Redesigning the Mediation Process
My mediation process has been redesigned to provide a more efficient booking process but primarily to expect greater involvement from me than what is considered the norm.
Latest Articles
Varying Spousal Maintenance - Twenty Years Later
An application in the Federal Circuit Court to vary a spousal maintenance order made in 1999, where the parties had been divorced for 21 years, was successful.
Med-Arb – The Next Frontier
Around twenty years ago, private mediation of family law disputes was a relatively new professional service. Today, mediation before litigation is mandatory in parenting disputes and is certainly considered best practice for all family law disputes. Since 2015, arbitration of family law financial disputes has become more widely understood and accepted. Indeed, practitioners have recently been challenged to inform the court as to whether the relevant matter is appropriate for arbitration. A common question I am now receiving, is “Can you then arbitrate this dispute after you have mediated ?”
Mediation Data Analysis
Mediation data for this financial year here at ADR Chambers has been collected. Analysing that data has revealed some interesting statistics.
Reform ?
In his first media release as AG in the 46th Federal Parliament, Mr. Porter announced; “In the Attorney-General’s portfolio there are a number of major reforms on the Government’s agenda which I will be working to achieve early in the 46th Parliament,” the Attorney-General said. “The highest priority will be the structural reform of the family law courts to ensure families requiring the assistance of the courts to finalise their relationships are able to have their matters dealt with as quickly, efficiently and cheaply as possible." But how and when remain the biggest questions to be answered.
Full Court Case Notes - First Quarter 2019
A quick review of some interesting Full Court decisions for the first quarter 2019. "Supervision" or "in the presence of" is there a difference ? When is hardship established in a leave to proceed application ? When accounting methodology does not meet FLA methodology and running Kennon arguments. When is legal privilege lost ? When is confidentiality to a settlement communication lost ?
Perpetrators Can No Longer Cross-Examine the Victim
Changes to the Family Law Act commenced on 11 March 2019 that will affect proceedings from 11 September 2019.
FCC considers when a party can
It is often raised as a point of discussion "What are the grounds for an objection to an award pursuant to reg 67Q of the Family Law Regulations." Last year I posted an article about this topic particularly the lack of prescription of the grounds for objecting to the registration of an award.
The ALRC – Review of the Family Law System – Discussion Paper
The ALRC released on 2 October 2018 it’s Discussion Paper making 124 far-reaching and significant proposals for change to the family law system. I look at 6 proposals that will be of interest to family law practitioners. Submissions are due by 13 November 2018 with the ALRC to report to the Attorney-General by 31 March 2018.
Why mediations are like ultramarathons
A colleague recently said to me that my competing in ultramarathons must be a good way of escaping the stress of conducting family law mediations. “No”, I said, “Ultramarathons help me become a better mediator.”
Arbitration Endorsed From The Top
Early resolution of family disputes is my primary purpose as a barrister. You could say it’s my speciality. At the 8th National Family Law Conference Brisbane there was much discussion, debate and deliberation about the way forward for the family law system. Arbitration is part of that way forward. See below for my special fixed fee arbitration solution.
Family Law Pathways Bundaberg Presentation
Speaking at 7:30 a.m. on a Thursday about Practice Direction 2 of 2017 might appear like a disaster waiting to happen particularly during a regional trial week and with a Federal Circuit Judge and State Magistrate in attendance along with several senior family lawyers and a selection of local family law stakeholders. Particularly when my usual crutch – the PowerPoint – was not available.
Dissecting the Merger Bill
The last 12 months have seen a litany of changes proposed or introduced into the family law system none more significant than the Federal Circuit and Family Court of Australia Bill 2018. Introduced into Federal Parliament on 23 August 2018, the Bill is currently before the Senate Legal and Constitutional Affairs Committee for report back to the Senate by 28 September 2018 (delayed to 23 November 2018). The debate about the bill has been extensive and public with exchanges between the Commonwealth Attorney General, Judges and representative associations of solicitors, barristers and the Family Law Section. But what does the Bill actually contain? Here is my attempt to dissect the Bill.
