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Welcome to The OMB Law Board, the podcast where legal insights meet practical advice. Hosted by Simon Bennett, Managing Partner at OMB Solicitors, this show delves into what you can expect when engaging with OMB Solicitors. Specialising in property law and commercial law, OMB also boasts dedicated teams for estate planning, contested estates, body corporate matters, litigation, and family law.
Each episode features in-depth discussions led by experienced team leaders, some with over 20 years of expertise. You'll gain valuable knowledge on initial consultations, cost assessments, timelines, and the importance of clear communication and confidentiality in legal matters.
Join us to break down barriers and navigate your legal journey with confidence. Tune in for expert advice, client stories, and tips on how to prepare for your legal needs. The OMB Law Board is your trusted source for all things legal.
00:00:09:21 - 00:00:20:15
Unknown
Hi there. I'm Simon Bennett from OMB solicitors. And thank you for tuning in to this episode of the OMB Law Board. Today I've got family law partner Aleena Mills with us.
00:00:20:18 - 00:00:29:20
Unknown
Aleena, thanks so much for coming back. Thanks for having me, Simon. So excited to have you again, talking about all things family law and the drama and the stress of it all.
00:00:29:20 - 00:00:52:14
Unknown
So yes, perfectly summed up. So we've all heard friends and colleagues talk about I'm getting a divorce, I'm going to take my ex to court and I'm going to get him or something of that nature. And today we're going to talk about when's it necessary to go to court and when you don't need to go to court and you're going to walk us through that?
00:00:52:15 - 00:01:01:01
Unknown
Absolutely. And I think it's a pretty common thing for us to hear, and especially in your social circles, I'm going to take them to court. But what does that actually mean?
00:01:01:04 - 00:01:15:21
Unknown
Fantastic. So a couple of things stick around to the end because we've got a subscriber question who's asked a question of you. And secondly, I think the big ticket thing that most people want to know is what's the cost if I do go to court.
00:01:15:21 - 00:01:38:11
Unknown
So we'll deal with that as, as one of the last issues as well. So why don't we unpack that? Absolutely. So I think the first thing to start off with is why is court needed? Why do people even go to court in the first place? And there's good and bad reasons for that. There's reasonable and unreasonable answers to that question, I think, to start off with a few unreasonable.
00:01:38:11 - 00:02:10:04
Unknown
I think sometimes we get people who are quite emotionally charged when it comes to a separation and understandably, and their focus is probably more so on getting every dollar, every cent sticking it to them. You know, there's this vindication that they're looking for sometimes if there's been like an affair or something quite salacious has happened and and they can view court as a way for them to get their, I said vindication, almost vindication.
00:02:10:06 - 00:02:13:03
Unknown
So I want my day in court. Yeah, absolutely. I want my day.
00:02:13:03 - 00:02:29:01
Unknown
there's risks to that. There's dangers in taking that approach because court is not there for that purpose. Court is there to apply the legislation to your particular case and make a determination on relevant factors. It's not there to, you know, criticize someone for cheating, basically.
00:02:29:02 - 00:02:47:06
Unknown
So two things that stick out with that for me. If we just peel it back for a second. Number one, you don't necessarily need to go to court for a divorce. Is that correct? That's right. Okay. And number two, and I've always found this interesting because I know the law change in Australia, but we have a no fault jurisdiction with divorce.
00:02:47:07 - 00:03:09:14
Unknown
We definitely do. So tell me what that means. So no fault essentially means that it doesn't matter why you've separated or divorced. Doesn't matter the reason for that, it just matters that you have there has been a separation or a divorce. So in for example, a lot of our TV and our entertainment comes from America. They have different states that have at fault divorce.
00:03:09:14 - 00:03:32:17
Unknown
So if you've cheated or something like that, that is, you know, there's some kind of reward that the non cheating party gets as a result. The cheating parties penalized in Australia, there's none of that. It's completely fault free. So it doesn't really matter. It just matters that you've separated and we go from there. It's not relevant. That sounds a bit boring because I was I had visions of, you know, private detectives taking photos through the window.
