Fees: divorce/access/custody/property settlement

LAWYER’S FEES:  I have a very intense divorce and custody matter going on where my husband is being very difficult. I went to a lawyer and he said if it goes to court it will cost me $13,000 a day. That seems rather a lot of money. Can he charge me so much?

That seems to be well above the normal fee for a lawyer doing procedural divorce/access/custody litigation. But there is ‘freedom of contract’ – you can always obtain the services of another other good, competent divorce lawyer much cheaper than that, say, for some $2,000 to $3,000 per day in court. Property settlement is very important, but a lawyer can negotiate that from his office using precedents for guidance. Experience shows that what usually gives problems is where there is a dispute about access to the children of the family.  Divorce/access/custody litigants would save a great deal of money if they could accept precedents where the circumstances were similar to theirs. In other words, what I very strongly suggest – to save thousands of dollars – is to go to court with ‘consent orders’ – where there will be agreement on property, custody, access before going to court

DIRECTORS’ LIABILITY

I am a director of a small company. The two other directors borrowed money for the company when I was overseas – I did not know they borrowed money. They are now being investigated for possible fraud on the application for the loan. I was also listed as a possible defendant. Do I need to worry about this matter when I had no idea the money was being borrowed for the company?

First, Corporations Law (Australia) states that when directors are about to borrow money on behalf of a company, if they suspect that the company would not be in a position to repay the loan, they must NOT borrow that money. Now if these directors did in fact borrow the money and you can prove that you had no idea that money was being borrowed you will have a defence under Corporations Law. You will have to prove that you were overseas and that no one ever told you or implied that money was being borrowed for the company.  Including you as a potential defendant is procedural because all names of directors of the company would be on a future summons.   

Breach of promise to marry

BREACH OF PROMISE TO MARRY: I am fairly good looking 28 years old female with a reasonably good figure. My ex-fiance who I was going out with for nearly four years decided to dump me for no apparent reason. I am very hurt and feel I was regularly sexually exploited for four years. Can I sue him?

You cannot legally enforce a ‘promise’ the way you can enforce a binding contract. In the old days, Hollywood celebrities used to talk about suing some ex-fiance for damages for a breach of a ‘marriage promise’, but promises are legally NOT enforceable. A ‘promise’ does not have the same legal ingredients as a contract. If a promise had the same legal ingredients as a contract, then it would not be a ‘promise’, it would be an enforceable contract. One also has to be careful about making claims of sexual exploitation. If your partner can show there was consent by you for any sexual activities, you won’t have a case against him in this respect. In court, claims could backfire. For example, whilst you claim, perhaps rightly so, that you were regularly sexually exploited, your fiancé might be advised to make the same claim against you. The male partner could claim, “She was the one who was sexually demanding.” Who is the court going to believe? One can understand the court not being able to accept the argument from either of the parties. In civil matters, the person taking out a legal action has to prove on balance of probabilities. In these circumstances, it would not be too easy to do that.

Police search without warrant

POLICE: My boyfriend was driving home one Friday night and the police stopped him. They asked him to get out of the auto and the police searched the auto for drugs. Can the police do that without a warrant?

 

Yes, the police can do that. The police can do whatever is necessary if it is reasonable for them to suspect a crime is being committed or to prevent a crime from being committed – even entering a home without a warrant. My advice is always to co-operate with the police. Remember, the police are also there to help and protect people generally.

PERJURY

. PERJURY:  I had to make a Statutory Declaration (declaration on oath)  but I was not sure about the facts and I might have put down things which were not quite correct. Could I get into trouble?

When you have a Statutory Declaration witnessed by a Justice of the Peace/Notary Public/Attorney, you are stating on oath that what you stated in the Statutory Declaration is the truth, the whole truth. You have to understand that the oath in a Statutory Declaration is pursuant to a State law – and has the force of law the same as if you were making a statement on oath in court. The Justice of the Peace/Notary Public just witnesses your signature and usually makes sure that you are who you claim to be. But the J.P. is not responsible as to whether or not what you included in the Statutory Declaration is true or not. If it is subsequently proven that what you stated on oath is not true – i.e. it is a lie, theoretically, you could be charged with perjury with a possible jail sentence of up to five years. Even if you were a former judge or a Federal politician and if you submit a Statutory Declaration/Notary Public/Attorney about a speed camera fine which is proven false, you could go to jail for up to five years if found guilty as charged.

