Family law clients are often preoccupied and in emotional distress, they require particular care. It is an area where simple risk management steps can make a difference. This LPLC Practice Risk Guide examines the most common family law claims we have seen over recent policy years and provides a practical checklist to help you minimise the risk of receiving a claim.
As family law clients are often preoccupied and in emotional distress, they require particular care. The scope of the retainer needs to be carefully defined and documented. Advice and instructions also need to be clearly documented. The client needs to be kept informed about the progress of the matter particularly in relation to the costs. These simple risk management steps can make a difference.
Family law claims generally account for less than 10 per cent of claims by number and less than 5 per cent by cost. While a relatively small area of claims family law is one of the largest areas of complaints to the Victorian Legal Services Board and Commissioner. The underlying causes of complaints and claims are very similar.
This guide covers the 10 most common mistakes LPLC sees in family law claims:
Real claims examples are given along with commentary on why they occur, and recommendations for what to do to avoid them.
Our key risk checklists are included for download in the appropriate sections.
Financial agreements under Part VIIIA and Part VIIIAB of the Family Law Act 1975 (Cwlth) (the Act) pose a liability risk for the practitioners who draft or certify them.
Any practitioner acting in this area needs to have a comprehensive understanding of the relevant provisions and to follow the current cases in this area. A list of current cases as at August 2020 is included on this page. However, the law in this area changes frequently so the list should not be considered final.
In most cases the agreements purport to exclude the jurisdiction of the Family Court and necessarily are complex documents that need to cover many contingencies. These agreements should only be drawn by practitioners with extensive experience and expertise in family law. Likewise, to advise a client on a financial agreement as required by section 90G or section 90UJ of the Act, practitioners need to have experience and expertise in family law.
Drafting errors occur in financial agreements entered into both before and after the commencement of a de facto relationship or marriage. The types of drafting errors we see for financial agreements are discussed in more detail under ‘Drafting errors’ in this guide but below are some general comments.
Drafting agreements pursuant to section 90B of the Act, otherwise colloquially known as ‘prenuptial agreements’, are fraught with difficulty and carry higher risk because they necessarily involve considering and/or dealing with the future entitlements to property and maintenance. They need to take account of many variables. The risks involved in drawing these agreements are highlighted by sections 90K and 90UM of the Act which provides that the agreement can be set aside for a variety of reasons including a material change in circumstances.
The most common mistake we have seen in prenuptial agreement claims is the failure to take into account future children. Practitioners drawing these agreements need to obtain as much information as possible from their clients and discuss with them many possibilities for the future when considering the agreements’ content.
The parties who give instructions for the agreement to be drawn are usually the ones who have the most to gain from the agreement and are most keen for the agreement to be signed. Practitioners should advise these clients of the impact duress may have on the enforceability of the agreement. Insisting that an agreement be signed shortly before a wedding in circumstances where the other party feels they have no choice may result in the agreement being set aside later (See Thorne v Kennedy, 2017]). This is particularly problematic where one party’s visa status in Australia is uncertain if the marriage does not proceed. Clients need to have clear written advice about this issue.
Advising on agreements
Practitioners asked to advise on financial agreements and sign the certificate/statement under section 90G or section 90UJ need to understand what is required of them. In recent years, we have had several claims where the practitioner advising the financially weaker party has not been a family lawyer and has mistakenly thought all they were required to do is advise on the contents of the agreement.
The test in section 90G or section 90UJ is much more than that. It is to give independent legal advice on:
- the effect of the agreement on the rights of the party
- the advantages and disadvantages, at the time that the advice was provided to the party, of making the agreement.
The courts have said that this means giving the client advice about what rights they would have under the Act that they are giving up. Only experienced family law practitioners should be giving this advice as it requires a comprehensive understanding of the Act and case law of the Family Law Courts.
It is particularly difficult to give this advice for prenuptial agreements, even for experienced family law practitioners, as there are many unknowns, including:
- when the marriage will break down
- what assets will be accumulated during the marriage and who will have contributed to them
- whether there will be children of the marriage and how many.
