Family Law, Employment and Companies

“ 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: ”

“ 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 ... ”

“ 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. ”

“ 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 ... ”

“ 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: ”

“ Conflicts of interest are considered in the family law context in McKay & Forrest [2018] FCCA 2287, which affirms the full Family Court’s decision of Osferatu & Osferatu [2015] FamCAFC 177 as ‘the leading case in this area’. Osferatu in turn affirms the NSW Supreme Court decision of Kallinicos v ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ”

“ 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: ”

“ 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 ... ”

“ 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 ... ”

“ 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. ”

“ 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 ... ”

“ 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. ”

“ 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: ”

“ 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) ”

“ 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 ... ”

“ 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 ... ”

“ See ss 66B, 66J, 66K, 66L of the Family Law Act 1975. Section 66L of the Family Law Act 1975 provides: ”

“ 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 ”

“ 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 ”

“ 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 ... ”

“ 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 ... ”

“ 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. ”

“ 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. ”

“ 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 ... ”

“ 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 ... ”

“ When is leave required regarding the 12-month divorce time limit? ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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. ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ”

“ 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 ... ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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). ”

“ 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: ”

“ 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 ... ”

“ 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 ... ”

“ 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: ”

“ 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 ... ”

“ If the court is satisfied that: ”

“ 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. ”

“ 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 ... ”

“ 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 ... ”

“ 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: ”

“ 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). ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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’. ”

“ The applicable legislation is the Child Support (Registration and Collection) Act 1988 (Cth). The Child Support Registrar has specific powers to aid enforcement, specifically: ”

“ 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 ... ”

“ 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 ... ”

“ 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. ”

“ 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 ... ”

“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”

“ 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, ... ”

“ 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 ... ”

“ 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, ... ”

“ 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, ... ”

“ 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. ”

“ 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 ... ”

“ 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. ... ”

“ 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 ... ”

“ Who is the right recipient Subpoenas need to be addressed to a person. ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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, ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”