New Federal Circuit Court practice direction for the management of family law interim proceedings commences 1 January 2018.
Family Law – Reference Manual – 101 Family Law Answers
The Reference Manual – 101 Family Law Answers is the first of the By Lawyers reference manuals to be updated to the new stylish format.
As well as the new format, two commentaries have been added in the Enforcement chapter.
Court enforcement of a child support debt: A child support debt, a debt occasioned due to non payment of a registered maintenance liability, is a debt to the Commonwealth, as opposed to the payer, and is recoverable by action taken by the Child Support Registrar: s 113; or by the payee: s 113A. …
Property orders – Enforcement and the overseas factor: Unlike parenting orders, the Family Law Act, Rules or Regulation make no provision for the registration of property orders in overseas jurisdictions, or the registration and enforcement of overseas property orders in Australia. Furthermore, Australia is not party to any international conventions which provide for the reciprocal recognition of property orders overseas. …
Family Law – The Harman Undertaking – Information obtained on discovery or subpoena
Commentary has been added to the Children and Property Settlement publications regarding the Harman undertaking:
Information obtained on discovery, subpoena or included within an affidavit cannot be used for a collateral or ulterior purpose unrelated to the proceedings in which that production occurs. This is called an implied or ‘Harman’ undertaking after Harman v Secretary of State for the Home Department [1983] 1 AC 280. It is a substantive legal obligation owed to the party who produces the documents and to the court: Hearne v Street [2008] HCA 36 (6 August 2008) at [107]-[108].
Family Law – Binding Child Support Agreements
The Children’s commentary has been enhanced by adding further information regarding the binding nature of Binding Child Support Agreements and the discretion the Court may exercise to set an agreement aside. The Full Court of the Family Court decision in Masters & Cheyne [2016] FamCAFC 255 (2 December 2016) looks at what changes may be sufficient to enliven the Court’s discretion, and they are extremely limited. The Court’s view is that binding agreements are meant to be binding and possible changes in parental arrangements should be considered before executing the agreement.
Family Law – Amended Itemised Scale of Costs
The changes to the Itemised Scale of Costs in the Family Law Rules apply from 1 January 2018.
Family Law – Discontinuance & Summary Dismissal
Commentary has been added to the Property Settlement, Children and Divorce publications on discontinuance and summary dismissal of proceedings. The necessary forms have also been linked to the relevant matter plans.
Proceedings maybe discontinued according to Family Law Rule 10.11 and Federal Circuit Court Rules 13.01 and 13.02. …
See Bigg and Suzi [1998] FamCA 14 (5 March 1998) where the Court said that not only did it have power to summarily dismiss an
application which could not succeed, but also the Court had inherent power to dismiss or permanently stay an application.
Family law – scale costs
The itemised scale of costs contained within the family law costs agreements have been updated. 4 July 2017.
Family law costs agreement
The family law costs agreements have been updated to reflect the new scale for itemised costs.
De Facto – The Tension Between Family law, succession law and Superannuation
By Guy Dawson, CEO
It is generally accepted that when two people get together there are circumstances that exist, or a period of time that has elapsed, before they can be considered life partners – before their financial lives are joined and divided in an equitable manner on separation or death.
In order to investigate whether there is in fact a de facto relationship in family, succession and superannuation law, the interpretation acts such as the Commonwealth Acts Interpretation Act 1901 section 2F sets out the matters to consider as follows:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Working out if persons have a relationship as a couple the circumstances considered may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
Registering a relationship is tantamount to deciding to marry so it is not a common practice.
Family Law
For the Family Court to make orders, under the Family Law Act 1975, the time that must have elapsed for the finding of a de facto relationship is at least 2 years.
The other circumstances that may establish jurisdiction are:
- That there is a child of the de facto relationship; or
- That the party to the de facto relationship who applies for the order or declaration, made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant; or
- That the relationship is or was registered under a prescribed law of a State or Territory.
Financial arrangements before the expiration of that time are matters for consideration by the courts as partnerships or joint venture arrangements.
Succession Law
Succession Law across the States defines the term partner or spouse to include a person who was either married to or in a domestic partnership with the intestate. Domestic partnership is a relationship for a continuous period of at least 2 years prior to death, or that was registered under a prescribed law of a State or Territory, or one that resulted in the birth of a child,.
Superannuation
The relationship test of 2 years, does not apply to the determinations of Superannuation Trustees under the Superannuation Industry (Supervision) Act 1993 .
The failure to include such a time period in the SIS legislation results in some ludicrous decisions which sees large sums of money paid to a boyfriend or girlfriend in a relationship of only a few weeks, or a month or two shacked up, without children and no registered relationship. Family members such as parents and siblings are often overlooked and receive nothing at all.
The SIS Act needs to be brought into line with family and succession law to provide the minimum period of 2 years so common sense can prevail.
Family Law
NOVEMBER
- Further Information – Added “Parenting orders – what you need to know”
- Costs Agreements – Included reference to time limit for requesting itemised bill as per the Family Law Rules, reference to interstate costs laws added, updated interest clause
OCTOBER
- Costs Agreements
- Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
- VIC/NSW – included reference to time limit for bringing costs assessment included total estimate of legal costs section with provision for variables and included authority to receive money into trust.
- WA – added clause on scale fees.
- Property Settlement Commentary – Amend – Step one – identify and value the net property 3.
- New precedents
- To do list – Children
- To do list – Financial Agreement
- 101 Family Law Answers – added new commentary on Foreign Resident Capital Gains Withholding Payments.
AUGUST
- Divorce, Children and Property Settlement guide – New Costs Agreements added for Tasmania and Northern Territory.
- Children commentary – Considerations specific to children matters added to commentary on social media evidence
- New precedents
- Letter to other side inviting them to family dispute resolution
- Letter to other side’s solicitor inviting them to family dispute resolution
JULY
- Children commentary – Amended to discuss in more detail paternity and the presumption of parentage. In certain circumstances, proving parentage can be particularly important. Parentage is also a relevant consideration as the number of blended families in Australia continues to rise.
JUNE
- Divorce commentary – Updated and restructured the commentary discussing divorce applications and reduction of court fees.
APRIL
- Property Settlement – New precedent added – Letter to other side’s solicitor with offer of settlement – Calderbank offer.
- File Cover Sheets for all publications have been completely re-formatted for a better look.
MARCH
- Property Settlement – Commentary concerning social media evidence in financial proceedings has been added to the property settlement guide.
- Children commentary – Added section on making urgent applications – Early hearing and urgent orders ex parte.
FEBRUARY
- Children commentary – Added section on variation of parenting orders. In particular, a commentary on the threshold test as established in Rice v Asplund (1978) 6 Fam LR 570 has been added.
- Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.
JANUARY
- All By Lawyers Family Law cost agreements have been updated in line with the 2016 Family Law Rules itemised scale of costs.
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