In most cases LPLC recommends that practitioners don’t advise on pre-nuptial agreements. Where practitioners do act, clients need to be given clear written advice that the agreement may never be binding as well as advice about the advantages and disadvantages of entering the agreement.
What is clear from the cases is that practitioners, if challenged as to the adequacy of their advice, are required to provide detail of the advice given (See Renard v Geach  FCCA 617). Practitioners often find it difficult to recall the detail of the advice they gave many years earlier. In the absence of written contemporaneous file notes and letters of advice, the courts are often unwilling to accept that adequate advice was given.
Only experienced family lawyers should give independent legal advice on financial agreements and even they should think very carefully about whether to advise on prenuptial agreements. They must keep contemporaneous file notes of the advice they gave and confirm that advice in writing. It is not enough to rely on the fact that a certificate was signed as evidence of the sufficiency of the advice given.
Prior to section 90G(1A), which came into operation on 4 January 2010, the court generally took a strict view of the requirements of the Act relating to upholding financial agreements (See Black v Black  FamCAFC 7). Section 90G(1A) requires the court to uphold an agreement if satisfied that it would be unjust and inequitable not to do so. While this gives some relief for things like referring to the wrong sections in the agreement, it may not go so far as to cure inadequacies in the advice given. The Statement of Independent Legal Advice is prima facie evidence of compliance with the requirements of sections 90G or 90UJ to give legal advice, but if there is evidence to support the court doing so, the court is able to look behind the statements.
Child support is a difficult area governed by the overlapping provisions of the Family Law Act) and the Child Support (Assessment) Act 1989 (Cwlth). Claims arise when practitioners fail to grapple with the complexities and/or fail to manage the client's expectations relating to the degree of finality that can be achieved.
Common problems with child support agreements include:
- unclear drafting with the result that one party later contends the child support agreement did not operate as intended
- not applying for acceptance of a child support agreement by the Department of Health & Human Services – Child Support
- not spelling out in the child support agreement that a share of property transferred as part of the property settlement is to be credited against periodic child support obligations
- not advising the client that a child support agreement, even a binding child support agreement, is never final and is always subject to change if there is a change in circumstances of one of the parties.
Drafting errors occur in consent orders, financial agreements and child support agreements.
The mistakes arise from:
- typographical errors, oversights or ambiguous wording coupled with failing to proofread or road test the document to ensure it says what was intended
- a lack of legal knowledge about what was required, especially for financial agreements, to ensure the agreements were binding
- failing to achieve what the client intended, either because the practitioner misunderstood the client or because there was inadequate communication with the client about what could be achieved.
Types of mistakes include:
- failing to allocate assets to the right person
- incorrect wording or formulae for apportionment of assets between parties
- using the wrong wording for financial agreements, especially reference to the wrong sections of the Act or the wrong legal advice requirement (these have changed several times)
- failing to state who pays tax or capital gains tax (CGT)
- failing to include maintenance in financial agreements
- failing to comply with the requirements of the Act to contract out of maintenance (sections 90E and 90F or 90UI and 90UJ)
- failing to spell out in the child support agreement that a share of property transferred as part of the property settlement was to be credited against periodic child support obligations.
The client gave his practitioner a spreadsheet of how the assets were to be divided between the parties. The spreadsheet showed a specific managed investment fund was to be transferred to him. The initial draft of the financial agreement did not refer to the fund and no one picked up the error despite there being four further drafts.
The orders provided that the client was to take title to the family home and the former spouse was to continue to pay one of several mortgages. The orders were not specific about the amount to be paid and when; nor did they take into account how the liability was to be treated in the event that the client decided to sell the house. The house was sold and the former spouse stopped making payments.
The client was to receive an unencumbered interest in the matrimonial home. The orders provided that if the former spouse could not discharge the mortgage over the matrimonial home, all nominated properties would be sold and the proceeds divided 60/40 in the client's favour. A dispute arose as to whether the matrimonial home was one of the nominated properties to be sold and there was no order requiring the former spouse to discharge the mortgage from the proceeds of sale of the nominated properties. The former spouse sold property but did not seek to discharge the mortgage of the matrimonial property, forcing the client to discharge the mortgage from her share of the sale proceeds.
