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Australian Solicitor Reprimanded for Advising Client to “Ignore” Hearing Date

Australian Solicitor Reprimanded for Advising Client to “Ignore” Hearing Date Lawyers Weekly Reports, that in a recent Western Australia case, a Family Lawyer was publicly reprimanded by the Western Australian State Administrative Tribunal (‘WASAT’) for intentionally delaying divorce proceedings and advising his client to disregard the hearing. The Solicitor was accused of deliberately seeking to delay the divorce proceedings. Lawyers Weekly reported that in the course of acting for this Family Law client, the Solicitor did the following: assured a Registrar that he would file an Affidavit from the client and failed to do so; did not file a Notice of Acting despite being aware that the client had informed the Registrar that he would do so; and advised the client to ‘ignore’ the hearing date failed to appear at the next hearing date for the proceedings. This conduct by the Solicitor was considered by WASAT to amount to professional misconduct within the meaning of section 403 of Legal Profession Act 2008 (WA) (‘the Act’). The finding of professional misconduct was compounded by additional criticisms. The Solicitor was faulted for transferring the client's case to another firm without adequately informing the client or respecting her autonomy in choosing her own legal representation. The client also alleged that she was unaware of the Divorce Order made in August 2018, indicating a breakdown in communication and transparency. In response to these findings, WASAT imposed a public reprimand, a substantial fine of $18,000, and mandated the Solicitor to cover the Legal Services and Complaints Committee's (LSCC) costs totalling $6,000. This serves not only as punitive action but also a stark reminder of the professional obligations and ethical standards that Solicitors are expected to uphold. Under the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA) (‘Solicitors' Conduct Rules’) Solicitors have an ethical duty to act in the best interest of a client and deliver legal services competently, diligently and promptly. A Solicitor also has a paramount duty to the court and the administration of justice. A breach of these rules can constitute unsatisfactory professional conduct or professional misconduct, subjecting solicitors to disciplinary measures by regulatory authorities. Professional misconduct is defined within the Act to mean unsatisfactory professional conduct involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. Professional misconduct is therefore a more severe finding under the Act than mere unsatisfactory professional conduct and attracts higher penalties for Solicitors. The Solicitor's failure to fulfill fundamental duties, such as filing necessary documents and appearing in court, not only compromised the client's interests but also hindered the judicial process. Such lapses were deemed inconsistent with maintaining a reasonable standard of competence and diligence, constituting professional misconduct. In essence, the case underscores the critical role played by the Solicitor Conduct Rules and disciplinary bodies in safeguarding clients' interests and upholding the integrity of the legal profession and the justice system. These mechanisms serve as essential safety nets, ensuring accountability and maintaining public trust in legal practitioners. Family [...]

2024-05-23T15:11:57+10:00May 23rd, 2024|Family Law|

Understanding the Family Law Amendment Act 2023: Key Changes Effective May 6, 2024

