subpoena
Once the subpoena has been filed, it must be personally delivered (served by hand) to the person it is addressed to.
If you are serving a subpoena to a bank or financial institution, a small amount of money must be provided to the subpoenaed party. This is known as ‘conduct money’ for the production of documents. Some banks will charge a set amount, so it is important to find out what the production of documents may cost where possible. You also need to provide a copy of the court’s brochure with the subpoena.
Objecting to a Subpoena
A party is entitled to raise an objection to the issuance of a subpoena. A number of objections which can be raised involve:
- The documents requested are irrelevant
- The documents are privileged
- The terms of the subpoena are vague or non-specific
- Insufficient time given to comply with the subpoena
- Subpoena issued without a ‘legitimate forensic purpose’
- Insufficient conduct money
In order to do so, you have to file a Notice of Objection and the matter will subsequently be listed before the court for determination.
Contact us
If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.
Jun 1, 2020 | Litigation and Court
Negligence occurs when one fails to take reasonable care to avoid causing damage to another person. It applies to both individuals and businesses. There are several factors that need to be satisfied for an individual or a company to successfully sue for negligence. These are:
- Duty of care;
- Breach of duty;
- Causation; and
- Damage
Establishing a Duty of Care for Negligence.
A duty of care makes a person responsible for taking reasonable care to avoid harm being caused to another. It exists due to the characteristics of the relationship between the parties. It arises due to the nature of the parties’ relationship. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party. Examples include a teacher and a student, a legal professional and the client and a doctor and patient relationship. There are other common relationships which give rise a duty of care. These include the duty owed by a driver to other drivers on the road.
Standard of Care and Breach of Duty.
If a person owes a duty of care to another, a court will determine exactly what duties are owed. This is considered to be “the standard of care”. Under the Civil Liability Act 2002 a professional is held to the standard of their fellow professionals. For example, a doctor or an accountant would be held to the standard of doctors or accountants and what is widely accepted as competent professional practice.
In other instances, the standard of care is what a ‘reasonable person’ would do in the circumstances to ensure the possibility of harm is minimised. It helps to balance the rights of the parties by considering the level of care that is appropriate between the parties. If the standard of care is not met, then the person has acted in breach of their duty owed to the other person.
Damages and Causation.
For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm caused by negligence could be physical and/or mental. The onus is on the plaintiff to prove harm and that the defendant’s breach of duty has caused the harm. Further, there ought not to have been an intervening event. The court will ask: would the person have suffered harm ‘but for’ the actions of the other person.
Recent negligence case – collapsed balcony
The NSW Court of Appeal considered who was to blame for a collapsed balcony (Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196).
In this case Bhides owned a residential property in Collaroy. Bhides appointed Libra Collaroy Pty Limited to manage the property. In 2012, a group of school children, including the daughter of the tenant, were on the balcony when it collapsed. There was a long history of complaints regarding the state and structural integrity of the balcony from the tenant. The tenant sued the landlord and the managing agent in the District Court of NSW. The agent and the landlord then issued cross claims against each other seeking an indemnity from the other and on the defendant for not locking access to the balcony given previous complaints and issues. At first instance, the District Court decided that the agent was 100% liable. The decision was appealed.
The Court of Appeal decided as follows:
- Judgment for the plaintiffs against the owners.
- Judgment for the owners against the agent.
- Any damages recovered by the owners from the agent to be reduced by 30%.
- Judgment for the agent against the tenant.
- The tenant is to contribute 20% to the agent’s liability to each of the plaintiffs.
- The owners and the tenant to pay the agent’s appeal costs.
- The agent and the owners to each bear their own costs of their cross claims in the District Court.
- The tenant to pay the agent’s cross claim costs in the District Court.
- The agent, owners and tenant are to respectively pay 50%, 30% and 20% of the plaintiffs’ costs.
We can gain the following from the Court of Appeal decision:
- That delegating to a managing agent will not form a defence to a claim for personal injury damages;
- That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and
- That a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to remove the risk.