The client was to receive a property owned by the former spouse's company. The client was concerned about stamp duty. They were advised that no stamp duty would be payable as the company would transfer the property to the former spouse who would then transfer it to the client as part of the property settlement. The orders stated that the former spouse 'do all things necessary to transfer' the property. The former spouse refused to have the property transferred into his name and arranged for the company to transfer the property to the client, making her liable to pay stamp duty.
Consent orders provided that the former spouse was to transfer her interest in the family business to the client and the client was to indemnify the former spouse for all liabilities of the family business. The orders also provided that the main asset of the family business was to be sold and the proceeds divided between the parties. The practitioner did not turn her mind to the fact that the sale attracted CGT for which the client, under the terms of the consent orders, was solely responsible to pay.
At an interim hearing the court ordered the husband to pay the wife's $20,000 CGT liability. A court note on the orders stated that 'this payment be taken into account as part of the property pool in any final settlement'. At a later hearing, the same practitioner acted for the husband. After protracted negotiations, the parties signed consent orders for a final property settlement. However, the orders were silent as to whether final payment from husband to wife included the $20,000 already paid by him in CGT liability. The practitioner forgot to ensure that the consent orders reflected the interim tax payment already made.
Consent orders provided that the husband would pay the wife half of her share of the property settlement immediately and the balance by yearly instalments. The husband defaulted on the instalments, sold the family farm and declared himself bankrupt. The consent orders had made inadequate provision for securing the husband's ongoing liability. An additional problem in this claim was the practitioner's failure to advise the wife to lodge a caveat over the property.
This category of mistakes usually relates to the advice given about financial agreements.
As discussed under the financial agreement section there are two issues:
- The practitioner failed to give the advice required by section 90G or section 90UJ of the Act, that is ‘... the effect of the agreement on the rights of the party and the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement’.
- The practitioner failed to keep adequate file notes of the advice they gave and failed to confirm that advice in writing. When later challenged in court there was no written evidence to assist or support the practitioner's recall in the face of the client alleging no or inadequate advice was given.
The husband was referred to his practitioner by the wife’s practitioner. The husband’s practitioner met the husband at the wife’s practitioner’s office and gave advice about the financial agreement to the husband before the parties signed the agreement. The husband’s practitioner had no file notes of the advice given, just ticks next to each clause on a draft copy of the agreement.
The husband later alleged he received inadequate advice about the advantages and disadvantages of entering the agreement. His practitioner was unable to recall what advice he gave other than he went through each clause and discussed its meaning.
These types of claims usually arise when the practitioner relies on the client's instructions and fails to investigate the client's circumstances or conduct adequate searches. They can also arise where the practitioner assumes the client understands an issue or thinks the issue, such as ongoing tax liabilities, is not part of the retainer. If there is potential for a CGT liability or an income tax liability arising, encourage the client to seek tax advice. A client may not be aware, for example, that CGT rollover relief for part or all of the principal residence may be lost if the parties are living separately.
The client took a transfer of an investment property under the property settlement and paid his wife an amount of money. The transfer received rollover relief in relation to CGT under the marriage breakdown provisions. The client later complained that he was not advised he would be liable for CGT when he eventually disposed of the property and if he had known he would have paid his wife less in the settlement.
The consent orders provided that the former spouse indemnify the client for any partnership debts and remove her as a guarantor of the loans of the partnership. The practitioner failed to ascertain that the client was a co-borrower rather than a guarantor on business loans. Although the client had an indemnity from the former spouse, she nonetheless remained primarily liable for the loans.
A settlement was reached whereby the client received the matrimonial home and assumed responsibility for mortgage payments and the former spouse took over the family business. The practitioner relied on instructions from the client that there was only one mortgage on the matrimonial home and did not conduct a title search which would have revealed that there was a second mortgage. When the existence of the second mortgage was discovered, the former spouse was asked to discharge it and refused, leaving the client with the additional liability.
