Family Law, Employment and Companies
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 on Obiter - our blog.
Family Law
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
Employment Law
This comprehensive and easy to follow guide provides a full overview of employment law, allowing you to confidently advise your clients on the operation of the system and their options.
All commonly required contracts, precedents and documentation are included.
The commentary includes:
- The differences between employees and contractors
- Performance Management and termination
- Redundancy
- Restraints of trade
Precedents include:
- Various employment agreements including individual, executive and casual
- Various non-employment agreements including contractor agreements and service agreements
- Various disciplinary related precedents including letter of warning to employee and letter of suspension
- Various unfair dismissal precedents – acting for employer and employee
- Deed of settlement – Redundancy
Companies, Trusts, Partnerships and Superannuation
This valuable publication provides a simple guide to companies, trusts, partnerships, joint ventures and superannuation, with all commonly required documents, allowing you to advise and service your clients with confidence.
Superannuation is explained simply and comprehensively, and is accompanied by a full suite of precedents, including everything needed to set-up, run and amend a self managed superannuation fund.
The commentary provides a tax and succession planning overview sufficient for most circumstances found in general practice.
Some of the most popular precedents included in this publication:
- Comparative table of business structures
- Limited recourse borrowing documentation
- Company constitution
- Company resolution
- Shareholder agreement (long and short forms)
- Agreement for sale of shares
- SMSF trust deed and rules
- Binding death benefit nomination
- Unit trust
- Discretionary trust deed
- Hybrid trust
- Joint venture agreement
- Partnership agreement
- Put and Call option
- Charitable trust
Guides in this publication
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“ Federal Circuit Court Practice Direction No 1 of 2019 – Judicial mediations in family law matters commences 1 January 2019. Contents ”
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“ A full commentary on the law and practice of family law property settlements. Contents ”
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“ A comprehensive manual on the law and practice of family law property settlements. Contents ”
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“ The admissibility of evidence of settlement negotiations is governed by s 131 of the Evidence Act 1995 (Cth). This section provides: (1) Evidence is not to be adduced of: ”
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“ The Family Law Act, rules and regulations have provision for the use of arbitration in family law proceedings. The legislation provides for both court ordered and voluntary arbitration (Part IIIB Division 4, Family Law Act 1975). The provisions in the rules and regulations are detailed and it ... ”
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“ Overview Capital gains tax is often incurred in family law matters and it is vital that practitioners ensure their clients obtain professional accounting advice as to possible CGT consequences of a property settlement. ”
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“ When might a case guardian be needed? In summary, case guardians are appointed when the litigant doesn’t have the capacity to conduct the case themselves. It is the obligation of the lawyer to raise the issue of capacity when they are concerned that their client doesn’t understand the nature and ... ”
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“ Family companies It is not uncommon for families as part of their financial planning to create one or multiple discretionary family trusts. There are a number of possible scenarios involving family companies and family trusts which family lawyers may come across. Two such examples are: ”
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“ Once proceedings are on foot, practitioners may sometimes need to contact the chambers of the judge to whom a matter is docketed. Care should be taken to ensure that such contact is consented to by the other side if it is not done jointly, and the other side is copied in on any correspondence. It ... ”
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“ Section 117 of the Family Law Act 1975 provides that each party shall bear their own costs, subject to other sections of the Act. There is a general principle in family law matters that each party pay their own costs: s 117(1) Family Law Act 1975. For this reason, costs orders for the whole of ... ”
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“ To enliven the jurisdiction of the Court in de facto matters pursuant to the Family Law Act 1975 (“the Act”), there is a two-limbed test: There must be a de facto relationship, as defined in s 4AA; and ”
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“ Who pays when an expert, single expert or otherwise, is required for cross examination in parenting or financial matters? See Family Law Rule 15.14: ”
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“ Section 114(1) of the Family Law Act provides that, in proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship, the court may make such order or grant such injunction as it considers proper with respect to the matter to which ... ”
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“ The telephone shuttle conference is part of Legal Aid’s dispute resolution services. These conferences are usually held by a Legal Aid Dispute Resolution Provider (mediator), who will explore with the parties if there is any scope for resolution of the parenting matter. If legal aid is only granted ... ”
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“ Notations are not binding and enforceable. Often, they are used to note that there is a Child Support Agreement or a Binding Financial Agreement, or the section 81 Notation that the parties intend the orders to finalise the financial relationship between them. ”
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“ Section 117(2A)(f) provides that the Court may have regard to settlement offers that have been made by the parties at any time during the proceedings. Offers made under r 10.06 Compulsory offer to settle of the Family Law Rules 2004 will be relevant. A precedent Letter to Other Side’s Solicitor ... ”
