Family Law

“ Contents ”

“ Contents ”

“ 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Court of Western Australia was initially established by the Family Court Act 1975 (WA) but that legislation has been superseded by the Family Court Act 1997 (WA).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 ... ”

“ Family relationship centres – 1800 050 321. Information, access to other services, confidential assistance, e.g. family dispute resolution. Family Court locations ”

“ Reference Manual – 101 Family Law Answers Reference Manual – 101 Subpoena Answers ”

“ Taking comprehensive instructions When receiving instructions from the client, the use of the precedent Retainer Instructions is a very useful risk management tool. It prevents overlooking important issues and records instructions which cannot be contradicted later. ”

“ 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 ... ”

“ De facto Section 44(5) and (6) Family Law Act ”

“ 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 ... ”

“ Identify and value the pool of assets. Determine the parties’ contributions: s 79(4). ”

“ Unless the matter falls within one of the legislated exceptions, 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. Both the Family Court of Australia and the Federal Circuit Court: ... ”

“ 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 ... ”

“ Spousal maintenance The clean break principle ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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 ... ”

“ 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. However, the reality is that the arbitration provisions are rarely used ... ”

“ 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; ”

“ 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 ... ”

“ 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. The relevant Family Court Rules are: chapter 13. ”

“ 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 ... ”

“ 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 the r 7.03 Family Law Rules. ”

“ 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. ”

“ 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 will often require an indication from the parties’ representatives as to whether ... ”

“ Spousal maintenance The clean break principle ”

“ 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: ”

“ Section 79(9) and s 90SM(9) of the Family Law Act provides 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, i.e. a conciliation conference. ... ”

“ 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: ”

“ 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 ... ”

“ 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 ... ”

“ 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: ”

“ 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. ”

“ 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; ”

“ At the trial (the final hearing), the judge will hear evidence and receive arguments: r 16.10. 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 ... ”

“ 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 has described such usage as ‘quite common’, ‘widespread’ and said that ... ”

“ 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 ... ”

“ Preparation for hearing Once the matter is listed for hearing the court’s directions will require the parties to: ”

“ Section 79(8) of the Family Law Act 1975 provides that proceedings may be continued by the legal personal representative of the deceased party. Similar provisions apply to s 79A proceedings, de facto property proceedings, proceedings to set aside de facto property settlement orders and proceedings ... ”

“ 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 proceedings are rare. Even where a party has made an offer and the final orders are more favourable to that party than the offer, ... ”

“ It is important to ensure that when negotiations or court proceedings are finalised that the file is not left to languish and that files are properly finalised. This primarily relates to the implementation of the provisions of the orders, including: ”