Once a major source of claims, we have seen considerably fewer of these claims in recent years. The claims now most commonly arise from a failure to lodge a caveat over the former spouse’s property or to respond to a notice to remove the caveat.
There are a number of other circumstances where this arises.
- There is confusion about the extent of the retainer. The practitioner is initially approached to deal with matters relating to children. Once resolved, everyone's attention then shifts to the property issues, by which time the former spouse has dissipated assets. The client alleges the practitioner failed to take steps to protect the assets such as lodging caveats over property and the practitioner denies being retained to handle the property settlement.
- File notes are not made or written confirmation is not sent in respect of advice regarding the need to make a property application.
- The client delays in making a decision to take action. In the meantime, the former spouse has dissipated the assets. The client blames the practitioner for the delay or alleges that no advice was given.
- The mortgagee of property in the name of the former spouse is not notified of the client's interest and further funds are advanced to the former spouse, which are dissipated, reducing the equity in the property.
Where the property is in the name of the former spouse and represents a significant asset of the marriage:
We have seen a surge in superannuation related claims in the last few years.
Some recent claims relate to orders that were made before amendments to Part VIIIB of the Act and involve drafting mistakes in orders. The other claims relate to a failure or delay in serving sealed orders on the trustee of the superannuation fund, resulting in the other spouse removing funds they were not entitled to.
Pensions in the payment phase are particularly difficult to advise on. This may be an area where claims become more common. Be aware of the recent cases of Surridge & Surridge  FamCAFC 10 and Campbell v Superannuation Complaints Tribunal  FCA 808.
For more information on superannuation splitting under Part VIIIB, see Appendix One.
Final orders were agreed by the parties and involved the wife receiving an entitlement to half of the husband’s superannuation. The orders required the wife’s practitioner serve a sealed copy of the orders on the superannuation trustee. Inexplicably this was overlooked. Three and a half years later when the wife sought to recover the superannuation after hearing that the husband retired, she discovered that the husband had withdrawn all the funds.
Delay in lodging applications, orders or agreements is a common error in family law.
Like in any litigation, the delay in lodging applications can have significant impact on the rights of the parties. It usually occurs when a practitioner fails to tell their client of the time limits to bring proceedings, most commonly for de facto property disputes where there is only two years from separation. The client then takes too long to decide what to do and instruct their lawyer.
The delay in lodging orders or child support agreements often occur due to oversight or improper systems in the office, especially where orders are returned requiring amendment.
The client sought advice about property settlement after separating from his de facto partner. Initially the practitioner lodged caveats on the client’s behalf but then didn’t hear from him for over two years. By this time, it was too late to issue proceedings as de facto property proceedings must be issued within two years of separation. The client alleged the practitioner never advised him of this limitation timeframe.
The husband and wife signed a child support agreement drafted by the wife’s practitioner, after the parties themselves had agreed the terms. The agreement was lodged with the child support agency (CSA) (now Child Support Services Australia) by the wife’s practitioner.
The CSA returned the agreement to the wife’s practitioner and advised that the agreement could not be registered as the parties’ obligations were unclear. The practitioner handling the matter attempted to contact the CSA and left various messages before going on leave. While another practitioner in the office did speak to a CSA representative, the matter ultimately went nowhere.
When the wife sought to enforce the orders, the husband refused, and the failure to register the agreement came to light. The husband refused to negotiate on clearer orders.
In recent years, these claims have involved the failure to obtain valuations of businesses.
They often arise in the following circumstances:
- The practitioner recommends a valuation be obtained but the client says they cannot afford to obtain a valuation or do not want to ‘rock the boat’ and simply accepts the value suggested by the former spouse.
- The practitioner simply does not discuss the issue of a valuation or considers it to be unnecessary, particularly where financial statements are available for businesses.
- The practitioner is consulted at the last minute by a formerly unrepresented party for independent advice on a proposed property settlement and the client insists a valuation is unnecessary.
When family law practitioners sue for costs, they often find the client's response is to issue a counterclaim alleging negligence on the practitioner's part.