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“ It is not possible to subpoena any of these agencies. Centrelink is not required to comply with a subpoena to produce documents: s 207 Social Security (Administration) Act 1999. ”
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“ Family Law Rule 11.02(2)(c) provides: (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may: ”
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“ Sometimes, in parenting orders, such as when there is a watch list order, the court will order that the child is to be placed on the watch list until further order or ‘subject to authenticated consent of the parties’. But what is authenticated consent? This is also required pursuant to ss 65Y(2)(a) ”
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“ In Robb and Robb [1994] FamCA 136 (22 November 1994), the Full Court in considering facts where the husband made a contribution to the wife's children from her previous marriage the Full Court said at [65]-[68]: In considering whether the justice of a case requires some act done by a party to be ... ”
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“ In Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) [2010] FamCAFC 229 (12 November 2010), the issue was whether parties ordered to attend upon a family report writer have the right to legal representation during the interviews with the family report writer. The Full Court ... ”
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“ See ss 66B, 66J, 66K, 66L of the Family Law Act 1975. Section 66L of the Family Law Act 1975 provides: ”
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“ In MRR v GR [2010] HCA 4 (3 March 2010), the proceedings started in 2008 and, in summary, related to sections 65DAA(1) and (2) and the level to which the court needs to consider whether equal time (or substantial time) with each parent is: (a) in the best interests of the child; and ”
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“ For orders related to children with autism see Cullen & Cullen [2016] FamCA 110. In this case the Family Court discusses the best interests of a child with autism and made specific orders for the decisions relating to major long-term issues of the child which differed from those orders for the child ”
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“ To set aside or vary final parenting orders, parties must meet the threshold test set out in Rice v Asplund (1979) FLC 90-725. This case provides that where final parenting orders have been made, the court must establish a significant change in circumstances before it sets aside or varies final ... ”
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“ In Brianna & Brianna [2010] FamCAFC 97 (28 May 2010), prior to marriage the wife had a child to another man. The wife and child lived in the United States. The husband lived in Australia. They married in 2002 and separated in 2006. The parties arranged for the husband to be registered as the ... ”
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“ Parenting orders made in Australia may be registered and therefore enforced in some overseas jurisdictions. Sections 70G–70L of the Family Law Act address overseas orders. ”
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“ Parenting orders made in some overseas jurisdictions may be registered and therefore enforced in Australia. Sections 70G–70L of the Family Law Act address overseas orders. ”
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“ The case of MRR v GR [2010] HCA 4 (3 March 2010) is authoritative on relocation post the 2006 amendments and addressed the application of s 65DAA of the Act. The mother was 34 years old and the father 35 years old. Their relationship commenced in 1991 and they married in 2000. They had one child, a ... ”
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“ One increasingly popular form of evidence in parenting proceedings is that which is obtained via social media. Evidence obtained from sources such as Facebook and Twitter can sometimes provide beneficial (and conversely sometimes very damaging) evidence for parents. When are these forms of evidence ... ”
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“ When is leave required regarding the 12-month divorce time limit? ”
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“ An application for a decree of nullity may only be issued in the Family Court of Australia: see Family Law Act s39(1A); or the Family Court of Western Australia, if in Western Australia. Section 51 of the Family Law Act states “An application under this Act for a decree of nullity of marriage shall ... ”
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“ Every effort should be made to attempt to obtain a copy of a marriage certificate. The most straightforward way may be to contact the relevant Embassy/High Commission of the relevant country in Australia. If every effort has been made and a marriage certificate cannot be obtained, see Federal ... ”
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“ Sections 71A (married) and 90SA (de facto) of the Family Law Act provide that Part VIII (married) and Part VIIIAB Division 2 (de facto) do not apply to certain matters covered by binding financial agreements. A number of provisions in the Family Law Act provide parties with the means to contract ... ”
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“ In Ryan & Joyce [2011] FMCAfam 225 (18 March 2011) the parties signed a binding financial agreement dated 5 October 2004. The husband sought a declaration that the financial agreement is 'of no force or effect and that is be set aside' and that the court make orders pursuant to section 79. The ... ”
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“ The usual approach in property matters is to take the global approach of looking at the property as an ‘overall pool’. The less common asset-by-asset approach is also addressed in this commentary. ”
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“ Overview One party may have wasted or spent money on such things as gambling or the purchase of gifts for third parties: see later notes on doctrine of waste. For there to be just and equitable orders this money may be added back into the pool of assets: see: Wilson and Wilson [1989] FamCA 34 (16 ... ”
