ByLawyers News and Updates

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 – The Harman Undertaking – Information obtained on discovery or subpoena

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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

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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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