Understanding the Family Law Amendment Act 2023: Key Changes Effective May 6, 2024 The landscape of Family Law in Australia has undergone significant reform with the commencement of the Family Law Amendment Act 2023 on May 6, 2024. These changes, aimed at ensuring the best interests of Children and promoting efficiency in family law proceedings, bring about several crucial amendments that both legal practitioners and families need to be aware of. Transition from 'Equal Shared Parental Responsibility' to 'Joint Decision Making' One of the most notable changes is the repeal of the of presumption of equal shared parental responsibility.  Equal shared parental responsibility requires that parents make joint decisions in relation to major long-term issues (such as education, religious and cultural upbringing, health, name and significant changes to living arrangements). Previously under Act there was a presumption that parents equally shared Parental Responsibility, unless the presumption is rebutted (repealed s 61DA Family Law Act (Cth) 1975). Under the amendments, the Court can no longer presume that equal shared parental responsibility is in the best interests the Child. Instead, whether equal shared parental responsibility applies, is decided according to the Child’s best interest. Parenting Orders may still deal with the allocation of responsibility for making decisions about major long term issues in relation to the Child (section 64B(3)). The amendments clarify that that if a 'joint decision making' order is made, it requires the parties to consult and make a genuine effort to agree as to long term decisions, however, there is no requirement that the decision be made jointly (s 61DAA). Under the new section 61CA, parents are now generally encouraged to consult each other about major long‑term issues in relation to the Child and in doing so are required to have regard to the best interests of the Child as the paramount consideration. Introduction of "Best Interests" Framework The Amendment Act introduces a revamped "best interests" framework which provides that when determining the parenting arrangement in the best interest of the Child, the Court now considers the following factors: Promoting the safety of the Child and all caregivers, including protection from family violence, abuse, neglect, or other harm. views expressed by the Child. developmental, psychological, emotional, and cultural needs of the Child. capacity of each caregiver to meet the Child's developmental, psychological, emotional, and cultural needs. the benefit to the Child of maintaining relationships with parents and other significant individuals, provided it is safe to do so. Taking into consideration any other relevant circumstances specific to the Child's situation. The amended framework removes the previous primary and additional consideration’s structure, which gave paramountcy to the Children benefiting from a meaningful relationship with their parents and being protected from harm. In the amended framework, the concept of a "meaningful relationship" no longer holds prominence, while a broader emphasis on the "promotion of safety" takes precedence over the need to protect the Child from physical or psychological harm. These amendments are intended to offer a more flexible approach tailored to [...]

2024-05-23T13:15:00+10:00May 23rd, 2024|Family Law|

Navigating Family Law Property Settlements: The Impact of Gambling Activities

Navigating Family Law Property Settlements: The Impact of Gambling Activities Introduction: Family law property settlements are intricate processes that involve the fair division of assets between separating parties. When one or both individuals have engaged in gambling activities during the course of their relationship, it introduces a layer of complexity to the settlement proceedings. This article explores the impact of gambling activities on family law property settlements and provides insights into how individuals can navigate these challenges. Financial Disclosure and Transparency: One of the obligations in Family Law property settlements is the requirement for full financial disclosure. According to Rule 6.06 of the Family Law Rules, parties must disclose all sources of earnings, including income from gambling. This includes detailed information about property disposals made in the period surrounding separation, ensuring transparency in the assessment of each party's financial position. Entertainment Vs Wastage- Legal Perspectives: Family law recognises that personal life activities, such as gambling, can be considered a form of entertainment. The case of De Angelis and De Angelis [1999] FamCA 1609 (FC) established that spending money on activities like gambling should not be criticised any more than spending on other forms of entertainment, such as sports. However, the impact of gambling on Family Law property settlements becomes significant when it gives rise to a wastage claim. Generally, financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally). Wastage, as defined by the landmark case of Kowaliw & Kowaliw [1981] FamCA 70, occurs where: where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or where one of the parties has acted recklessly, negligently, or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value. For example, Alex and Susan separate after 10 years of marriage. Alex and Susan are a couple of reasonable means. They earn a combined income of $190,000 per year and own several investment properties: Over the course of the relationship Susan gambles and loses $100,000. Susan has to refinance the martial home to fund her gambling habit. This conduct is likely to give rise to a wastage claim. Susan gambles recreationally on the weekends. She will put $250 in the pokies or place a $100 bet on a horse and often buys a lottery ticket. Susan wins some and loses some, but she loves the excitement of playing. This conduct is unlikely to give rise to a successful wastage claim as it does not satisfy the threshold of recklessly, negligently, or wantonly conduct. Alex is a semi-professional poker player. Alex spends his weeknight playing poker at the local casinos and weekends travelling to poker games. Alex has a separate bank account for his poker ‘side hustle’. Alex’s is sure his winnings outweigh his losses. In fact, Alex calculates that [...]