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“ When determining the division of a matrimonial or de facto asset pool, the common approach taken by the court is to consider the property of the parties on a global basis. However, the court has the discretion to take what is known as an asset-by-asset approach where appropriate. The High Court ... ”
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“ Chattels such as furniture, jewellery and artwork are considered assets for the purposes of calculating the asset pool. That is, provided that a value can be ascertained and it is worthwhile taking the items into account, which of itself can sometimes be a subject of conjecture. It can be difficult ... ”
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“ Section 81 (married couples) and s 90ST (de facto couples) provides the court with a duty to end financial relations between parties. This is commonly referred to as the ‘clean break principle’ and results in the majority of orders being made by the court, be it by consent or after the hearing of a ... ”
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“ Where there are not already proceedings before the court and agreement is reached by consent, it is necessary for two documents to be lodged with the court - an original and two certified copies: Application for Consent Orders; and ”
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“ A constructive trust commonly exists in family law in two circumstances: when the parties to the trust have a common intention that a party other than solely the legal owner has an interest in the property – that is, a real property is held in the name of the wife only however the husband and wife ... ”
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“ Adjusting property interests in an intact marriage In Stanford v Stanford [2012] HCA 52 the High Court adopted a fundamentally different approach to the application of s 79 of the Family Law Act 1975. ”
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“ The impact of death of a party to a family law order, financial agreement or live proceedings varies depending on the nature and stage of the proceedings. If proceedings have not already commenced, upon the death of a party to a marriage the right to orders for a property settlement end. ”
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“ Pursuant to the Family Law Rules 2004, each party to a prospective property case in the Family Court has a duty to make full and frank disclosure of all relevant matters. ”
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“ The effect of any orders made or proposed to be made under s 79 in relation to the property of the parties and any vested bankruptcy property of a party is relevant under s 75(2)(n). ”
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“ Section 106A Orders Section 106A is an important provision which should be considered in every property order you draft when the other party is required to execute a document. It provides: ”
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“ The Family Law Courts have the power to take into consideration property overseas when they are determining a division of assets. If there is a dispute, it may be necessary to obtain written advice about the value of the property as one would do for property in Australia. It may also be necessary ... ”
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“ Also see Kennon and Kennon [1997] FamCA 27 (10 June 1997) in relation to the treatment of s 75(2) and the just and equitable principle. Once the court has considered the factors in the first three steps the court’s next obligation is to consider if the order as proposed is just and equitable in all ... ”
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“ Usually the court deals with property which is in existence and able to be quantified. There are times, though, when the court is not dealing with such property, examples include: ”
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“ Blackwell & Scott [2017] FamCAFC 77 (28 April 2017) is a warning to parties that if orders are not complied with in the timeframes prescribed by the orders, they risk the orders subsequently being set aside. In this case the parties entered into final property consent orders. Pursuant to these ... ”
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“ If the court is satisfied that: ”
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“ Contributions to a real property may not be given full weight if they result in over-capitalisation. Installing an in-ground swimming pool which adds no value to the real property might be an example. ”
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“ Pet cases are rare in the family law courts – most of the time lawyers warn their clients not to push the point on the issue of with whom the pet will live. Judges, with backlogs of cases and overflowing duty lists are generally as pleased about dealing with pet cases as they are with dealing with ... ”
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“ If a property appreciates not due to any particular effort or act of either of the parties, it is a windfall and neither party has any greater or lesser claim to the benefits of the windfall: see Zappacosta and Zappacosta [1976] FamCA 56 (30 August 1976). The Full Court endorsed this in Wells and ... ”
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“ Once the property of the parties has been identified and valued and the contributions pursuant to s 79(4)(a)-(c) have been considered the next step is for the court to consider the matters in s 79(4)(d)-(g) S 79(4)(d)-(g) reads: ”
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“ A s 79 order may remove the need for one party to be maintained by the other party, therefore a party's entitlement to an order under s 79(1) is assessed before the question of any entitlement for spousal maintenance under s 72 is considered: see Clauson & Clauson [1995] FamCA 10 (3 March 1995). ... ”
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“ Whilst stamp duty is the common duty parties seek an exemption from, s 90(1) does not only provide an exemption from stamp duty. It provides that certain agreements/orders are not subject to any duty or charge under any law of a State or Territory. This may include land titles office fees on a ... ”
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“ Deeds or other instruments executed for the purposes of, or in accordance with, an order or financial agreement made under Part VIIIA are not liable to “any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory” (s 90L ... ”
