Tips For First Appearances
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
This interesting article on Mediate.com is recommended reading for those PDR practitioners, especially FDRPs.
Significant, overwhelming, bigger, contributions. Good grief.
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.
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.
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.
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.
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.
In Australia, certain transfers of property between parties to a marital or de facto (domestic) relationship are subject to various revenue laws.
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).
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.
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.
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.
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.
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).
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.”
On 18 August 2016 the Attorney-General released a new online resource for judicial officers dealing with domestic and family violence cases.
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.
What follows may not win me many friends however I hope it stimulates debate and action.
The typical family run business dynamic often presents challenges within the context of a mediation.
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)
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.
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 to support financial decisions
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.
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.
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.
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.
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.
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.