First Appearances - Tips From Justice Murphy
Family law practitioners have experienced significant changes during 2018. With the introduction of PD 2 of 2017 in the Federal Circuit Court, the pilot project in the Brisbane Registry of the FCC and many more recent legislative amendments passed and proposed, never has the need for pragmatic, precise and professional advocacy been more important. No more so than during interim applications. Recently, in Matenson, Justice Murphy of the Full Court of the Family Court provided some helpful hints and recommendations in order to assist judges sitting in busy duty lists.
Protection for DV Victims During Cross-Examination
The Commonwealth Attorney General today released draft amendments to the Family Law Act 1975 regarding preventing direct cross-examination of a victim of domestic violence from the perpetrator of such abuse.
Parenting Arrangements - Navigating the Legal Terminology and the Psychology
A successful separation is one in which the parents separate from each other but do not require the child to separate from one of the parents, either as a result of parental conflict or by one parent not being available to the child.
Helping Vulnerable Families through Family Law Disputes
The Commonwealth Attorney General has today announced a significant financial boost to our struggling children's contact centres and the new FDR services being piloted across Australia including in Queensland.
The Pros Cons and Myths of Family Law Arbitration
Australians have lead the way in terms of utilizing mediation as a means of resolving family law disputes but have been slow to embrace the arbitration of those disputes.
MED/ARB - The primary dispute resolution superhighway
Barely a week goes by now without receiving some enquiry about arbitration. The momentum toward this form of dispute resolution is now in full swing with the benefits this forum provides now being realised by both clients and lawyers.
Helping Vulnerable Families Through Family Law Disputes
The Commonwealth Attorney General has today announced a significant financial boost to our struggling children's contact centers and the new FDR services being piloted across Australia including in Queensland.
PARENTING ARRANGEMENTS - Navigating the Legal Terminology and the Psychology
A successful separation is one in which the parents separate from each other but do not require the child to separate from one of the parents, either as a result of parental conflict or by one parent not being available to the child.
Protection For Dv Victims During Cross-examination
The Commonwealth Attorney General today released draft amendments to the Family Law Act 1975 regarding preventing direct cross-examination of a victim of domestic violence from the perpetrator of such abuse.
Focusing Expectations
This interesting article on Mediate.com is recommended reading for those PDR practitioners, especially FDRPs.
The Adjective is the Banana Peel of the Parts of Speech (CP Fadiman)
Significant, overwhelming, bigger, contributions. Good grief.
Case Watch
Reviewing the following Full Court decisions reinforces my view that arbitrations are simply a more viable time and cost saving dispute resolution forum in financial matters.
Arbitration...Keeping up the Momentum
As I approach delivering my first award at the end of this month, it is pleasing to hear the number of conversations (in the line up to the associate) about referral of disputes to arbitration.
Taking ADR regional in 2017
We have heard some regional practitioners and judges complain about a lack of mediation resources contributing to longer delays for litigants or less satisfactory outcomes in regional areas. It's not that there isn't experienced local mediators – quite the contrary – but reduced availability due to court commitments or conflicts are increased in regional areas.
NEWS - An interesting start to 2017
The last few weeks has seen me stepping back into the breach in the true sense of the word. This brief foray into the catacombs of the Sir Harry Gibbs building was partly altruistic (as I find ICL briefs intrinsically rewarding), partly “product placement” (that sounds tacky) and partly to keep my forensic skills honed.
Two Types of Arbitrations – The Difference is Important
Family law financial arbitrations are gathering momentum in Queensland. Whilst relatively simple, there are some subtle nuances to be aware of when designing your arbitration process.
Arbitration Awards – Exempt From Stamp Duty? Probably But Be Careful.
In Australia, certain transfers of property between parties to a marital or de facto (domestic) relationship are subject to various revenue laws.
Just Listen
The first mediation back for 2017 had me confused. It was booked in the usual way, however one party was a son acting under enduring power of attorney for his father. The other party was the de facto partner (of the father).
