Distinction in law
Specialist
Accreditation
Family Law
1. Introduction ... 2
2. Contact details ... 2
3. Important dates ... 2
4. Assessment program ... 3
5. Core areas of knowledge ... 7
1. INTRODUCTION
The 2015 Family Law Specialist Accreditation Assessment Criteria is designed to assist practitioners to understand, prepare for and undertake the assessment specific to this area of accreditation.
This document is to be read in conjunction with the Specialist Accreditation Scheme 2015 Candidate Handbook which contains the policies and procedures relevant to all areas of accreditation.
2. CONTACT DETAILS
Please address all enquiries regarding specialist accreditation in family law to: Specialist Accreditation Team
Queensland Law Society GPO Box 1785 Brisbane Qld 4001 tel: 07 3842 5929 fax: 07 3221 2279 email: specaccred@qls.com.au 3. IMPORTANT DATES
Wednesday 20 May 2015 Mock File distributed
Wednesday 10 June 2015 Mock File due (by 4pm or sent by
registered post postmarked no later than 4pm)
Saturday 25 July 2015 Written Examination held
Friday 24 July – Sunday 26 July 2015
(individual appointments will be allocated between these dates)
Simulated Client Interview held
NB: The Family Law Specialist Accreditation Advisory Committee (“the committee”) reserves the right to change any of these dates. Sufficient notice will be provided to candidates.
4. ASSESSMENT PROGRAM
Candidates must successfully complete the prescribed assessment program set out in this section to be awarded specialist accreditation in this area of accreditation.
Practitioners wishing to be accredited should be able to:
a. perform at a high standard which is expected of practitioners wishing to hold themselves out as specialists in the area, and
b. display a high standard of knowledge of the law and procedure which underpins the performance of tasks in this area of practice.
Details of the knowledge and skill expected are contained at the end of this document. The assessment program for specialist accreditation in family law is in three parts. All parts are weighted equally.
Part 1 Mock File
Part 2 Written Examination Part 3 Simulated Client Interview
To gain accreditation, candidates must perform satisfactorily in each of the three parts of the assessment program. Candidates will be advised of what constitutes satisfactory performance in the assessment instructions.
4.1. Mock File
Date of distribution: Wednesday 20 May 2015
Due date: Wednesday 10 June 2015 (by 4pm or sent by
registered post, postmarked no later than 4pm)
Applicants may be required to prepare an advice for a client in the form of a letter and prepare appropriate court documents with respect to the various issues raised. This is likely to include an initiating application and relevant supporting Affidavit(s) but may also or alternatively require the drafting of an agreement such as a Binding Child Support Agreement, Financial Agreement or Parenting Plan.
The examiners will assess communication skills as well as legal knowledge.
Mock File Conditions
Candidates may use the resources of their offices in completing this exercise.
Candidates will face automatic disqualification from the accreditation program if any assessment material is referred to counsel or any other person for opinion or assistance.
Submissions received after the due date will not be assessed. Candidates should refer to the appropriate section of the Specialist Accreditation Scheme 2015 Candidate Handbook if they experience a problem completing the assessment by the due date.
No reference or marks which may identify the candidate or their firm should appear anywhere in the candidate’s work.
4.2. Written Examination
Date: Saturday 25 July 2015
Venue: Brisbane (exact venue to be confirmed at a later date) Time: Time to be confirmed (exam will run for 3 hours with
30 mins reading time)
Section A
Section A, worth 60% will involve two essay answer questions in areas of family law commonly encountered in practice.
Section B
Short answer questions, is worth 40% and will test across areas of family law in a specialist’s day to day practice.
In order to pass the examination, the candidate will need to achieve at least 50% in both Section A and Section B.
Examination conditions
The written examination is an open book exam
Candidates may take into the examination room any books, notes or other written material.
Portable computers may be used for reference purposes on a read-only basis so long as their use does not disturb other candidates. Access to the Internet is strictly prohibited.
