Boon Legal

07/10/2024

https://events.unimelb.edu.au/Law-CCCS/event/41999-the-future-of-judicial-independence

The Centre for Comparative Constitutional Law and Melbourne Centre for Commercial Law are proud to convene a special lecture from Judge Duro Sessa,...

07/10/2024

Special Lecture
The Future of Judicial Independence
MCCL and the Centre for Comparative Constitutional Studies invite you to a special lecture by Judge Duro Sessa, titled 'The Future of Judicial Independence'. The Hon. Tony Pagone AM KC will chair this lecture.
The International Association of Judges (‘IAJ’) was founded in 1953 and aims to defend the independence of the judiciary, as an essential requirement of the judicial function and guarantee of human rights and freedoms. In this lecture, the current President of the IAJ reflects on the importance of this principle and contemporary challenges.

Wednesday 16 October
5:30pm - 7:00pm
Room 920, Level 9
Melbourne Law School

22/09/2023

The family violence intervention system does not work. Where a person, and in the vast majority of instances it is a man, is violent and determined to kill or harm their spouse/partner and children no intervention order will stop him. The vast majority of women and children killed or injured had intervention orders in place. The current system does not and cannot keep victims of violent people safe. However, the intervention order system is regularly misused and abused by those who were never in any danger and often who are the perpetrators of violence. It is a first in system, namely whoever makes the complaint first is the victim and the sausage conveyer belt starts, an interim order, directions hearings, mentions, contested hearings and ultimately in most cases an intervention order, regardless of veracity of the evidence. The misuse and abuse of this area is a regular feature in family law proceedings. It gets the 'perpetrator' out of the house. It is also used as a weapon in property settlements and child matters. In a family law where I acted for the husband the wife, along with her mother, led a campaign of harassment to get the husband out. When that failed she used the family violence intervention system. In the family report in the matter she told the family consultant the husband had never been violent nor did she have any fear, she just wanted him out of the house. There were no consequences. In another matter the husband, a foot taller and 30 kilos heavier than his wife, my client, called the police first. He had started a new relationship and my client was no longer a part of his future. These are just two examples of far, far too many instances. There is also a lack of consistency as to how police deal with complaints. I don't know what the solution is but the current system does not work. It does not protect those who really need it. It is used and abused, misdirecting police time and resources.

21/08/2023

As a Notary Public I take a lot of calls about the notarisation of documents that are signed in Australia but are for financial, legal or court related purposes in countries outside Australia. Below is a summary of the general procedure where people are signing and having such documents witnessed in Australia.

Where are person is signing a private of public document the below must be followed.

1. The document must in writing and must be in the language that is the official language of the country where it will be used.
2. The document must be signed in person in front of an authorised witness. An authorised witness is usually a consular official of that country or a Notary Public.
3. For most countries if the document is signed in front of a consular official that is the end of the procedure. Generally only citizens of that country with valid documents such as a passport issued by that country can sign in front of a consular official.
4. If the person does not have citizenship and a valid document or it is inconvenient or impossible to sign in front of a consular official they must sign the document in front of Notary Public. In Australia Notaries Public are solicitors admitted by the Supreme Court of Victoria as a Notary Public.
5. If the person signs the document in front of a Notary Public after that, in most cases, they must also obtain an Apostille stamp from the Department of Foreign Affairs and Trade.
6. Whether the document is signed in front of a consular official or a Notary Public the original document must be sent to the country where they will be used.

The procedure usually applies to documents which are required for court related purposes.

The procedure also applies to the verification of documents, namely attesting to true copies of originals and academic and company extracts.

There are no shortcuts or alternatives. Unless documents are signed as required under the Hague convention which prescribes the procedure they will not be valid.

People can find the procedure confusing and difficult. However, the same procedure applies to all persons that are signing documents in Australia which are for court related purposes in another country.

15/12/2022

BOON LEGAL has moved to Ground Level, 430 William Street, West Melbourne (corner of William Street and Capel Street). Just around the corner from Victoria Market. Our new office looks onto Flagstaff Gardens.