00:03:32:18 - 00:03:47:24
Unknown
It can happen. Or the cheating spouse because I'm going to get more. Yes. And I've actually had clients that want to hire a pie, okay, to go and investigate those things. And they get very disappointed when I say you can, but it's not going to help. That sounds so exciting. It is exciting. It's I'm never bored, I can tell you.
00:03:48:00 - 00:04:13:20
Unknown
Okay, so we've got a vindictive ex who forces you to go to court, and you say that is one of the reasons we shouldn't be going? Absolutely. However, unfortunately, once you are in the court system, you're on a bit of a course of sort of case management. You can't really get off. Okay. The only way that a court will pause or stay your matter or there's a few ways, but they're quite rare.
00:04:13:21 - 00:04:32:10
Unknown
One of the main is that you haven't complied with your pre-action procedures, and the court might say, look, you know, you filed prematurely. You need to I'm going to stay this matter and you need to go back or reject the court application entirely. You need to go back. You need to disclose, you need to mediate and then come back to court once you've tried to resolve it.
00:04:32:11 - 00:04:54:15
Unknown
Okay. So if that's a reason you shouldn't. Why would you like what is it? What's a valid reason why we would take a fairly simple divorce process and run it through the courts? Yep. So court is what I like to describe as our last resort for separating people. And it's there because negotiations have broken down or they've failed completely.
00:04:54:17 - 00:04:59:12
Unknown
There's a few reasons for that. One could be the conduct of one or both of the parties.
00:04:59:14 - 00:05:12:10
Unknown
Let's say you split up and someone starts moving money over to a bank account in China. That's matrimonial money that's fled the jurisdiction. And now we need to seek injunctions. You can't do that until you're in court and you need an order.
00:05:12:12 - 00:05:32:17
Unknown
Risk to children is another big one. Yeah. We need the court to make orders to return children to the primary carer, things like that. And also, just generally, if you're getting ripped off in your negotiations and you don't, you know, you're being given legal advice that says, I'm entitled to X, but I'm only being offered Y and it's well below my entitlement.
00:05:32:18 - 00:05:54:23
Unknown
That's a reason to go to court as well. Okay. And where does mediation fit into that process? Well, mediation is required before court. So we must all now file evidence. So certificates of mediation before we go to our parenting applications in court to show the court that we have tried to resolve this without the court's assistance. It's not worked.
00:05:54:24 - 00:06:11:08
Unknown
And we now need the court to intervene on the matter. And I know mediation is probably a podcast topic on its own. We might come back to that. But just one quick question, because I get this a lot. If I go to mediation, can someone force me to settle it? No,
00:06:11:08 - 00:06:24:03
Unknown
no. So mediation is entirely consensual and the mediator needs to be really considered as separate to like a judicial person who makes decisions.
00:06:24:04 - 00:06:48:12
Unknown
The mediator has no decision making power on the day. They are simply there to facilitate whether an agreement can be reached. And there is absolutely no pressure on either party to agree. All right, so we're back in court. What happens what happens in court. So I think there's this common misconception that there's one and done with court. So a lot of people and when you explain it to them they're quite surprised by how big it is.
00:06:48:12 - 00:07:11:09
Unknown
But really court is a series of dates that, you know, we file our application, we turn up on day one. Day one is very procedural. It's all about what do we need. What does the court need to do to progress this case to its next stage? So there's numerous court dates that take place between then and your final hearing, which is failing everything else, failing all attempts to mediate.
00:07:11:12 - 00:07:32:19
Unknown
We need to go to a trial on this issue. And that could be a year to two years away from from the first filing date. So it's actually quite involved. And we need to carefully consider whether we need final orders. So by 150% of our property pool, that's a final order. Or whether we need to sell a house because no one can afford the repayments anymore.