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“ Valuing the various assets of the parties which constitute the property pool is at times a vague, uncertain and expensive task. Valuations are firmly fixed to the market place and limitations in that market place means that it is neither a precise nor truly accurate science. Valuing looks to ... ”
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“ Part XIII of the Family Law Act deals with enforcement of decrees made by a family law court. Section 105(1) provides that ‘…all decrees made under this Act may be enforced by any court having jurisdiction under this Act’. ”
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“ The applicable legislation is the Child Support (Registration and Collection) Act 1988 (Cth). The Child Support Registrar has specific powers to aid enforcement, specifically: ”
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“ If a party is seeking to enforce a financial agreement, they must first seek an order pursuant to s 90KA, or s 90UN if it is a de facto agreement. Rule 20.02 Family Law Rules and r 25B.08 Federal Circuit Court Rules concern the agreement being valid, enforceable or effective. Such an application ... ”
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“ Pursuant to s 117B of the Act, interest may be charged “on monies ordered to be paid”, excluding periodic spousal maintenance. The rate of Interest is in accordance with Family Law Rule 17.03 and Federal Circuit Court Rule 22.01 and is 6% above the cash rate published by the Reserve Bank. The cash ... ”
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“ Can orders relating to property made in the family law courts be enforced overseas, and vice versa? The court has jurisdiction to make orders in relation to overseas property of the parties, but it is not that simple. ”
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“ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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“ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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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, ... ”
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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 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. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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“ In criminal cases s 225 Criminal Procedure Act 1986 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 something, ... ”
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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 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] NSWSC ... ”
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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 ... ”
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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 (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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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. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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“ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
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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 you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
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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 your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
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“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
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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 court where you are issuing the 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 ... ”
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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 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
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“ In criminal proceedings, 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. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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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 you. 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 proceedings, will respond to a subpoena ... ”
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“ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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“ This information is included for research and educational purposes only. The interpretation of these cases is that of the author, and the lawyer should read the complete judgment to ascertain whether a particular case may be relevant to the issue before the lawyer. It needs to be appreciated that ... ”
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“ As family practitioners we are regularly advising clients that property settlement reached between separated husbands and wives or de facto spouses as the case may be must be documented in the appropriate legal manner. This is usually done via an Application for Consent Orders or, depending on the ... ”
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“ The Family Law Legislation Amendment (Family Violence and Other Measures) Act received Royal Assent on 7 December 2011 and commenced on 7 June 2012. The purpose of the amendments was to better address family violence in family law. Set out below is a comparison of the previous sections of the ... ”
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“ The purpose of the Victorian Relationships Act is to establish a Victorian relationships register for domestic relationships, provide for relationship agreements, provide for adjustment of property interests between domestic partners (repealing part IX Property Law Act 1958), and to provide for ... ”
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“ Further to the article in the November/December 2008 (The Legal Executive) Journal, please note the Relationships Amendment (Caring Relationships) Bill 2008 which will amend the Relationships Act 2008 (the ‘principal Act’), the latest default implementation date being 1 December 2009 if not ... ”
