ByLawyers News and Updates

Courts and tribunals – 1 July fee increases and legislation updates

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1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

Family Law Courts fees increase 1 July 2018

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The fees payable in the Family Court and Federal Circuit Court are changing from 1 July 2018. These increases will impact on Children and Property Settlement matters as well as Divorce/Nullity.

The By Lawyers Family Law guide will be updated where applicable to reflect these amended fees.

Reference manual – 101 Family Law Answers – commentary added

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Commentary has been added to the By Lawyers 101 Family Law Answers reference manual in the Children chapter:

Orders – Variation and the rule in Rice & Asplund
To set aside or vary final parenting orders, parties must meet the threshold test set out in Rice v Asplund (1979) FLC 90-725. This case provides that where final parenting orders have been made, the court must establish a significant change in circumstances before it sets aside or varies final orders. The rationale is founded on the ‘best interests principle’ and the public interest for parties to not continuously re-litigate parenting matters. …

There is no specific timeframe in which a significant change of circumstance must or must not be shown. It depends on the individual case. There was consideration of the rule in SPS & PLS [2008] FamCAFC 16. In that case the court said at [48] … At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle” … The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order. …

Other useful cases include:

 

Reference Manual – 101 Family Law Answers – additions

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Additions have been made to the 101 Family Law Answers reference manual.

The following commentary was added to Admissibility of settlement negotiations:

A without prejudice offer to settle parenting matters was admitted in the Western Australia case S and K [2007] FCWA 17. In this case the court said:

There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.

The Court should not be precluded from obtaining information to ensure that the principle is met…

Note: This is a single judge decision and hasn’t been followed in subsequent cases since it was handed down in 2007.

The following useful case references were added to Relocation:

Carne & Feldt [2013] FCCA 1851: the court permitted an interim relocation 100 km (1 hour) away. The child was 6 years old and the mother was relocating to live with her new partner, the father of her unborn child.

Cavanagh & Kennedy [2013] FCCA 345: the mother unilaterally relocated with the parties’ 7 year old daughter to a place an ‘hour and a half away’ despite an earlier final order providing for equal shared parental responsibility and that each ‘parent is restrained from relocating outside the … district unless agreed in writing between the parties’. The court ordered she return.

Morgan & Miles [2007] FamCA 1230: dealt with a move of 144 km and whether this constitutes ‘a relocation’.

Family Law – Divorce publication review

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The By Lawyers Family Law author has reviewed the Divorce publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Application without marriage certificate – If the parties do not have a copy of the marriage certificate, an application should be made at the relevant state Births, Deaths and Marriages. In the case of an overseas marriage, if a copy of the marriage certificate cannot be obtained, the applicant may be able to file an affidavit pursuant to r 25.01(3) of the Federal Circuit Court Rules addressing the reasons for the failure to file the marriage certificate.
  2. Appealing a divorce order – In Price & Underwood (Divorce Appeal) [2009] FamCAFC 127, the Full Court addressed the issue of whether an appeal may be filed after a divorce order has taken effect. The court was split on the issue, with Boland and Ryan JJ finding that s 93 of the Family Law Act is clear and unambiguous – no appeal lies from a divorce order which has become final. Where a divorce order which has become final the only relief available is a declaration under s 113 that the divorce order is void. May J took the view that a divorce order could be subject to an appeal even if it is of effect, on the basis of a miscarriage of justice.

As there have not been any changes in terms of significant case law or legislative changes in the last 12 months, no changes were made to precedents or the matter plan.

Family Law – Financial agreements publication review

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The By Lawyers Family Law author has reviewed the Financial Agreements publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Child support agreements and financial agreements: Whilst a financial agreement may also be a binding child support agreement if it complies with the requirements in the child support legislation, it is recommended that child support ought to be provided for in a Binding Child Support Agreement or a Limited Child Support Agreement; and
  2. Enforcement procedure when a case has not been on foot: i.e. to seek a declaration as to the enforceability of the binding financial agreement under 90KA or 90UN, an initiating application would need to be filed, seeking both a declaration and the orders in relation to enforcement. The practical reality is in most applications seeking enforcement of a binding financial agreement, an initiating application is filed seeking both the declaration and enforcement orders at once.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

Letter submitting financial agreement to other side acting for themselves has been amended by adding the following paragraph:

The agreement cannot be signed without you obtaining independent legal advice and the solicitor needs to sign where indicated on the document to confirm you have been provided with this advice.