2024-02-01T14:41:19+10:00February 1st, 2024|Family Law|

10 TIPS FOR LOOKING AFTER YOUR MENTAL HEALTH DURING FAMILY LAW PROCEEDINGS

10 TIPS FOR LOOKING AFTER YOUR MENTAL HEALTH DURING FAMILY LAW PROCEEDINGS It is well known that family law proceedings are incredibly stressful for all parties involved. Particularly for parties to parenting and/or property matters, court proceedings are emotionally draining and incredibly stressful. The legal complexities and personal dynamics involved in matters such as divorce, care arrangements for children, and property settlement can take a toll on your mental health. Taking proactive steps to care for your well-being during this process is crucial. Here are 10 tips to help you navigate family law proceedings while safeguarding your mental health. Establish a Support System: Surround yourself with a network of friends and family who can offer understanding, encouragement, and a listening ear. Sharing your thoughts and feelings with trusted individuals can help alleviate stress and provide a sense of connection. If you can, speak with someone who has gone through family law proceedings before and can empathise with your experience. Set Realistic Expectations: Family law proceedings can be unpredictable. Set realistic expectations for the process and outcomes, understanding that it may take time to reach a resolution. Ask your Family Lawyer to give you realistic advice of what to expect in terms of time frames and potential final outcomes. Be patient and focus on managing your expectations to reduce unnecessary stress. Don’t hesitate to ask you Family Lawyer questions if you are feeling unsure. Practice Self-Care and Mindfulness: Prioritise self-care activities that promote physical and mental well-being. This includes regular exercise, a balanced diet, sufficient sleep, and activities you enjoy. Taking care of your overall health can enhance your ability to cope with the challenges of family law proceedings. Incorporate mindfulness and relaxation techniques into your routine to manage stress and anxiety. Practices such as meditation, deep breathing, or yoga can help you stay grounded and focused during emotionally charged situations. Stay Informed, but Avoid Overexposure: Stay informed about the legal aspects of your case but be mindful of not obsessing over every detail. Set designated times to review updates and respond to your Lawyer. Try to avoid constant exposure to legal matters to prevent unnecessary anxiety. Seek Professional Support: If you are struggling, consider consulting with a mental health professional, such as a therapist or counsellor, to provide emotional support and coping strategies. Even just a couple of sessions with a mental health professional may help institute effective coping strategies for the duration of your family law matter. Maintain Clear Communication: Open and clear communication is essential during family law proceedings. Establish appropriate and healthy communication channels with your Family Lawyer, ex-partner (if necessary), and any involved parties. This can help prevent misunderstandings and unnecessary conflicts. If you are still in contact with your ex-partner or their family members (for example for co-parenting or business purposes) your Family Lawyer may be able to assist you in establishing healthy communication. Reaching out to your Family Lawyer for assistance on if or how to respond can help prevent avoid emotionally charged [...]

