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.
Recent updates can be viewed at Obiter - News & Updates, via the link above.
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
MATTER PLAN
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“ Commentaries ”
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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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“ Family relationship centres – 1800 050 321. Information, access to other services, confidential assistance, for example, family dispute resolution. Family Court locations ”
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“ Proceedings for property division under the Family Law Act 1975 are a last resort for most couples. Small asset pools, generally less than $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 expected ... ”
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“ Taking comprehensive instructions The use of the precedent Retainer Instructions ensures that all important issues are considered, instruction which cannot be contradicted later recorded, costs discussed, and the scope of the retainer clearly defined. ”
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“ When first meeting with a client, it is important to obtain relevant information to assist in advising them of their options. Print the Retainer Instructions – Property Settlement from the matter plan to complete during the conference. It cannot be emphasised too strongly the importance of getting ... ”
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“ De facto Section 44(5) and (6) of the Family Law Act ”
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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) or s 90SM(4) for de facto couples. ”
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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, 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 family ... ”
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“ Unless the matter falls within one of the legislated exceptions, parties need to comply with pre-action procedures. Though the pre-action procedures are not compulsory in the Federal Circuit Court, it is considered best practice to follow them. Rule 1.05 of the Family Law Rules requires prospective ... ”
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“ The Family Law Act includes superannuation as property of the marriage. The Act provides for the making of orders or entering into a financial agreement splitting superannuation interests and for a mechanism for the valuation of superannuation interests. Common categories of superannuation and ... ”
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“ The clean break principle Section 81 of the Family Law Act provides: ”
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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 Family 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 ... ”
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“ Some clients will have agreed upon division of their property before one of the parties comes to see the lawyer, whose 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 ... ”
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“ Genuine offers of settlement 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 can rather than a just and ... ”
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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 or Magistrates’ courts. 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 ... ”
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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 ”
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“ The Brisbane, Parramatta, Adelaide and Melbourne registries of the Federal Circuit Court have implemented a new regime for applications for property and spousal maintenance filed after 1 March 2020. It targets net asset pools of less than $500,000 including superannuation interests - called ... ”
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“ The Family Law Act, rules and regulations make 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. However, the reality is that the arbitration provisions are rarely used and ... ”
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“ Section 79A, s 90SN for de facto couples, 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 or the Federal Circuit Court. There are procedural and practical differences between the courts, and so now is the time to choose the ... ”
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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 r 4.15, r 12.02, r 12.05, and r 13.04. The relevant rules are found in chapter 13 of the ... ”
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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 and in Part 6 of the Federal Circuit Courts Rules. There are three types of service, which are set out in Table 7.1 of r 7.03. ”
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“ Family Court In the event that a party is unable to serve a document, r 7.18 of the Family Law Rules addresses circumstances in which the service may be effected in another way, substituted, or dispensed with. Rule 7.18(2) sets out the factors the court must look at when determining whether an ... ”
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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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“ Discovery Orders for discovery may be sought pursuant to s??45 of the Federal Circuit Court of Australia Act 1999 and r 10.01 of the Federal Circuit Court Rules. ”
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“ The Federal Circuit Court Rules require the parties to make a genuine effort to settle the dispute. The court itself will always encourage and allow time for the parties to pursue settlement discussions. The court is interventionist and proactive in settlement. If there is a possibility of ... ”
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“ The clean break principle Section 81 of the Family Law Act provides: ”
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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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“ Section 79(9) and s 90SM(9) of the Family Law Act provide that the court shall not make an order in a property settlement proceedings, other than an interim order or a consent order, unless the parties have attended a conference with a registrar or deputy registrar, that is, a conciliation ... ”
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“ A court book is an indexed collection of documents that the parties will rely on during the hearing. A court book ordinarily includes all originating process, pleadings and evidence, and leaves out any irrelevant documents, even if they were disclosed in the proceedings. Whilst there is no ... ”
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“ All financial matters in the Family Court are subject to case management as set out in the Family Law 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. See the matter plan for the Case Assessment Conference brochure. A case assessment conference is held before a registrar or a deputy registrar attended by the parties and their legal representatives, usually followed by a procedural hearing ... ”
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“ Section 79(9) and s 90SM(9) of the Family Law Act provide that the court shall not make an order in a property settlement proceedings, other than an interim order or a consent order, unless the parties have attended a conference with a registrar or deputy registrar, that is, a conciliation ... ”
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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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“ A court book is an indexed collection of documents that the parties will rely on during the hearing. A court book ordinarily includes all originating process, pleadings and evidence, and leaves out any irrelevant documents, even if they were disclosed in the proceedings. Whilst there is no ... ”
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