21/08/2021

All litigation is incredibly difficult. It is invasive. All the dirty laundry is out. Every single aspect of your life is exposed, scrutinised, prodded, questioned – financial and personal. Every single transaction is visible. It becomes public knowledge between the parties, every single cent you spend and where – for all parties. Letters, emails, text messages – everything is public.

Many years ago I had a probate matter where the de facto wife had one of the best claims I had seen for some time given the circumstances. However, she told me she did not want to air her dirty laundry in public. The deceased’s estranged family had offered her $10,000.00 in full and final settlement and she wanted to accept it. I refused to act. She found a solicitor who signed her up for the $10,000.00 settlement, minus his fees. Many months later she found out the estate was worth well in excess of $1,000,000.00. Her $10,000.00 had gone largely in legal fees and the rest for living expenses.

There are the emotional aspects. In family law matters there is a marriage or a relationship, children, the building of assets. In probate matters it is siblings fighting each other over injustices, whether real or perceived. In commercial matters there is often a friendship – professional or personal.

Regardless of the nature of the dispute, plans, goals, milestones that were once shared, become the public battle ground. Solicitors navigate this every day and it is not personal for the solicitor. If it becomes personal then the solicitor should step aside as they can no longer give objective legal advice. For the people involved in the litigation this is usually their first and only involvement in litigation.

A litigant has to navigate this emotional and financial maze. It has not easy. The person has to remained focused, take and consider advice, be flexible where realistic and stood strong where legally strong. A litigant has to focus on winning the war and not every battle. That is where so many litigation matters go off the rails.

As solicitors we navigate this. We are passionate about we do and act in the best interest of our clients but within reality and the legal system.

10/08/2021

Yesterday in the city I counted over 50 vacant shops during a 15 minute walk. On Elizabeth Street, between Lt Bourke Street and Bourke Street, five shops in a row were all shut down. Behind each closed shop are human lives now without incomes, mortgages at risk, landlords without rent. A government handout is nothing but a handout. It is not even a band aid. It will not save one business. Anyone who has run a small business knows the costs - your own income, employees, lease and outgoings, and that is before you pay the many other costs to both the Victorian and the federal governments.

10/08/2021

In Victoria, until late 2018, a person did not have to provide any photo identification whatsoever when selling or purchasing a property. However, since 2018 any dealing at all with real property requires a verification of identity by way of photo identification with passports and drivers' licences being the preferred documents. Not everyone has either of these, especially older people. I have come across this problem when providing Notary Public services to people as well. Notaries Public always require verification of identity by those signing documents. For people in this situation the quickest and cheapest solution, and sometimes the only one, is to get a Proof of Age card. This is available to anyone, regardless of their age and the application is made at your local post office.

10/07/2021

Such a Croatian reaction. Love it!

🇭🇷🎾🇭🇷 Congratulations to Nikola Mektić and Mate Pavić!! 2021 Wimbledon men’s doubles champions!!!

The duo are the first All-Croatian doubles team to win a tennis Grand Slam!

06/06/2021

Victoria's rolling lockdowns of the economy have not only created an economic disaster, health issues that could have been prevented but will kill, suicides and mental health problems but legal vacuums. Commercial landlords and tenants in Victoria are in no man legal land. The previous legislative framework, seriously lacking in certainty and clarity, was a framework of sorts. The legal battles will continue for years. Now there is nothing. If you are an existing tenant your only option is to negotiate with your landlord but - for how long. There is no certainty, no clarity - nothing. In law, where there is no certainty the clause or the agreement is struck out. For tenants and landlords this is the reality. If you are a landlord negotiating a new lease the unknowns are like a chasm. What period and what percentage do you negotiate, is it a week by week affair in line with the lack of thinking of the Victorian government and how can week to week survive in a commercial reality? If you are a landlord negotiating a new lease where do you even start. There is no history of performance by the incoming tenant. Even is the incoming tenant has a history of performance in another location or a different business model how do you negotiate terms and conditions. These are the gaping legislative and commercial holes that no-one has addressed nor will they. The vast majority of landlords are 'mum and dad, family operations' and the vast majority of tenants are 'mum and dad, family operations'. They are all economic victims of the lockdowns and the drip down effect is enormous. A tenant cannot pay rent if they cannot operate, a landlord cannot collect if the tenant has nothing. These are the realities that my clients have been facing for well over a year and they have only become worst. The collateral damage of the fight against a virus, an impossible one, is far greater and its duration will be here for generations.