2024-01-16T10:56:29+10:00January 16th, 2024|Family Law|

Untying the Knot: Navigating Divorce and Separation Amidst Rising Costs

Untying the Knot: Navigating Divorce and Separation Amidst Rising Costs In an era characterized by escalating living costs and housing crises, the financial toll of divorce or separation in Australia has taken on new significance. Couples are grappling with the reality that parting ways might not just cost them emotionally, but financially as well. As a result, a growing trend has emerged: couples who choose to remain living together despite their decision to separate. This article delves into the dynamics of this unique situation and provides guidance on how to mitigate family law costs during divorce or separation. As divorce rates continue to be a significant aspect of contemporary society, understanding the factors that influence the cost of divorce in Australia is crucial. The insights provided by The Guardian's article shed light on the complexities of divorce expenses, ranging from legal fees to court charges and property division. While divorce is undoubtedly an emotionally challenging process, being aware of the financial aspects and potential avenues for cost reduction can help individuals navigate this challenging chapter with greater clarity and preparedness. Whether opting for legal representation or pursuing alternative dispute resolution methods, individuals can approach divorce proceedings with a better understanding of the potential financial implications. Tips to Keep Your Family Law Costs Down Communication and Mediation: Open dialogue and effective communication can lead to better negotiation outcomes, potentially avoiding costly court battles. Mediation provides a platform for couples to collaborate on decisions related to property division, child custody, and financial arrangements. Consulting Professionals: Seeking advice from family law attorneys and financial advisors can help couples understand their legal rights, obligations, and potential financial impacts. Their expertise can lead to more informed decisions, potentially saving both time and money. Alternative Dispute Resolution: Collaborative divorce, arbitration, and other alternative dispute resolution methods can streamline the separation process, reducing legal fees and court expenses. Agreeable Settlements: Striving for mutually acceptable settlements can alleviate the need for protracted legal proceedings. Couples can explore fair compromises that address the interests of both parties. Documentation: Organizing and providing accurate financial documentation, including assets, debts, and income, can expedite the legal process and prevent unnecessary disputes. Balance Sheet of Assets and Debts: Compile a comprehensive list of assets, such as property, vehicles, investments, and debts, including mortgages, loans, and credit card balances. Financial Support: Determine child support and spousal maintenance arrangements in accordance with Australian family law guidelines. Ensuring financial stability for both parties is crucial. Property Division: Evaluate property ownership, mortgages, and equity distribution. Seek legal advice to understand the most equitable approach to dividing marital assets. The most importance part of Property Division is realising and setting both achievable and manageable expectations when it comes to possible divisions of an overall property pool. Parenting Arrangements: Establish clear and practical arrangements for child custody, visitation, and support. Focusing on the children's best interest’s in this respect is paramount. Updating Legal Documents: Revise wills, beneficiary designations, and other legal documents that may require amendments due to [...]

2023-08-24T15:19:40+10:00August 24th, 2023|Family Law|

Woman Forced to Give Jacktpot to Husband in Divorce

Navigating Lotto Winnings and Divorce: A Comprehensive Guide In a twist of fate, winning the lottery can be both a dream come true and a life-altering event. But what happens when you win the lottery after a divorce or de facto separation? And how are family contributions, windfalls, and lottery gains treated during property settlement proceedings? News.com.au reports that a woman in California was ordered by the Court to give her ex-husband the entirety of her lottery winnings after failing to disclose the windfall in her property settlement. In 1996, after 25 years of Marriage to Mr Thomas Rossie, Mrs Denise Rossi won $3.1 million US dollars ($4.6 million AUS dollars) the lottery and eleven days later filed for divorce. Denise did not mention the winnings to her ex-husband and failed to disclose the windfall of $3.1 million in their property settlement. Two years following the property settlement, Mr Rossie came to know of his ex-wife’s lottery winnings and obtained a Court ordered injunction. Mr Rossie filed in Court and successfully obtained an order that Denise pay her ex husband the entirely of her winnings back in instalments. In this article, we will explore these questions and provide you with insights on handling lottery winnings during or after divorce. Q: What Happens if I Win the Lottery after Separation from my Spouse or Defacto Partner - How Do Family Law Property Proceedings Actually Work Winning the lottery can be an exhilarating experience, but it may also bring about complications, especially if you are going through a family law property settlement. 1. Do I Have a Duty to Disclose My Lottery Winnings? Similar to the US, parties to a property settlement in Australia have an obligation to make full and frank financial disclosure.[1] This generally includes bank statements, pay slips, tax returns and disclosure of any windfalls. A consequence of non-disclosure during proceedings, the party who fails to disclosure documents may be held guilty of contempt for not disclosing the document and may be ordered to pay the other party’s costs.[2] Further, the Court the Court may stay or dismiss all or part of a party’s case who fails to disclose documents.[3] 2. How are Family Contributions during the Relationship Important? During marital or de facto separation proceedings, Courts will often consider the contributions made by each spouse or partner to the family during the relationship.[4] This includes both financial contributions, such as income earned, as well as non-financial contributions, such as caring for the home or raising children.[5] Timing is of particular importance to a determination of contributions.[6] Contributions made at the beginning are typically given less weight than contributions made towards the end of the relationship.[7] In addition to contributions of parties to the relationship, a Court must also be satisfied that an Order is just and equitable.[8] Q: How are Windfalls, and Lottery Gains treated in Family Law Property Proceedings – What Does It All Mean? 1. Q: What if I Win Big Before Separation? A windfall gain [...]

