Family Provision Claims, Leases and Family Law
This bundle includes guides from the following three publications, as well as our Practice Management guide as an extra bonus!
Recent updates can be viewed at Obiter - News & Updates, via the link above.
This comprehensive and practical publication provides complete coverage of family provision claims, when acting for either the plaintiff or the estate.
The guide provides detailed and easy to follow commentary on the three-stage process applicable to family provision claims and allows the practitioner to provide accurate initial advice and conduct a matter from negotiation through to settlement or hearing.
Practical commentary on current practice directions and authorities on key issues are also provided.
A guide to negotiating and drafting retail, commercial and rural leases including assignment, termination, transfer and other related transactions. The commentary covers the Retail Leases Act requirements and key practical issues in leasing such as bank or personal guarantees, interruption, outgoings, repairs, renewals, registration and subleases.
Precedents include commercial and retail leases in plain English, agreements to lease, disclosure statements, licences, a library of additional clauses and notices, appropriate letters and all that is required for the quick and accurate production of leases and advice to landlords or tenants. Our comprehensive Retainer Instructions ensures nothing is missed and the client is properly advised.
Some of the most popular precedents in this publication include:
- Advice to parties reviewing a lease
- LEASE - Retail - Annexures A and B
- LEASE - Commercial industrial - Annexures A and B
- Deed of assignment of lease
- Reply to lessor's solicitor returning executed lease
- Notice to Owners Corporation
A comprehensive and easy to follow guide to Family Law in the Family Court of Australia and the Federal Circuit Court, with our valuable reference work "101 Family Law Answers".
This publication also provides all commonly required precedents, including applications, affidavits and orders, plus correspondence.
The guide covers all aspects of a Family Law matter, from negotiations prior to commencing proceedings to interim applications, then preparation and conduct of final hearings and enforcement. The commentary includes the conduct of interim hearings and conciliation conferences, together with tools for analysing contributions and s 75(2) factors.
Some of the most popular precedents provided in this publication include:
- Consent orders
- Initial letter to client with costs agreement and copy letter to spouse
- Initial pre-action letter to spouse
- Financial agreement s 90C - After separation
- Parenting plan
- Affidavit - Separation under the one roof
- Summary of assets and liabilities
Guides in this publication
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FAMILY PROVISION CLAIMS (NSW) - ACTING FOR THE PLAINTIFF
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FAMILY PROVISION CLAIMS (NSW) - ACTING FOR THE ESTATE
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101 Subpoena Answers
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101 Succession Answers (NSW)
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LEASES (NSW)
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RETIREMENT VILLAGES (NSW)
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1001 Conveyancing Answers (NSW)
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PROPERTY SETTLEMENT
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CHILDREN
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FINANCIAL AGREEMENTS
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DIVORCE
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101 Family Law Answers
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PRACTICE MANAGEMENT
MATTER PLAN
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“ Contents Overview and limitation periods3 ”
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“ While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. In some Australian jurisdictions the term ‘summons’ is used instead of ‘subpoena’, as in ... ”
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“ Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ... ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, is ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which jurisdiction/court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Technically, documents should be produced to the court, subject to the objection: see Objections below. Where the nature of the ... ”
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“ In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading NSW civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’s Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek documents ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms ... ”
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“ If the subpoena is pressed over your objection you will need to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but from court ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 (NSW) contains the provisions relating to subpoenas. In other jurisdictions see: r 414 Uniform Civil Procedure Rules 1999 (Qld); Order 42-42A Supreme Court (General Procedure) Rules 2015 (Vic) In criminal cases subpoenas are covered in s 220 ... ”
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“ A subpoena is a tactical tool in litigation but should be employed as part of the overall strategy. A subpoena allows a party to obtain evidence that might support their case. It should be an integral part of the case theory. Issue a subpoena to obtain documents that are likely to exist and will ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from the instructions and the formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building the case. However, ... ”
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“ Applying to the court The procedure for issuing subpoenas and inspecting documents is set out in the applicable civil or criminal procedure rules for each jurisdiction and covered in various levels of detail on the various court websites. See the Victorian County Court website, for example, which ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the specific court when issuing a subpoena: see the links to court websites in Power to issue a subpoena above or Further information below. Generally, subpoenas require personal service, unless they are directed to police or other public officers. ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 (NSW) and s 224 Criminal Procedure Act 1986 (NSW); r 419 ”
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“ In criminal proceedings, generally only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986 (NSW). However, some jurisdictions differ – Queensland legislation specifically provides that a subpoenaed ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to the issuing party or their lawyer. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court ... ”
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“ Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion - see, for example, r 33.8 Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are dealt with ... ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily ... ”
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“ y trusts? For clients with substantial assets, complicated families or family members who have medical or personal problems, the use of testamentary trusts has multiple benefits over usual wills, summarised below. ”