Assault

POLICE:  I was charged by the police for assault after an argument with a waiter outside a pub recently. How can I be charged with assault when I did not even touch the waiter?

You do not have to make physical contact with a person you are dealing with for the police to charge you with assault. You only have to raise your voice in a threatening way and, especially if you use your hands in threatening gestures, that would be enough for the police to charge you with assault. Remember, that the police have to prove beyond reasonable doubt to convict you in a court of law. This means they would need to have witnesses to support the prosecution. If there was physical contact, the police could have or would have charged you with ‘assault and battery’ –also a criminal offence which is more serious than just assault and in some cases could also mean a prison sentence, especially if someone was injured.

WILL DISPUTE

After forty years of marriage, my husband died and left the family property to me while I am alive – but then in his Will he said that when I die, the property is to go to his nephew – not to our only child. Can he do that even if the property is in his name only?

It used to be traditional for males to put the property in their own name only – not including the wife’s name on the title deed of the family home. But no, under normal circumstances your deceased husband cannot do that in. If when you first met your husband both you and your husband had no money and then saved up and eventually bought the family home, the law (Equity) in Australia says that under normal circumstances the wife would get the family home when her husband dies. There are precedents where in similar cases the Court had no problems changing the Will to give the surviving spouse the family home on freehold basis – meaning it will be hers and she can do what she likes with it.

These days a couple buying property usually put the property in both names in joint tenancy – meaning that if one of the parties dies, the property automatically goes to the surviving spouse. Of course, it is possible to purchase property in tenancy-in-common which means that one party can sell just his or her share.

DIVORCE

I’ve been having problems with my husband and we both agreed to separate. But I want a divorce because I am still young and want to establish a relationship with another man. We have two children ages 9 and 12 but I don’t trust him with the children.

In Australia divorce and family law matters are regulated by Federal law. First, the only ground for divorce in Australia is if the marriage has ‘irretrievably broken down’ – meaning that you and your husband are absolutely certain you will not be getting back together again. You have to be separated for at least twelve months. After confirmation of the divorce by the Family Court you can re-marry. If you are a Catholic, you may be able to apply for a ‘marriage annulment’ and obtain approval to re-marry.

As to the children, the law is that the biological father has a legal right to have ‘reasonable’ access to the children. The only times the father would not be allowed access to the children would be in the cases of proven cruelty, excessive alcohol or drug, pedophilia or total incompetence or something else of a substantial nature. But this would have to be a court order. Otherwise, the husband has a right to have independent access, taking the children away usually twice a week depending on the agreed access times.

PROFESSIONAL NEGLIGENCE

I’m a thirty five year old female. Some three months ago I was concerned about my left breast and I went to a (medical) doctor, who after examining me gave me a pain-killing prescription. Recently I felt strongly that I should see a second doctor about my condition. This second doctor said that I could have breast cancer and referred me immediately to a specialist for in-depth testing saying that I’d be in a much better position healthwise if I had gone to see him earlier. He was right. I have now been diagnosed with breast cancer. I am very upset and hurt about the delay. Do I have a case against the first doctor?

Of course, doctors have a professional ‘legal’ and ‘tortious’ duty of care to their patients. It would be a very serious breach for a doctor not to have diagnosed you properly, especially if you mentioned to the doctor that you felt something was wrong with your breast. If you take the doctor to court for negligence, basically – simplistically put – you have to prove the doctor had a duty of care to you, that there was a breach of that duty, that ‘injury’ was done and that the ‘injury’ was foreseeable. Because the matter is very serious and would need an in depth investigation, I strongly recommend you see a your lawyer immediately.