Mobile telephones are not permitted.
Questions must be answered in the booklets provided. Answers must be numbered correctly.
Handwriting must be legible.
The names of candidates will not appear on any material submitted for assessment.
4.3. Simulated Client Interview
Date: Friday 24 July – Sunday 26 July 2015
Venue: Queensland Law Society, Law Society House, 179
Ann Street, Brisbane
Time: Individual appointments will be allocated on either
Friday, Saturday or Sunday (60 minutes + 10 minutes to record observations)
The candidate will conduct a simulated first interview with a person acting in the role of a client. The exercise will take up to 60 minutes and will be recorded for the purposes of assessment.
This simulated interview is intended to assess a wide range of performance standards, including those relating to interaction between the solicitor and client, taking instructions and giving advice, terms of engagement, assessing facts and legal options, canvassing the options with the client and developing the initial plan.
The candidate may (but is not required to) bring written material to the interview including instruction sheets or notes. Any file note prepared as part of the simulated interview will not form part of the final assessment for this examination component. The candidate is expected to demonstrate a clear ability to take and receive instructions, deliver preliminary advice and provide information to the "client" in a manner which satisfies the assessment criteria, core knowledge and the performance standards.
5. CORE AREAS OF KNOWLEDGE
Candidates will be expected to display a high standard of knowledge regarding: The Family Law Act, Family Law Rules, the Child Support (Assessment) Act, the Federal Circuit Court Act and Rules and other relevant legislation and case law
a. The core knowledge areas set out in this section, and
b. State Legislation relating to domestic violence, children, medical procedures and professional responsibilities, and the intersection between state and federal legislation.
c. The contents of this section (updated as at January 2015) should not be taken to be exhaustive, but indicates the range of matters which could be addressed in the assessment program.
Candidates will be assessed on the law as it stands on the date of assessment. Candidates will be expected to:
a. be able to address complex issues that might arise in any of the core knowledge areas
b. be able to identify relevant issues and problems from the fact scenarios provided c. be able to provide practical, clear and accurate advice
d. be able to draft documents in accordance with relevant procedural rules and principles, and
e. demonstrate adherence to the ethical and professional 'best practice' of family law.
Note: The cases and sections of legislation are provided by way of guideline assistance only. In the event that any new legislative reforms become effective before the date of assessment or new cases delivered, practitioners will be required to be aware of the changes to the law resulting from that legislation or those cases.
Parts, divisions, sections, orders and rules, if cited without legislative reference, are parts, divisions, sections, orders or rules of the Family Law Act 1975 or the Family Law Rules 2004.
5.1. Divorce
a. Jurisdiction b. Ground: s.48
Meaning of separation (including separation under one roof): s.49 Hedley
(2009), FLC 93-413, Stanford (2012) HCA 52 c. Effect of resumption of cohabitation: s.40
Requirements where marriage less than two years: s.44 (1B) d. s.55A declaration – Children
e. Effect on wills
f. Time limits for property and maintenance applications: s.44(3) Anderson & McIntosh (2013) FamCAFC 200
g. Applications for leave to institute proceedings out of time: Whitford (1979) FLC 90-612, Hedley (2009) FLC93-413
5.2. Nullity
a. Grounds for nullity and consequences of nullity decrees: Nagri & Chapal
(2012) FamCA 464, ReKevin (2003) FLC 93-127
5.3. Children
