The By Lawyers Family Law author has reviewed the Property Settlement publication covering commentary, matter plan and precedents.
Commentary updates include the following additions:
- 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;
- 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;
- 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;
- Federal Circuit Court Practice Direction No. 2 of 2017 providing strict directions for affidavits in interim matters;
- 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
- 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”.