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“ First steps Taking good instructions ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ The scope of the matters the court may consider in a family provision claim and the scope of the evidence that might be required in support is potentially wide. By any measure the court’s discretionary power in determining these claims is a broad one. Family provision cases are also strictly case ... ”
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“ Where property that would otherwise have been part of the deceased’s estate and available to meet any family provision order has been transferred to a person, or into a trust, for less than full consideration – a ‘relevant property transaction’ as defined in s 75 of the Succession Act 2006 – then ... ”
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“ A threshold issue upon taking instructions, regardless of whether the deceased left a will or not, is to determine whether the client can establish eligibility under s 57 of the Succession Act 2006 to bring a claim. The categories of ‘eligible persons’ are: a person who was the wife or husband of ... ”
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“ Once eligibility is established, family provision claims involve a two-stage process as originally articulated by the majority of the High Court in Singer v Berghouse [1994] HCA 40: The court must first determine if the claimant has been left without adequate provision for their proper maintenance, ... ”
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“ It is common and effective in family provision matters, especially for plaintiffs, to brief counsel at a very early stage. Unlike most types of litigation, the key task of preparing the client’s evidence – the substantive affidavit required by the practice note – must be done before proceedings ... ”
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“ Negotiating with the estate Even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator to compromise any genuine claims against the estate. There is also a strong incentive for beneficiaries to agree to any ... ”
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“ Proceedings are commenced by filing a summons in the Supreme Court Equity Division, or the District Court Family Provision List, seeking provision pursuant to s 59 and s 60 of the Succession Act 2006. The District Court has jurisdiction under s 134(1)(c) and (2) of the District Court Act 1973 to ... ”
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“ Section 58 of the Succession Act 2006 provides that an application for a family provision order, including a notional estate order, may be made whether or not administration of the estate of the deceased person has been granted. If a grant has been made the administrator is named as the defendant. ”
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“ It is common and effective in family provision matters, especially for plaintiffs, to brief counsel at a very early stage. Unlike most types of litigation, the key task of preparing the client’s evidence – the substantive affidavit required by the practice note – must be done before proceedings ... ”
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“ The summons and other documents must be served on the estate in accordance with the provisions of r 10.5 of the Uniform Civil Procedure Rules 2005. Methods of service include personal service or posting a copy of the document to the person’s residential or business address or service on the estate ... ”
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“ All evidence in family provision cases is by affidavit. The plaintiff must file a substantive affidavit at the time of filing the summons. This affidavit is the plaintiff’s evidence in chief. The estate will file affidavits thereafter and the plaintiff will have the opportunity to file further ... ”
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“ Expert evidence in family provision claims is not very common. Like all other evidence, it is by affidavit and it must be relevant. Where the plaintiff claims need based on a medical condition, there will be medical evidence filed, although see paragraph 21(f) of the practice note as to the proof ... ”
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“ Section 60(2)(j) of the Succession Act 2006 provides that the court may consider any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. The most common form of statement relied upon is a letter or affidavit from the ... ”
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“ Discovery is not usually available in equity proceedings: Practice Note No. SC Eq 11 – Disclosure in the Equity Division. However, discovery may be obtained in family provision proceedings where necessary for the resolution of the real issues in the proceedings. This is usually done by consent. The ... ”
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“ At any hearing before the Family Provision List Judge, each party, not appearing in person, shall be represented by a legal practitioner familiar with the proceedings: paragraphs 25.1 and 25.2 of the practice note. Any practitioner appearing who does not have sufficient familiarity with the matter ... ”
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“ Even before proceedings are commenced attempts can be made to resolve the claim. There is a positive obligation on the executor or administrator to compromise any genuine claims against the estate. There is also a strong incentive for beneficiaries to agree to any reasonable settlement proposed by ... ”
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“ Practice Note SC EQ 7 provides for mediation in family provision cases and Practice Note SC Gen 6 applies to mediation generally. The court will generally refer matters to mediation by a registrar in which case there is no cost to the parties. See Court-annexed mediation on the Supreme Court ... ”
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“ If the matter has not settled at mediation, a timetable is required for the preparation of the matter for final hearing and the parties need to attempt to agree on orders in advance. The timetable needs to address filing and service of any updating affidavits of a party or beneficiary and of any ... ”
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“ Paragraphs 17.1 and 18 of the practice note require a plaintiff’s final affidavit of costs and an administrator’s affidavit of costs to be exchanged at this stage. The matter will generally be set down for a hearing at this directions hearing, but may be adjourned to a further directions hearing if ... ”
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“ The directions made at the final directions hearing will provide for the matter to be prepared for hearing and must be strictly complied with. Any adjournment of the hearing due to non-compliance with directions will have severe costs consequences and, if it is the applicant’s fault, could result ... ”
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“ If a family provision order is made, by consent or otherwise, the executor or administrator must, unless the court otherwise orders, within 28 days after the order is recorded in the court’s computerised court record system, lodge in the probate registry: the probate, letters of administration or ... ”
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“ When finalising a matter it is important to terminate the retainer. This informs the client in writing that all work on the matter is complete and that no further work will be undertaken unless the firm is otherwise instructed. If the matter is finalised in such a way that the client retains rights ... ”
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