a. Dispute resolution
Confidentiality re counselling and family dispute resolution: s.10D and H Admissibility of statement made in counselling and family dispute
resolution: s.10E and J
S.10F Definition of” family dispute resolution” and s.10G definition of” family dispute resolution practitioner”
Family Law (Family Dispute Resolution Practitioners) Regulations 2008
(Cth), reg 25(2) how assessment of suitability is made for family dispute resolution
Role of Family Relationship Centres s.63DA and s60D obligations of advisors
s.60I - pre-filing dispute resolution requirements and exceptions
s.60J - where dispute resolution not attended because of child abuse or family
violence
Arbitration ss.10L-P, 13E-K
b. Jurisdictional requirements and discretion to exercise jurisdiction
Who may institute proceedings and possible parties: s.65C, s.69C: KAM v MJR (1998) FamCA 1896, Murray and Thomas and Anor [2011] FamCA 433, Burton & Churchin and Anor [2013] FamCAFC 180
Limits as to jurisdiction
Re F; ex parte F (1986) 161 CLR 376 – Minority Judgement by Mason and Deane JIG Intervenor (1999) FLC 92-847
Possible parties: s.69C, 65C, KAM v MJR; JIG Intervenor (1999) FLC 92-847
Definition of ‘Parent’- s.60H, 60HA, 60HB: Keaton and Aldridge (2009) FMCAfam 92; [2009] ; FamCAFC 229
65D(1): court’s power to make parenting order
Approach to making of parenting orders. MRR v GR (2010) FLC 93-424;
Wing v Choi (2013) FamCA 323
Meaning of “parenting order” and matters parenting orders can deal with: 64B
Who they may be made in favour of: s.64C
Parenting orders may be subject to later parenting plans s.64C Effect of death on parenting orders: s.65K
B v B (Re Jurisdiction) (2003) FLC 93-136, Kwon & Lee (2006) FLC 93-287 ( aka EJK v TSL)
c. Parental responsibility – Part VII, Div 2 Meaning: s.61B, 61C, 61D, 61DA, 61E
s.65DAC - Effect of parenting order that provides for shared parental responsibility:
How to approach the task of drafting orders for parental responsibility -
Pavli and Beffa (2013) 48FamLR677
A parent to have no parental responsibility - Modlin and Anstead (2013) FamCA 955
Difference between obligations re day to day issues and “major long term issues”
B and B: Family Law Reform Act (1997) FLC 92-755, Goode and Goode
(2006) FLC 93-286
s.4 definition of ‘major long-term issues’
Different consultation requirements for day to day issues and major long-term issues: s65DAE
d. Parenting orders: general principles – Part VII, Div 5 Considerations for interim and final orders
Approach of court to determining parenting orders
Best interests of children as paramount consideration: s.60CA; s.65AA:
Taylor and Taylor (1996) FLC 92-661, Tand S (2001) FLC 93-086 Relevant sections: s.60B, 60CA, 60CC, 61DA and 65DAA
Relationship between s60B and s60CC: Goode and Goode (2006) Objects and principles: s.60B
Best interests of children as paramount consideration: s.60CA; s.65AA;
Relevant best interest factors: s.60CC: primary and additional considerations
s.60CC(2A): How the court must apply the primary considerations Presumption of equal shared parental responsibility: s.61DA
Approach of court to these sections: Goode and Goode (2006), Taylor and Barker (2007) FLC 93-345 and obligation for court to work through primary and additional considerations in s.60CC, prior to considering whether s.61DA presumption applies, does not apply or is rebutted; Brown and Pedersen (1992) FLC 92-271; Dundas and Blake (2013) FLC 93-552 Discussion of “meaningful relationship”: G and C (2006), Mazorski and
Albright (2007) FamCA 520, McCall and Clark (2009) FamCAFC 92 Where presumption applies, court’s obligation to consider equal time and
substantial and significant time: s.65DAA, what court considers to determine
whether appropriate: s.65DAA(3) and (5); Wainder and Wainder (2011) FLC 93-473
Intepretation of s.65DAA: Steps for court to work through: MRR and GR
(2010) 240 CLR 461
What is “substantial and significant time”: s.65DAA(3), KML and RAE