06/03/2021

Relationships end for many reasons. In Australia we have a civilised no fault divorce procedure. Property and child matters are determined pursuant to the Family Law Act and cover people who are married or in a bona fide relationship, regardless of the gender of the parties to the relationship.

There are several options in terms of finalising a property settlement. One is to agree on a property division without documentation and outside the Family Law Act. This is not recommended as it is not a settlement under the Family Law Act.

Other options are by way of consent orders which are made to the court but are done on the papers so there is no appearance by any party. Once made, the orders are court orders and have the same standing as if the parties appeared in front of a judge and fought it out. Where the parties are amicable and everything can be done by way of consent orders.

If there is no consent, and in order to finalise property and child matters (if there children under 18) one of the parties can issue proceedings and commence the court procedure.

Another option is a Binding Financial Agreement.

A number of years ago the Family Law Act was amended to include section 90 to allow for Binding Financial Agreements (BFAs) (popularly knowns as pre nuptial agreements). This allows people to opt out of the Family Law Act when it comes to property settlements and to split property in accordance with the agreement. BFAs must be prepared by a solicitor for one of the parties and each party must obtain their own independent legal advice and certificate of such advice from their own solicitor. BFAs can be done at the commencement of the relationship, during marriage or cohabitation or after the breakdown. If the relationship breaks down and there is a BFA in place two things will happen:
1. Both parties will abide by the BFA and that is how the property will be divided; or
2. One of the parties will make an application to the court to have the BFA set aside on a number of grounds, eg, coercion, non disclosure. If the court sets aside the BFA then, notwithstanding that there is a BFA in place, the property division will be in accordance with the Act.

Our courts have a history of setting aside BFAs.

As to how a court decides a property division, broadly, what the courts look at is:

• Duration of the relationship;
• Contributions (financial and non financial);
• The state of health and financial abilities of each of the parties and their ability to maintain themselves and any dependents;
• What is fair and equitable in all the circumstances.

Section 75(2) of the Family Law Act outlines what the court takes into consideration in a property settlement.

Children under 18 usually live with one parent and have contact with the other. The non residential parent’s obligations to pay child maintenance are determined by factors such as income, the time spent with the non residential parent and other obligations to dependents. Child maintenance is either by agreement or determined by the Child Support Agency.

In Australia we have no fault divorce. Divorce is a very important part of the procedure as it is the legal end of the marriage. A property settlement is only about the property. However, until parties are divorced the marriage continues to be on foot and a legal spouse continues to have rights to the other person’s estate.

After a divorce parties should prepare new wills and powers of attorney. A divorce annuls a will.

06/03/2021

The NBN was rolled out at 414 Lonsdale Street, Melbourne last week. My office is on level 6 of the building. On Wednesday, 3 March 2021, without any notice whatsoever the NBN disconnected my internet, telephone and fax. My service provider, Telstra, has advised that once the NBN disconnects someone there is nothing they can do. I no longer had an option to have the ADSL service reinstated and had to move to the NBN. To make this happen my service provider has to contact the NBN and both the NBN and the service provider have to make the NBN connection happen. It may well be easier to realise a united Korea. The optimistic timeline for anything to happen is 2 weeks. The NBN is uncontactable. Each and every option directs you to another authority or an internet address. They don't have to be contactable. The NBN has powers that many of the world's dictators would envy. It is also one of the most dysfunctional organisations, like an octopus whose tentacles no longer connect to a centre, each out on a frolic of its own. In a world where a business cannot operate without the internet there are still no timelines or deadlines for the NBN. The complaints procedure is lengthy and unsatisfactory. In any event, no business could survive waiting for the outcome. The record of service is truly shocking. In 2021 in the 'clever' country I have to look solutions outside the NBN and my own service provider for both my internet and phone. So much for a clever Australia.