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“ The use of smart phones has made it easier for parties in family law proceedings to secretly obtain audio and video recordings as evidence to be used in their family law cases. The Chief Justice of the Family Court of Australia recently described such usage as ‘quite common’, ‘widespread’ and said ... ”
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“ This information is included for research and educational purposes only. The interpretation of these cases is that of the author, and the lawyer should read the complete judgment to ascertain whether a particular case may be relevant to the issue before the lawyer. It needs to be appreciated that ... ”
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“ The Family Court of Western Australia was initially established by the Family Court Act 1975 (WA) but that legislation has been superseded by the Family Court Act 1997 (WA). The Family Court of Australia is a superior court of record and is governed by the Family Law Act 1975 (Cth). The Family ... ”
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“ Family relationship centres – 1800 050 321. Information, access to other services, confidential assistance, e.g. family dispute resolution. Family Court locations ”
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“ Reference Manual – 101 Family Law Answers Reference Manual – 101 Subpoena Answers ”
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“ Proceedings for property division under the Family Law Act 1975 are a last resort for most couples. Small asset pools - that is, those under $500,000 - should not go to court. Average costs of a matter that goes to a two-day hearing are in excess of $35,000 for each party. It can generally be ... ”
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“ Initial meeting with client When first meeting with a client, it is important to obtain relevant information to assist in advising them of their options. ”
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“ De facto Section 44(5) & (6) Family Law Act ”
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“ The Family Court of Western Australia was initially established by the Family Court Act 1975 (WA) but that legislation has been superseded by the Family Court Act 1997 (WA). The Family Court of Australia is a superior court of record and is governed by the Family Law Act 1975 (Cth). The Family ... ”
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“ This table is a guide only and should only be used with the commentary. For example, the table indicates that it is unusual for the court to make an adjustment for differing earning capacity in a short marriage where the marriage has had no impact on earning capacity; however circumstances may ... ”
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“ Identify and value the pool of assets. Determine the parties’ contributions: s 79(4). ”
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“ In many cases parties to a marriage are not both registered on title to real property which, for the purposes of the Family Law Act 1975, is considered matrimonial property (or property of a de facto relationship, as the case may be). From a family law perspective, this has little relevance as ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ Unless the matter falls within one of the legislated exceptions, comply with pre-action procedures. Both the Family Court of Australia and the Federal Circuit Court: r 1.05 Family Law Rules require prospective parties to property proceedings to comply with pre-action procedures as set out in ... ”
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“ The Family Law Act was amended in December 2002 to include superannuation as property of the marriage and to provide for the making of orders or entering into a financial agreement splitting super interests and for a mechanism for the valuation of superannuation interests. Common categories of ... ”
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“ Spousal maintenance The clean break principle ”
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“ The inclination to look at the division of the property as a percentage split based on applying percentages to individual contributions and then tallying them up is one that can produce inappropriate results. The court will not treat division of the asset pool as a mathematical exercise. Looking ... ”
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“ Many practitioners have failed to appreciate that the court’s pre-action procedures for disclosure (Schedule 1 to the Family Law Rules) provide for compliance “as far as it is practicable” and that parties should “take a sensible and responsible approach” to them. Unfortunately many practitioners ... ”
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“ Some clients will have agreed upon division of their property before one of the parties comes to see you. Your role is then to document their agreement in an enforceable form and carry out the required transfers of property. This is usually by way of consent orders filed in the closest registry of ... ”
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“ Genuine offers of settlement The latest amendments to the rules require a genuine offer of settlement to be made prior to instituting proceedings. This is a reflection of the court’s understanding of the destructive nature of the adversarial system which encourages parties to seek as much as they ... ”
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“ The Application for Consent Orders is made by filing at least two copies in the registry of the Family Court or the Local Court. The orders are made in chambers with no requirement for the parties to attend Court. The need for a marriage or children's birth certificates has been dispensed with. ... ”
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“ Statements of Agreed Facts, Recitals and Notations are sometimes used when Orders are sought by Consent, more so when the orders will be made without an appearance. A Statement of Agreed Facts is a separate document filed with the Orders. They provide a detailed summary and explanation of ... ”
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“ NOTE: For a complete treatment of financial agreements, refer to the Financial Agreements Guide. Whilst financial agreements cannot be approved by or registered in the court they are made under the Family Law Act and deal with all aspects of the division of the parties’ property including ... ”