(2006) FMCAfam 528, Dylan and Dylan (2007) FamCA 842
Example of where presumption rebutted: H and H (2007) FMCAfam 27 Court’s power to make an order outside of what parties applied for: U v U
(2002) FLC 93-112
Principles in Child Related Proceedings: s.69ZN, s.69ZQ Other Issues Concerning Parenting Orders
Children’s views
s.60CC(3)(a): one of the additional considerations s.60CD ways in which views can be put before the court
Admissibility of statements by children: Family Law Rules 2004 (Cth), rule 15.02
H and W (1995) FamCA 30: how children’s views should be considered
and weighed
R and R (Children’s Wishes) (2000) Fam CA 43
R and R (Children’s wishes) (2002) FLC 93-108; C & C (2003) FLC 93-159
Family Reports
s.62G: Hall and Hall (1979) FLC 90-713, Gaines and Gaines (2013) FMCAfam 108
Independent Children’s Lawyer (ICL): Part VII, Division 10 s.69L
Re K (1994) FLC 92-461, instances in which an order for an ICL can be made
Role of ICL Child Abuse
o s.4(1) Definition of “abuse”
o s.60CC(2)(b): s.67Z, s.67ZA, s.67ZBB and definition of “interested person”, s.67ZK
o Unfounded allegations: L v T (1999) FLC 92-875 allegations of child abuse: Part VII Division 8, subdivision D
o Unacceptable Risk Test:
M and M (1988) 166 CLR 69
Sharwin and Weldee (2012) FamCA 1081
Standard of proof: Re: W (2004) FLC 93 -192 (sexual abuse, standard of proof) Family violence and Intervention Orders Cases:
o Alam v Minister for Immigration (2012) FMCA 616Schieffer and Schieffer (2013) FamCA 168
Family Violence:
o s.4AB(1)- (3)-Definition of “family violence”
o Part VII Division 2:
s.60B(1)(b), s.60CC(2)(b), s60CC(2A), 60CC(3)(j) and (k), s.67ZBA, s.67ZBB JG and BG (1994) FLC 92-515 T and N (2003) FLC 93-172 Notice of abuse Other Issues o Occupancy of home o Sexual orientation o Religion o Aboriginality
o Splitting of siblings - “maternal factor”
o “Parental factor”
o Surrogacy
o Families and sperm donor fathers
o Schooling
o Change of name, use and admissibility of academic opinion: McGregor v McGregor (2012)
e. Relocation
s.4 definition of ‘major long-term issues’:
o A and A: Relocation approach (2000) FLC 93-035
o Styles and Palmer (2014) FamCA 383
o M andS (2007) FLC 93-313, Hepburn and Noble (2010) FLC 93-438,
Collu and Rinaldo (2010) FamCAFC 53 , MRR v GR (2010) 240 CLR 461, McCall and Clark (2009) FamCAFC 92, Starr and Duggan (2009) FamCAFC 115 Sealey and Archer (2008) FamCAFC 142,Taylor and Barker (2007) FLC 93-345
f. Parenting plans and orders (particular issues) Part V11 Divisions 4 to 6
g. Contravention of parenting orders
Part VII Division 13A: The parenting compliance provisions h. Alteration of parenting orders: s.65D (2)
The precondition of fresh circumstances: changed circumstances; undisclosed material facts
the precondition as a preliminary issue:
o Rice and Asplund (1979) FLC 90-725
o Biggs and Hurst (2014) FamCA 217 When parenting order terminates:
o Family Law Act 1975 (Cth)
o ss65H
o J and K
i. Abduction of children – within Australia and overseas
Part VII Division 13 Registration of state, Territory and Overseas orders Family Law (Child Abduction Convention) Regulations 1986
Part VII Division 8 - Subdivision C - Location and Recovery of Children j. Paternity
k. Reaching Agreement
Parenting plans and Consent Orders l. Court sanction of medical procedures
s.67ZC (1)
Re Marion (1992) 175 CLR 218 Re Alex#2 (2009) 42 FamLR 645 Re Bernadette (2011)FLC 93-463
Re Jamie (2013)Fam CAFC110 m. Children in detention
Minister for Immigration and Multicultural and Indigenous Affairs and B
(No 3) (2004) FLC 93-174
5.4. Spousal maintenance
Establishing a claim
Threshold finding under s.72; lack of adequate support and capacity to pay:
o Eliades and Eliades (1981) FLC 91-022
o Bevan & Bevan (1995) FLC 92-600
o Mitchell and Mitchell (1995) FLC 92-601; Consideration of s.75(2) factors
Consideration of s.74 - exercise of discretion
“Adequately” and “properly” – Brown & Brown (2007) FLC 93-316; Rollins – Wallis & Wallis (2008) FamCA 1272.