Further Information
As you can see from the Court of Appeal decision above, the law of negligence is not so straightforward and it is important that you seek legal advice from a competent litigation lawyer. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, do not hesitate to contact one of our experience lawyers on 02 9963 9800 or at law@etheringtons.com.au. For more information, check out our blog here.
Apr 3, 2020 | COVID-19, Litigation and Court
COVID-19 is impacting the operation of every facet of life and work around the world. There is no exception for the courts in Australia which have seen major changes to the procedure and operation of the court system. In this article, we explore how the Family Court in particular is dealing with the COVID-19 pandemic.
The Changes
The Court has altered its operation in a variety of ways to ensure the health and safety of litigants and court staff and members.
Hearings:
The majority of court hearings and events will now be done remotely via a telephone or video conference. The Court has said that telephone appearance procedures will generally be most appropriate for the following:
- First Return Duty Lists;
- Abridgements;
- Mentions;
- Directions; and
- Interim Hearings
The Court will notify the parties as to whether their matter is able to be dealt with remotely. If it is possible, the judge and court staff will be in the courtroom during the time of the listings. Interpreters may also appear by telephone, if required. The parties can attend by telephone or video conference in the comfort of their homes or office.
Once the Court has notified the parties of the requirement to attend court via telephone, a party may ask that the matter not be heard by telephone, due to it being impractical. They may also say that their matter is urgent and requires the parties to attend in person. In this circumstance, the matter may be adjourned or remain listed for a face-to-face hearing. However, the Court has strictly imposed a limit on the number of matters which will be dealt with in open court.
Changes to Everyday Operations:
There are a number of changes the Court has imposed as a result of the Covid-19 pandemic:
- Non-urgent matters may be adjourned to a future date (meaning postponed). This is at the discretion of the judicial officer.
- The registry services of the Court will be provided remotely via telephone or online services.
- In urgent circumstances, face-to-face interaction in a registry may be allowed, but only after an initial assessment.
- All documentation will need to be filed electronically through the online Commonwealth Courts Portal.
- For urgent matters (such as those involving domestic violence) which are held in court, matters will not be listed for more than 1.5 hours, and with sufficient time in between to allow cleaning of the court to occur.
- To reduce the length of any face-to-face hearing, where possible, hearings are to be complemented with written submissions or conducted via telephone, if necessary
Impact for Future Proceedings
If you are involved in current proceedings before the Court, there may be changes in the way your matter is dealt with. It is important to be prepared for changes in the way your matter runs and what form of communication will be utilised. If your matter is classified as ‘non-urgent’ you should be prepared for your matter to be potentially postponed for a period of time.
Further information relating to court operations and COVID-19 can be accessed from the COVID-19 updates and information page on the Family Court’s website.
Where Can I Find More Information?
It is important to be fully aware of the impact COVID-19 may have on your legal matter. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via email at law@etheringtons.com.au.
Etheringtons Solicitors extends our deepest sympathies to those experiencing hardship or health concerns during this difficult time. Further information about COVID-19 can be found at: www.health.gov.au.
Jan 18, 2018 | Litigation and Court
Litigation is a way of resolving disputes that uses courts and solicitors. Disputes usually fall into the following classifications: civil or criminal.
Civil Litigation
In civil cases, your lawyer will represent your interests and fight for an outcome that is most favourable for you. This is regardless of whether you are:
- the Plaintiff – you have brought the claim
- the Defendant” – you are defending the claim
Methods of resolving a dispute between parties include adversarial methods, such as court proceedings, and non-adversarial methods such as negotiations and mediations.
Note: Civil litigation is often referred to as commercial litigation. Commercial litigation encompasses a wide area of law including breaches of contract, employment disputes, debt collection shareholder disputes and disagreements about neighbourhood fences among other issues.
Criminal Litigation
In criminal litigation, a charge is brought against you by the Police, the State or the Commonwealth. If the Prosecution (representing the Crown) is able to prove you are guilty of committing a crime, punishment may include a fine, imprisonment and/or various other penalties. In these matters, you are always the Defendant and it becomes the responsibility of your litigation lawyer to defend your innocence.
Who is a Litigation Lawyer?