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“ The Family Law Act, Rules and Regulations have provision for the use of arbitration in family law proceedings. The legislation provides for both court ordered and voluntary arbitration: Part IIIB Division 4 Family Law Act 1975. The provisions in the rules and regulations are detailed and it ... ”
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“ Section 79A of the Family Law Act 1975 addresses two circumstances in which a property order can be set aside or altered: (1) With the consent of all the parties who were party to the original orders; ”
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“ In the event that agreement is not reached then the time has come to institute proceedings so the decision needs to be made whether to file in the Family Court of Australia or the Federal Circuit Court. There are procedural and practical differences between the courts, and so now is the time to ... ”
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“ Once proceedings are commenced the parties have a duty to make timely, full and frank disclosure of all information relevant to the issues in dispute. For a full listing refer to the financial statement and rr 4.15, 12.02, 12.05, and 13.04. Disclosure requires a party to provide to the other ... ”
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“ Certain family law documents can be electronically filed through the Commonwealth Courts Portal. This service is available 24 hours a day. The portal also provides registered users with access to information about cases that are before the courts including documents that have been filed, future ... ”
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“ Types of service Service in family law matters is addressed in Chapter 7 of the Family Law Rules 2004. There are three types of service, which are set out in the Table 7.1. ”
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“ The Family Law (Fees) Regulation 2012 governs the fees for family law matters. In certain circumstances parties may apply for a reduction of court fees or an exemption from paying court fees. Cheques for filing fees should be made payable to 'Collector of Public Monies'. ”
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“ Jurisdiction There is no monetary limit to the court’s jurisdiction. ”
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“ The Federal Circuit Court Rules require the parties to make a genuine effort to settle the dispute. The court is interventionist and proactive in settlement. ”
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“ Spousal maintenance The clean break principle ”
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“ The Court runs a docket system. The matter will be allocated to a judge before the first return date. As in the Federal Court, the judge will case manage the matter to determination. On the first return date the court wants to know: ”
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“ Rule 10.05 of the Federal Circuit Court Rules 2001 (FCC Rules) governs Conciliation Conferences in the Federal Circuit Court. The date for the Conciliation Conference in the Federal Circuit Court is usually given by the court at the first return date of the Initiating Application. The procedure ... ”
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“ All financial matters in the Family Court of Australia are subject to case management as set out in the Family Court rules. The Family Court’s case management system is divided into three phases: ”
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“ The first court event is a case assessment conference. A case assessment conference is held before a deputy registrar attended by the parties and their legal representatives, usually followed by a procedural hearing and/or court ordered mediation. ”
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“ Each party must file a financial questionnaire within 21 days after the case assessment conference and serve a copy on the other party. Within 28 days the applicant must prepare and serve on the respondent a balance sheet and within 21 days of receipt the respondent must complete their part of the ... ”
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“ This phase brings the matter to hearing before a Judge of the Family Court. The trial process involves the client in significant costs and the practitioner who is not an advocate usually having to brief counsel. This phase includes: ”
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“ Apply to the registry at the earliest opportunity after notifying the other side. Both parties must attend the hearing. The court will only vacate the date in exceptional circumstances unless the matter has resolved and consent orders can be made or agreement on discontinuance has been reached. ”
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“ Non-compliance will result in the matter being listed in the Defaulters List before the case management judge or a registrar who can make orders provided for in r 11.02(2) including: An order dismissing or striking out the proceedings or applications/responses; ”
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“ A party in default must personally attend with their legal representative in the defaulters list. A prisoner may attend by electronic communication. Request to Attend by Electronic Communication (a phone hook-up with the registrar) at any court event must be filed in the registry at least seven ... ”
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“ At the trial (the final hearing), the judge will hear evidence and receive arguments: r 16.13. As set out above at the first hearing before a judge, normally, detailed orders will be provided in relation to the material to be provided by the parties’ legal representatives to the trial judge prior ... ”
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“ The use of smart phones has made it easier for parties in family law proceedings to secretly obtain audio and video recordings as evidence to be used in their family law cases. The Chief Justice of the Family Court of Australia recently described such usage as ‘quite common’, ‘widespread’ and said ... ”
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“ Evidence obtained via social media is becoming increasingly common in family law proceedings. Evidence obtained from sources such as Facebook and Twitter can sometimes provide beneficial (and conversely sometimes very damaging) evidence for parties. Whilst this form of evidence is predominately ... ”
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