Fewster & Drake [2016], FamCAFC 214
The appeal concerned the decision of Foster J to set aside a BFA and thereafter order interim spousal maintenance in the sum of $1,500 per week to the wife. The thrust of the appeal was the trial judge’s decision to set aside the BFA pursuant to s90K(1)(d) namely that there had been a material change in circumstances due to the birth of children after the execution of the agreement. It is to be noted that the wife was pregnant with the parties first child when signing the BFA.
Objection to a Family Law Financial Award
The hard work has been done and you have received your award from the arbitrator. Or, a new client attends your office with an award from an arbitrator. What steps you take next for the client, depends upon whether the client accepts and wishes to enforce the award or does not accept.
FLPA Presentation in Townsville
On Saturday 19 November, I was privileged to be a presenter at FLPA in the Tropics, Townsville with several other colleagues and respected judges. This was a repeat of the FLPA presentation in Cairns earlier in the year.
Interim ADR for Family Law
As well as offering mediation services to assist resolve disputes, often overlooked is our ability, as Family Dispute Resolution Practitioners, to assist parties on an interim basis.
Family Law Council Final Report
At the National Family Law Conference on 19 October 2016 the Attorney-General released the Reports on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (Terms of Reference 3,4 and 5).
Federal Circuit Court of Australia Annual Report 2015-16
Per the Chief Judge: “The Court’s workload has steadily increased and the timely replacement of retiring judges is critical to the Court’s ability to deal with its workload. Additional judges are also needed to cope with increased jurisdiction, greater volume, and increasing length of trials.”
National Domestic and Family Violence Bench Book
On 18 August 2016 the Attorney-General released a new online resource for judicial officers dealing with domestic and family violence cases.
Attorney-general Media Release: Important Family Law System Initiatives
Here is some good news from Canberra with the Attorney-General releasing details upon important initiatives for the family law system. Each family that is kept out of the family law system benefits all of those involved in the system.
How we might do better (Family law isn't about winning - one lawyers opinion)
What follows may not win me many friends however I hope it stimulates debate and action.
The Business Valuation
The typical family run business dynamic often presents challenges within the context of a mediation.
Awards - Can you appeal?
One common question that arises during our seminars is, “Can the award be appealed?”. The first concept to understand is that there is no provision for an “appeal” of an award but rather a review of the award (sec. 13J) or by setting aside the award (sec. 13K)
R U OK? USC Law Student’s Association R U OK Day Mental Health Forum
Last night, I was invited to be a panelist at the University of the Sunshine Coast Law Student’s Association R U OK Day Mental Health Forum.
FLPA urges the Commonwealth Government to appoint more judges
The Family Law Practitioners Association of Queensland has recently written directly to the Attorney-General challenging the suggested changes of Sen. Hansen but clearly highlighting the resource crisis in our Brisbane Registry.
ASIC launches new divorce and separation resources
ASIC launches new divorce and separation resources to support financial decisions
CASEWATCH - Full Court decision handed down today
In a decision handed down 16 August 2016, the Full Court has restated and clarified the power of a Court to make coercive parenting orders where the primary carer of children is not in dispute.
Binding Financial Agreements - A Cost Saving Measure?
A binding financial agreement (BFA) ousts the jurisdiction of the family law courts with respect to property settlement and spousal maintenance provided that certain requirements are met. The developing jurisprudence in this area of law has shown that practitioners and clients embarking upon this process need to attend same with caution and due diligence. Some practitioners simply do not draft or sign off upon BFAs through fear of being sued by their client when the agreement is determined not have been binding or is otherwise set aside.
Arbitration - Why It's Right For Your Client
Australians have lead the way in terms of utilising mediation as a means of resolving family law disputes but have been slow to embrace the arbitration of those disputes.
Being Candid With the Court
Our interactions with the Court are solemn in nature. In my experience, there is no more serious application that a legal representative can make than one seeking the removal of a Judge from hearing a matter on the grounds of actual or apprehended bias.
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