Being involved in litigious proceedings can be stressful and uncertain. However, the right lawyer will make this process as smooth as possible, whilst also fighting for an outcome that is in your interests. A litigation lawyer (also called a solicitor) is the individual who will represent, protect and assert your interests in a dispute.
What is the Purpose of a Litigation Lawyer?
The primary role of your litigation lawyer in both civil and criminal matters is to assist you in all facets of your dispute. From filing documents in Court to explaining rules of law, your lawyer is your first point of contact with the legal world. They are also your biggest ally in the resolution of your dispute.
Another key role for your lawyer is to communicate with others involved in your case. This includes to communicate with the other party’s solicitors/the police, arrange for barristers to appear on your behalf in Court and attend mediations and negotiations with intent to pursue a favourable outcome for you.
Documents in Litigation
The preparation of documents is a necessary part of every legal dispute. An essential task for your lawyer is to help you understand both:
- the purpose of these documents; and
- the time in which they must be filed in court and served on the other side
Some of these documents include:
- Statements of Claim
- Affidavits
- Defences
- Further and Better Particulars
- Discovery
- Interrogatories
Finding your Litigation Lawyer
When finding the right lawyer for you, the ideal solicitor will have relevant experience and a personality that allows you to work together in fighting for your interests.
Experience
We recommend that you research the amount of relevant experience a lawyer has before you engage them, as this will improve your quality of representation.
Costs
Litigation costs can include filing fees, application fees, valuations and reports by experts and potentially barristers’ fees. These costs are known as ‘disbursements’, and are charged in addition to the ‘fees’ you pay your lawyer to prepare and argue your case.
Etheringtons Solicitors are experienced in all facets of litigation. We can help you manage the uncertainty and stress of your legal matter. Additionally, we understand that strategy and dynamism are vital parts of responding to the challenges faced by clients involved in litigation proceedings.
To discuss your matter with one of our lawyers, please contact us on (02) 9963 9800 or at law@etheringtons.com.au.
Aug 4, 2017 | Litigation and Court
Going to court might be the most well-known means of resolving a legal dispute. However, there are other options available outside of court. These options are types of alternative dispute resolution. Each involves a different level of assistance from a third party, from facilitating discussion through to making enforceable decisions.
Why choose alternative dispute resolution instead of going to court?
The court system can be costly and time-consuming. Also, your matter will be documented on public record. While some matters inevitably end up going to trial, others have the potential to be resolved with much less hassle. Even if a trial has commenced, alternative dispute resolution can still be started. Below is an outline of some of the alternatives to court which fall under the umbrella of alternative dispute resolution (ADR).
Mediation
Mediation is when a qualified mediator facilitates a resolution between the parties. The mediator’s aim is to facilitate discussion so that the parties can come to their own agreement. They will generally outline the issues and relevant options, providing a good preliminary step in resolving a dispute.
Conciliation
Conciliation also involves a third party – the conciliator – however, they take a more active role in resolving the dispute. The conciliator can offer advice to the parties, but the parties do not have to accept it.
Arbitration
In arbitration, each party presents their arguments and evidence to the third party – the arbitrator. The arbitrator then makes a determination that is binding and enforceable between the parties. It is a private and potentially confidential determination of a dispute. Arbitration gives the most finality of the alternative dispute measures as the decision is final.
Expert Appraisal and Expert Determination
Due to the complex nature of some disputes, it can be helpful to have the assistance of an expert. In expert appraisal, an expert is chosen by the parties to investigates the issues. The expert provides advice to the parties about the facts, potential outcomes and ways of implementing them. Expert determination is similar to arbitration, however the arbitrator is an expert in the subject matter of the dispute. This can be beneficial when it comes to dealing with intricate and specialised disputes.
Early Neutral Evaluation (ENE)
ENE exists to resolve matters earlier on than with the above forms of ADR. In ENE, each party presents their arguments and evidence to a third party who makes a determination based on the broad issues involved. They also present the most efficient way to resolve the dispute. The practitioner does not determine the outcome, but can help parties to come to an effective resolution.
To discuss your legal matter including the full spectrum of options available to you, please get in touch.
