Tips For First Appearances

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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.

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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.

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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.

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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.

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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.

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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.

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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. 

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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).

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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.

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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.

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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.

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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.

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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).

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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.”

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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)

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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.

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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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Disputed Facts Aren't Irrelevant Facts

A recent Full Court decision has emphasised the need to consider not only the agreed or non-disputed facts in interim parenting decisions but also to consider the contested or disputed facts.

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Ten Tips for a Successful Family Law Mediation

The prevalence of mediations in family law matters has increased in the last five years due to many factors. The status of a mediation in a family law matter has risen to the status of a prescribed pre-action procedure. A matter being listed for hearing without a mediation having taken place is the exception.

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