2023-08-11T12:41:26+10:00August 11th, 2023|Family Law, Litigation, Wills & Estates|

Friends with Benefits Inherit

Friends with Benefits to Inherit We’ve all seen a movie like ‘No Strings Attached’ starring Natalie Portman and Ashton Kutcher, where friends try to have their cake and eat it by extending their relationship to the bedroom while trying to let feelings interfere with the friendship.  As it is in real life, casual relationships or ‘friends with benefits’ can become messy socially, but not many people think about the legal ramifications that can play out. In this article, we will look at what happens when a friend who was receiving ‘physical benefits’ does not benefit financially from their lover’s estate when they die under a Will. Challenging An Estate When it comes to inheriting property upon the death of a loved one, the relevant legislation in Queensland entitles a family member or spouse to make a claim for a distribution from the estate if the Will gives them less than they believe that they deserve or if they are left out entirely. The legislation also grants de facto partners the same inheritance rights as legally married couples, with the ‘de facto’ meaning a relationship between two people, from either the same or opposite sex, which lasts for a period of two years or more and being up until the deceased’s death. However, does a ‘friends with benefits’ relationship qualify as a de facto relationship, thus allowing the surviving ‘friend’ to make a claim against their lover’s estate? What the court will consider? The Courts have had a few opportunity to consider this modern type of relationship and have largely interpreted them on a case-by-case basis.  Nevertheless, when presented with this question, the court will consider among other things: the length of the relationship; the nature and extent of common residence; and whether there was or had been a sexual relationship. Recent Cases Interestingly, the NSW Supreme Court was recently tasked with considering a family provision application based on a ‘friends with benefits’ relationship in the recent case of Estate of Zaheer. In this case, the presiding judge, Justice Hallen, concluded that ‘friends with benefits’ meant “a friend with whom one has an occasional and non-committal sexual relationship”.  However, the crux of the dispute came down to the question of whether the friends with benefits relationship could also be interpreted at the higher threshold of a de facto relationship.  In the end, Justice Hallen ruled that the applicant should receive 15 percent of the deceased’s estate on the basis that the friends with benefits relationship had certain aspects of a de facto relationship arrangement, namely the fact it lasted up until the deceased’s death. In another case, the Estate of HRA deceased, the Court made similar interpretations with the key takeaway being just how important it is that relationship lasted up until the death of the deceased person – though it did not have to be physical up until the death.  However, in this matter, this could not be established after it was found that the last real contact the [...]

2023-08-03T13:32:04+10:00August 3rd, 2023|Family Law, Wills & Estates|

Divorce Lawyer shares Opinion on Common Reason Working Parents Divorce

A leading US divorce lawyer has lifted the lid on why he thinks many couples hit the rocks when they becoming working parents - saying men simply don't pull their weight when they're at home. He says couples who both have pressurised jobs - and children to care for - often see their relationships fall apart because women are still expected to take on many of the domestic duties. Family Law Professional Family law is a highly emotional and complex area of law where families navigate through parenting, property and relationships disputes.​ During these times, you need a competent and experienced family law lawyers who understands what you are going through, thinks carefully and proactively on your behalf and knows how to represent you for the best possible outcome.​ If you want to understand your rights, contact Salerno Law and discover why we are Gold Coast’s best family lawyers. TODAY provides the following NO 1 REASON WHY WORKING PARENTS ARE CALLING IT QUITS

