Amendment to Federal Magistrates Court Rules – Rule 13.04A

Family violence, sexual abuse and family law parenting matters

Much has been recently written about family violence and sexual abuse in connection with parenting matters in the Family Court and Federal Magistrates Court.  Obviously, sexual abuse is included in the more general term of ‘family violence’ so where this paper refers to family violence alone it will usually include consideration of sexual abuse. Read more of this post

Merger of Family Court and Federal Magistrates Court – Family Law Divisions

Readers will be aware that the government has announced that only the family law function of the Federal Magistrates’ Court is being merged into the Family Court. The Federal Magistrates’ Court will remain a separate Court for general Commonwealth Law purposes but not Family Law. Read more of this post

Interim Lump Sum Orders

Introduction

This paper looks at when it is appropriate to seek an interim ‘lump sum order’ and how to give your client the best chance of being successful in obtaining one.

There are several situations where this might apply; for example your client may have no money at all and need funds urgently to re-establish and set up house. The client may have had any money with which to pay accountants and other experts in a complex case to follow a money trail or provide valuations. Read more of this post

Extinguishing Spouse Claims against Estates using Binding Financial Agreements

Willmakers have long been frustrated by the fact that family provision claims can be very difficult to avoid. Attempts to do so have largely been unsuccessful. Hence it was a brave lawyer who would advise their client that their will was unable to be challenged. An opening, at least as far as binding spouses are concerned, comes to light as a result of the decision of Hills v Chalk & Ors (as executors of the estate of Chalk (deceased)) [2008] QCA 159. By reason of changes to the Family Law Act on 1 March 2009, spouses include de facto and same-sex couples, again broadening the net. Read more of this post

European Hague Convention – Disturbing Ruling

The Grand Chamber of the European Court of Human Rights (the “ECHR”) has issued, just days ago, a major decision that appears to have an extremely significant impact on the interpretation and application of the Hague Abduction Convention within Europe and may well lead to a major split between the way that Convention is interpreted and applied within Europe versus the rest of the world. The case is Neulinger & Shuruk v. Switzerland (Application no. 41615/07). Read more of this post

Practice and Procedure update on De Facto and Same Sex Relationships

As of 1 March 2009 De facto and Same Sex couples who cohabit for 2 years came under the jurisdiction of the Family Law Act, except for parties living in WA and SA. As of 1 July, 2010 South Australia will refer its powers, leaving only WA couples outside of the Federal net. The Western Australian Family Court has always exercised jurisdiction over married and de facto couples. Hence, for practical purposes documentation in that court is the same for either married or de facto couples, but does not cover same sex relationships. Nor can superannuation be split for such couples. Read more of this post

Family Violence, Family Law, Myths and Practices

Allegations of family violence in family law matters (whether for separated, married or de facto couples) vary in intensity, seriousness and relevance.  The lawyer has an obligation to reality test their client’s allegations, to get details, not just generalities, and then to carefully advise a client as to what impact that history will have in their case.  This paper will discuss the practical effect of family violence allegations on Family Law procedures.  It will discuss the operation of state based legislation dealing with family violence, and how family violence orders are sought and defended in local Courts.  The important interaction between family violence orders and parenting orders made under Part VII Family Law Act 1976 (Cth) (‘FLA’) will then be considered. Read more of this post

Drafting settlement terms in financial matters

The whole direction of the conduct of family law dispute resolution over the past 20 years has been to encourage settlements, agreements and a conciliatory approach.  It is only rare and exceptional cases which require a final hearing.  Family law gives a direct encouragement to settlement by the making of Consent Orders or a Financial Agreement under the Family Law Act 1975 (“the Act”). Some legal practitioners have a preference for Consent Orders and for good reason. Provided they comply with the requirements of the Act however, Financial Agreements allow for more flexible, tailor made agreements. Crucially, Financial Agreements are the only context in which spousal maintenance claims can be fully and finally dismissed. Read more of this post

BFA amendments finally go through parliament

As practitioners know, the Full Court decision in Black v Black (2008) FLC ¶93-357 sent shock waves through the profession with a technical interpretation of the financial agreement (BFA) provisions of the Family Law Act 1975.

Parliament has now passed on the 23rd day of November 2009 the Federal Justice System Amendment (Efficiency Measures) Act (No.1) 2009 to deal with the concerns  raised about BFA’s.  The Family Law Act amendments are contained in Schedule 5 to that Act.  The new Act was given Royal Assent on 7 December, so the amendments commence operation on 4 January 2010. Read more of this post

Collaborating with care

Putting the pieces in place in family law matters is often challenging. Collaborative practice offers new options – and responsibilities – for all involved.

Achieving client satisfaction is very challenging for family lawyers. The litigation process often exacerbates the intense grief, stress, fear and anger clients are feeling. The collaborative law process has developed in response to this. It is designed to increase client satisfaction by keeping the dispute out of court, facilitating client input and control, and building trust between the parties (which is especially important where children are involved). It has the added benefits of being flexible, creative, and relatively quick and inexpensive – especially compared to litigation. Read more of this post