Counterclaims may be cynically considered as a client's attempt to avoid paying the bill but can sometimes reflect the client's dissatisfaction with the way they have been treated by the practitioner. Typically, the counterclaims reflect a breakdown in communication between practitioner and client. Some clients feel they have not been kept informed, or not treated with respect or courtesy.
Clear and regular communication throughout the conduct of the matter with clients goes a long way toward managing the client's expectations about the outcome and the cost. This can minimise the risk of a disgruntled client making a claim against you.
It is always worth reviewing the file before suing for your costs to assess the likelihood of a claim. Whether or not the client's allegations have merit, the process of a client making a counterclaim slows down the debt recovery process and takes up your time in dealing with LPLC and defending the claim.
The client was a difficult elderly man, aggrieved at the prospect of dividing his considerable assets with his wife of 20 years. Throughout the retainer his instructions were changeable and sometimes incomplete. The client's ultimate dissatisfaction stemmed from consent orders he claimed to have felt pressured to sign. The day after he signed, he left a message for his practitioner to call him back about the possibility of appealing the orders. The next day the practitioner sent him a copy of the sealed orders and noted the steps the client needed to take to comply with them. The practitioner did not address appeal prospects as he was fed up with the client. The practitioner's response ‘to ignore the client's enquiries about an appeal’ fuelled the client's discontent and the sense that his case was not being taken seriously. The client consulted other practitioners, seeking to have the orders set aside. The practitioner sued for costs and received a counterclaim in reply.
The client consulted a practitioner in a desperate state about an ‘unfair’ property outcome delivered by judgment interstate. The practitioner assured the client he had good appeal prospects, which he did. The retainer followed a stormy route, with erratic instructions from the client. He was particularly anxious about the progress of his appeal and frustrated about delays in the appeal process. The practitioner came close to terminating the retainer because the client was so difficult. Although the appeal was ultimately a success and halved the client's liability to his former wife, the accrued appeal costs eclipsed any real gain. The client was incensed by the outcome and declined to pay his practitioner's account. When the practitioner sued for costs he was met with a counterclaim for negligence.
This category of mistakes is new in the family law area but it is similar to the types of claims we see in commercial litigation.
The complaints include:
- the client being unhappy with settlement and subsequently alleging, for example, the valuation was inaccurate because the valuer had not been briefed properly
- allegations that the practitioner failed to prepare the matter adequately for trial
- the client having to pay the costs of an adjournment and a general complaint that the costs incurred by the client’s practitioner were too high.
These claims are often made where the client refuses to give adequate instructions right up to the door of the court or fails to provide funds to allow a barrister to be briefed to prepare for trial in a timely manner. It is often exacerbated by the firm not keeping the client informed about what is happening in the matter, why delays are occurring and how the costs are mounting.
The client had unrealistic expectations relating to his custody dispute and refused to take his practitioner’s or barrister’s advice. The practitioner and barrister say their retainers were terminated the day before the trial. The client represented himself at trial and lost. He subsequently brought an application in VCAT to recover money paid into the firm’s trust account alleging the practitioner and barrister had not prepared the matter for trail.
This is a new category of mistakes that often arises from office management and attention to detail issues.
- sending important information to the client at the wrong email address
- disbursing the incorrect amount of money to the parties because no one checked the orders or financial agreement
- leaving money in the firm’s trust account where it did not earn interest without seeking the client’s instructions to do so.
The parties had agreed a property settlement of 70:30 split in favour of the husband. The asset pool comprised the matrimonial home and a car.
The practitioner for the wife disbursed the proceeds of the sale of the home with 70 per cent to the husband and 30 per cent to the wife forgetting that the wife retained the car. The husband realised the mistake and sued the practitioner for the shortfall.
Family Law Checklist.pdf
- Managing the retainer
- Running litigation
- Property disputes (including superannuation)
- Drafting order and agreements
- Disbursing funds
- Drafting financial agreements
- Certifying financial agreements
- Child support agreements
Part VIIIB of the Family Law Act 1975 (Cwlth) allows separating spouses to divide superannuation entitlements. Superannuation is treated as 'property' for the purposes of section 79.