2023-05-17T11:54:35+10:00May 17th, 2023|Family Law|

My X is Delaying Property Settlement – How to avoid and what to do

My X is Delaying Property Settlement | How to avoid and what to do... Separating from your partner is a difficult task which often carries significant heartbreak and emotional stresses. Dealing with these tensions whilst navigating the difficulties involved in a property settlement is by no means a simple task. A significant contributor to the stresses involved is a delay to the property settlement, which involves the division of the parties assets. Assets include property, money, furniture, superannuation, stocks & cryptocurrencies, etc. There is a multitude of reasons why a property settlement can be delayed, which often has negative implications emotionally and financially to both parties. Reasons for delay in property settlement may include: • parties failing to agree on a settlement; • parties failing to provide financial disclosure; • parties disputing the value of an asset; • parties disagreeing on contributions; • parties attempting to hide assets; • parties refusing to enter negotiations; and • parties failing to participate in the process entirely. Unrepresented parties may find it difficult to navigate the complexities of family law and property settlement. Even where parties agree to the distribution of their assets in a property settlement, separated parties should finalise their property settlement by way of Financial Agreement or Consent Orders. Parties who do not finalise their property settlement run the risk of having their ex-partner renegotiating a new property settlement or filing an application in the Federal Circuit and Family Court of Australia for property orders. How to accelerate your property settlement: Without representation, parties often don’t appreciate the difficulties involved in progressing and finalising their property settlements. The following can be done to expedite a property settlement: • Advise your ex-partner that you intend on finalising the property matters and invite them to propose what they believe to be a just and equitable property division • Negotiate • Undertake mediation • Obtain legal advice from a family lawyer • File an Application in the Federal Circuit and Family Court of Australia (must file within 12 months from the date of your divorce or 24 months from the date of separation for de facto cases. Whether it be by agreement or court ordered, Salerno Law’s family lawyer are experienced in all aspects of property settlements. During these times, you need a competent and experienced family law lawyers who understands what you are going through, thinks carefully and proactively on your behalf and knows how to represent you for the best possible outcome. If you want to understand your rights, contact Salerno Law and discover why we are Gold Coast’s best family lawyers. Tyrone Boucher - Salerno Law

2023-02-02T12:43:42+10:00January 25th, 2023|Family Law|

How long do you have to be separated before filing for divorce?

In Australia, you must satisfy the threshold provided under Part VI of the Family Law Act 1975 to file an Application for Divorce in the Federal Circuit and Family Court of Australia. That being, that: - The marriage has irretrievably broken down and that the court is satisfied that there is no reasonable likelihood of cohabitation; and - That you have been separated for a minimum of 12 months. An Application for Divorce can be filed at any time following the relevant 12-month time limit. What if we were separated, but still living under the same roof? If you were separated and living apart under the same roof, an affidavit must be provided in support of the Application providing details of the living situation and evidence as to how the parties had separated (i.e living in separate rooms, separating finances, etc.). A supporting affidavit should also be provided from a friend or family member who was aware of your separation and living situation. If the Court is not satisfied that you have been separated for 12 months, they may withdraw your Application for Divorce. How to file an Application for Divorce An Application for Divorce can be filed: - Solely; or - Jointly with your husband/wife. If a Sole Application is filed, the sealed copy (stamped by the court), must be personally served upon your husband/wife at least 28 days prior to the court event, or to their lawyers if represented. If a Joint Application is filed, an Affidavit of eFIling must be signed by both parties and filed with the court. An Application for Divorce requires your Marriage Certificate and details of any other orders made in relation to property or children matters and a filing fee is applicable. Responding/Objecting to a Divorce The only grounds to file a Response to a Divorce Application are: - That you have not been separated for at least 12 months; and - That the Federal Circuit and Family Court of Australia does not have jurisdiction to grant a divorce (i.e married overseas, etc.). Time Limits Once an Order for Divorce is granted by the Federal Circuit and Family Court of Australia, parties have 12 months (exceptions may apply) to bring an Application for Property Orders to court. Prior to filing for Divorce, parties should obtain legal advice from a family lawyer as to what relevant time limits should be considered. During these times, you need a competent and experienced family law lawyers who understands what you are going through, thinks carefully and proactively on your behalf and knows how to represent you for the best possible outcome. If you want to understand your rights, contact Salerno Law and discover why we are Gold Coast’s best family lawyers. Tyrone Boucher - Salerno Law

2023-02-08T16:44:43+10:00January 25th, 2023|Family Law|
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