Reference Manual – 101 Family Law Answers – additional commentary

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Stamp duty and other charges

Whilst stamp duty is the common duty parties seek an exemption from, s 90(1) does not only provide an exemption from stamp duty. It provides that certain agreements/orders are not subject to any duty or charge under any law of a State or Territory. This may include land titles office fees on a discharge of mortgage, withdrawal of caveat and/or registration of mortgage.

Practitioners need to be mindful when drafting orders to ensure their orders specify what is required: for example, whether a refinance is required, or whether a withdrawal of caveat is provided.

Family Law – Property Settlement publication review

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The By Lawyers Family Law author has reviewed the Property Settlement publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Evidentiary issues with spousal maintenance – the best evidence for the effect of health issues on the earning capacity of the applicant is usually that of a medical practitioner; and regarding the attempts made by the applicant to secure paid employment, if acting for the respondent, evidence from a recruitment expert as to the applicant’s employability and likely salary may be useful;
  2. It is best practice to advise clients, even in consent matters, to provide and request disclosure of at least the basic documents. If they do not want to do so, advising them of the risks for an agreement or orders to be set aside on the basis of non disclosure is recommended;
  3. Consent orders and the registrar seeking further clarification – a requisition may be avoided by providing a covering letter or statement of agreed facts along with the documents to be filed, explaining the orders and background which gives rise to what otherwise may appear unjust;
  4. Federal Circuit Court Practice Direction No. 2 of 2017 providing strict directions for affidavits in interim matters;
  5. 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. If the matter is urgent or there is another special circumstance, the court may make an order notwithstanding parties have not attended a conference; and
  6. If a party seeks to amend their application or response refer to Federal Circuit Rule 7.01 and Family Law Rule 11.10.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

There were only minor amendments to several letters regarding use of the term “initiating applications” as opposed to “application for final orders”.

 

Family Law – Children publication review

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The By Lawyers Family Law author has reviewed the Children publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Practical application of s 65DAC –  Equal shared parental responsibility requires parents to consult one another and make a genuine effort to jointly make decisions on major long term issues relating to a child. The practical application of the obligation in s 65DAC can be difficult in some cases and is sometimes misinterpreted. The requirement is to consult and to make a genuine attempt to jointly make a decision;
  2. Practical use of parenting plans in situations where there is not high conflict; and
  3. Federal Circuit Court Practice Direction No. 2 of 2017 providing strict directions for affidavits in interim matters.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

The author also created a new precedent letter: Letter of appointment to psychologist for a private family report located in the Going to Court section. The letter covers party representation, what the report needs to address and a list of enclosed documents filed in the proceedings.

Family Law Rules – Additional changes as of 1 March 2018

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Documents to be used in conjunction with affidavits

As of 1 March 2018, in the Family Court, a document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to or annexed to the affidavit, or filed as an exhibit to the affidavit.

There may be exceptions where court orders or the Rules provide otherwise: for example r 15.62 in relation to expert reports.

Any document referred to in the affidavit must be served with the affidavit on the other parties after filing. The document must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required: r 15.08(2)

While as of 1 March 2018, the Family Law Rules have changed, providing for annexures not to be attached to affidavits: r 15.08, in matters in the Family Court, the Federal Circuit Court continues to permit annexures to be attached. Given the majority of matters are filed in the Federal Circuit Court, not the Family Court, in practice the norm will continue to be that relevant annexures are attached to affidavits.

Undertakings

Rule 17.06 has been added, relating to undertakings. The rule sets out the form of undertakings and, in summary provides:

  • Undertakings may be given orally or in writing.
  • If they are in writing, it must be signed and filed.
  • If they are given orally, a written record must be made, signed, filed and served.
  • A definition of undertakings as to damages.

We have updated our Property Settlement and Children commentaries accordingly.

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