Part VIIIB has effect over all other law and any trust deed. If a superannuation payment is to be split, it must be in accordance with Part VIIIB.
De facto couples are now able to split superannuation under the Family Law Act (but not in Western Australia.
What is permitted?
Part VIIIB allows a non-member spouse to:
- request information on the member spouse's superannuation interest from the trustee of the member spouse's superannuation fund
- flag the member spouse's superannuation interest (a payment flag operates in a similar way to a caveat)
- enter an agreement to split the superannuation entitlement or seek court orders to split the superannuation entitlement; and waive their rights to the superannuation entitlements of the spouse.
See the Family Law (Superannuation) Regulations 2001 for further detail on the rules governing the splitting and flagging of superannuation and methods for calculating parties' entitlements.
Steps to flag an entitlement or obtain a split order
- Identify the type of superannuation interest (such as accumulation scheme or defined benefit) and what phase it is in (either growth phase or payment phase) so the right information is requested.
- Request information from the trustee of the fund (and not the fund administrator) concerning the member's superannuation interest. The request must be in the appropriate form (Superannuation Information Form and Form 6 Declaration which both need to be signed by the non-member client) together with the appropriate fee for the provision of the information. It would also be prudent to have an authority for the trustee to provide the information to the practitioner.
- Value the interests. The methodology is set out in the regulations. It is a three-step process for a growth phase interest.
- Determine gross value.
- Deduct amounts for any earlier splits.
- Deduct any surcharge debt (surcharge is or was a tax on certain contributions and rollovers made to superannuation funds).
To waive an entitlement
The waiver of an entitlement by a non-member spouse:
- requires agreement of the trustee and the non-member spouse
- must be in the prescribed form
- must be accompanied by a statement that the non-member spouse has received financial advice from a financial adviser as to the financial effect of the waiver
- must be certified by the financial adviser.
Binding death benefit nomination (BDBN)
BDBN, being a reversionary interest, is a splittable payment unless the beneficiary is:
- a child under 18 years or
- a dependant child over 18 years and the payment is made to enable education to be completed or
- the child has special needs.
See regulation 13 of the Family Law (Superannuation) Regulations 2001. Payments may be made to these children at the discretion of the trustee, notwithstanding a flag or split order.
This is not a comprehensive summary of superannuation splitting. Practitioners are encouraged to consider the legislation together with the rules and regulations carefully.
Matech & Matech  FamCA 117
Frederick & Frederick (2020) FLC 93-900
Savage & Fosse (2020) FLC 93-966
Savage & Fosse  FamCA 385
Guild & Stasiuk FamCA 167
Delrio & Jindra  FCCA 1186
Jess & Garvey (2018) FLC 93-827
Thorne v Kennedy  HCA 49
Fewster & Drake (2016) FLC93-745
Saintclaire & Saintclaire  FamCAFC 245
Piper & Mueller  FamCAFC 241
Parke & Parke  FCCA 1612
The & Muir (2015) FLC 93-680
F Firm & Ruane (2014) FLC 93-611
Adame & Adame  FCCA 42
Renard & Geach  FCCA 617
Noll v Noll (2013) FLC 93-529
Wallace & Stelzer & Anor  FamCAFC 199
Hoult & Hoult  FamCAFC 109
Hoult & Hoult  FamCA 367
Hoult & Hoult  FamCA 1023
Parker & Parker  FamCAFC 22
Sullivan & Sullivan  FamCA 752
Ruane & Bachmann-Ruane and Anor  FamCA 1101
Carmel-Fevia & Fevia  FamCA 9
Blackmore & Webber  FMCAfam 154
Moreno & Moreno  FMCAfam 1109
Kostres & Kostres (2009) FLC 93-420
Black & Black  FamCAFC 7
Ryan & Joyce  FMCAfam 225
Focusing on family law.pdf
- Financial agreements
- Child support
Also examines the 10 most common mistakes LPLC sees in family law claims, and includes our Family Law key risk checklist.