00:07:32:19 - 00:07:53:02
Unknown
We're going to default on the loan. That's an interim order. And this emergency to that. When we seek interim orders, we then get into delay territory where when our delaying the resolution, the final resolution of the case because the courts now got to hear an interim issue. And that puts you off further by like six months approximately to getting a final hearing date.
00:07:53:02 - 00:08:13:04
Unknown
So you've got to be quite strategic about how what your client needs, whether it's more important to them to resolve it quickly on a final basis, or whether they're bleeding money and they can't possibly afford the mortgage anymore and they need to sell it. Yeah. So let's jump into the issue that some of our listeners have been waiting for, like, how much does this cost?
00:08:13:09 - 00:08:44:23
Unknown
Well, how do we work out costs? Yes. How is it determined? Well, I'll talk about a few types of costs, ones financial, which is probably the most interesting for everyone. We've then got the emotional toll of of litigation. Litigation fatigue is really real and it can be exhausting for litigants. And then you've got your circumstantial costs which which I see a lot of which is where people tend to sort of put their life on hold because they're in a holding pattern until the court makes a decision on their assets and their children.
00:08:45:00 - 00:09:09:24
Unknown
But the financial cost? Yes. Once you file in court, your costs are going to go up and they're going to go up pretty, pretty dramatically depending on how litigious everyone is. You can't really say from from one case to the next, but probably not uncommon to spend 50 grand around that more or less substantial. And and the significant matters which require a lot of fighting obviously will cost a lot more than that.
00:09:09:24 - 00:09:32:06
Unknown
And and barristers adding a barrister on the charge or certain experts, child experts, etc.. Yeah. The court expects people to fund their own case and that means you're probably paying, you know, minimum five and a half grand for decent barrister and upwards for just one appearance. So if we've got all of those appearances, you won't need a barrister for all of them.
00:09:32:06 - 00:09:53:21
Unknown
But for significant hearings, you're not getting out cheap, unfortunately, and you do really need to weigh up the cost of that with the unreasonable filing of court where you're fighting for every dollar. Because is that really commercial for you? So I think that's a wonderful place to leave it, because what I'm hearing is that if we can avoid it, we should.
00:09:54:01 - 00:10:05:11
Unknown
But there's going to be some cases where you just can't, and we're just going to have to knuckle down and go through the process. And it's needed for for clients protection. Yeah. Okay. Well let's jump into this subscriber question that we've been given because I think it's
00:10:05:17 - 00:10:06:19
Unknown
informative.
00:10:06:21 - 00:10:07:11
Unknown
So
00:10:07:16 - 00:10:08:12
Unknown
Elena.
00:10:08:12 - 00:10:20:00
Unknown
My partner and I have separated. We've actually reached agreement on the financial matters. Do we need a lawyer? Do we have to go to court, or can we just sort this out between us?
00:10:20:01 - 00:10:39:15
Unknown
I think if you can sort it out between you, you're doing really well. Obviously, you both probably need to go and get legal advice. So you do need to see lawyers, make sure you're not getting stiffed by each other. But to shortly answer the question, do you have to go to court if you agree? No. You can very easily document your agreement.
00:10:39:16 - 00:10:56:11
Unknown
Outside of court, you can do it via a consent order, which does actually go to court. But you don't. You're not going to any hearings. It's an administrative review of your deal and a stamping of some court orders. Or you can do it by way of a financial agreement where you're both required to get that independent legal advice anyway.
00:10:56:11 - 00:11:15:11
Unknown
But certainly you don't have to go to court if you agree. Fantastic. Well, thanks and hopefully we've answered your questions. And if you've got other questions for Aleena, please comment in the comments below. We'd love you to subscribe and review our podcast and tell us how we're doing. Thanks for listening today, and we look forward to seeing you on the next episode of the OMB Law Board.