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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5357
Experience:  Dip Law LPAB - Sydney based lawyer
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I'm very unhappy with my family law trial, the decision is

Customer Question

I'm very unhappy with my family law trial, the decision is now pending but my barrister and solicitor did not do as I asked. Did not contest evidence that I had proof for. Disregarded my instructions
What can I do ?
Lee
Submitted: 8 months ago.
Category: Australia Law
Expert:  Patrick H. replied 8 months ago.

Can you elaborate on what your case was about and what evidence you wanted to use, but your lawyers didn't, and why you thought it was important?

Customer: replied 8 months ago.
It was a family law case regarding settlement. It was a few things
. Many orders were imposed prior to trial that my former husband did not abide by but was not mentioned
. We both have families with money that have been generous but his barrister made statements that were untrue and made it appear that his family had contributed a greater amount which is not true yet mine did not clarify.
. My former husband lied a lot and I had evidence to show he was, which I felt went to his character but again did not use it.
My former husband didn't work very much and throughout our 17 years married her earnt from his own earning over that entire time $52,000 compared with my earning of $970,000 . I started a trust that I solely own but made my former husband a beneficary to distribute funds to him to reduce our taxable income . His barrister on my cross examination had me read out from my tax returns my spouse taxable income, which of course was not his earnings yet my barrister did redirect after wards for clarification. He had information in the summation that was incorrect as did his barrister but it was wrong and even though I showed mine his error he did not clarify the error. My former husband said his low earnings were from injuries, which he did have some but he was always able to travel to Canada each year for 50 days from 2000 to snowboard. We bought a condo in Canada in 2010 knowing that he had to work for us to keep it. Instead he spent 294. Days there's 150 of them alone in 3 years 3 months yet my barrister did not mention that
Etc
Expert:  Patrick H. replied 8 months ago.

Most of your concerns, whilst understandable, address issues which Australian courts do not concern themselves with in the context of family law property settlements. Matters which go to his character stopped being relevant to family law proceedings regarding property settlements a long time ago (1975 or thereabouts) when we became a no fault divorce country. This means that matters that go to his character or slurs in his testimony against you are of no relevance to the court and your barrister and solicitor both owe a duty to the court not to waste the court's time dealing with such matters (indeed if the court feels they have raised numerous irrelevant matters, even if at their client's instruction, they can be subject to disciplinary proceedings). Undoubtedly that will appear to you to be grossly unfair, especially if your ex has presented you in a bad light, but even if he has that should not have altered the court's decision. The reason this no fault approach to divorce has been adopted is that before these laws, law suits would turn into long exchanges of slander between the parties, that were usually impossible for the court to work out and which only deepened the ill feeling between the parties, which is particularly unhelpful if there are young children involved and the parties will still need to deal with one another going forward.

Under our no fault system, all the court is interested in is the relative contributions of the parties to the relationship, which does include considerations of relative income, contributions from your respective families, if parents have helped out, and how much there is in the way of assets. In a long marriage such as yours, the court will primarily be interested in simply knowing the extent of the property and if there were any special factors, such as children who still need to be cared for which would justify a significant adjustment. In long marriages, income contributions throughout the relationship are generally given little weight since the courts generally assume that a party who was earning less or working less likely made up for it in other non financial ways and so generally treat the parties financial and non financial contributions as roughly equal throughout the course of the relationship, even if one party has contributed far more financially.

Also, if you entered into tax arrangements so as to effectively income split with the result that your taxable income was relatively even, the court will look at the taxable income not the actual earnings, since the court will have little sympathy with a party who argues income is this for tax purposes but that for divorce purposes, and the court is unlikely to be very interested in the fact your husband had long holidays for snowboarding, though it may have been relevant to any assertion by your husband's council that he needed a greater share to account for his injured state.

If you are not satisfied that the above account explains the failure of your barrister and solicitor to raise certain issues it may be possible to appeal the decision in some circumstances and/or refer the matter to their respective disciplinary bodies, however, barrister's have considerable leeway in the way they present their case and the evidence they call, and unless the evidence they failed to produce was glaringly necessary for your case, succeeding in such an application will be difficult and you will need to engage new lawyers ASAP to assess your case.

Strict time limits apply for lodging appeals so assuming this has only just happened do not delay in obtaining a lawyer to review your case in detail to assess the importance of any evidence that was not presented.

To lodge a complaint about your solicitor or barrister: https://www.lsc.qld.gov.au/complaints

I trust the above assists your understanding.

Good luck and PLEASE RATE MY ANSWER.

Patrick

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