Relationship between spousal maintenance and property orders s.77A requirements:
o Doig (1999) FLC 92-869
o Clauson and Clauson (1995) FLC 92-595 Cessation of spousal maintenance orders See also:
o Vautin and Vautin (1998) FLC 92-827
o DJM and LJM (1998) FLC 92-816
o Moroney and Moroney (2009) FamCAFC 45
o Napthali and Napthali (1989) FLC 92-021 Registrable spousal maintenance liabilities Lump sum spouse maintenance
Urgent v Interim orders
5.5. Child maintenance and support
a. Child maintenance
s.66C FLA – Primary duty to maintain children s.66E FLA – jurisdictional aspects
s.66L FLA – Adult Child Maintenance b. Child support
Limited and Binding Child Support Agreements Sathra and Sathra (2013) FamCAFA 142 Child (s.24 Assessment Act)
Parent (s.25 Assessment Act)
Non –parent carer (s.25A Assessment Act) The Child Support Formula – Division 2 Elements of the Child Support Formula Re-establishment income
s.117 Departures – Division 4 – Part 7
o General Grounds of departures.117(2) Assessment Act
o Gyselman (1992) FLC 92-279
o Earning Capacity
o s.117 (4) (d), s.117(7A), (7B)
o DJM v JLM (1998) FLC92-816
o Skinner and Cluny (2013) FamCA 301
o Departures from Administrative Assessments
o s.98B
o s.98C(2), s.117(2) – grounds for departure Change of Assessment
o Estimates
o s.60, 61, 62, 63, 64 Child Support (Assessment) Act 1989
o Objections to Registrar Decisions
o Court Review
o Social Security Appeals Tribunal Review Court Review
o Review of SSAT decisions – see above
o Part VIII Registration Act
o Family Law Rules division 4.2.5
o When another application is pending s.116(1)(b) Assessment Act
o Complex applications s.98E, s.98R
o Disputed parentage – s.106, 107 Assessment Act. Stay orders s.111C
Child Support Registration Act; Abani and Abani and Anor (SSAT Appeal) [2014] FCCA 2058
o Jones v Child Support Registrar (2007) FamCAFC 142. Time limit on backdating assessments s.111(1) Assessment Act
o Teal & Teal (2010) Fam CAFC 120
o Non-periodic amounts s.123 Assessment Act
o Urgent child support s.139(1) Assessment Act
o Order for recovery of wrongly paid child support
o s.143 Assessment Act
o Magill (2006) 226 CLR 551
o DRP and AJL (2004) FMCAfam 440 Recovery, Enforcement and Penalties
Note:
- Assessment Act – Child Support (Assessment) Act 1989
- Registration Act – Child Support (Registration and Collection) Act 1989
5.6. Financial agreements
a. Conceptualising a financial agreement
What constitutes a financial agreement within the meaning of the Act?
Senior & Anderson (2011) FamCAFC 129
Contractual underpinnings of a financial agreement: Sullivan & Sullivan
(2011) FamCA 752
b. Matters that a financial agreement can deal with (ss 90B, 90C, 90D, 90UB, 90UC and 90UD)
Property
Financial resources
Spousal maintenance (see further ss 90E and 90UH for specific drafting requirements, and ss 90F and 90UI)
Incidental or ancillary matters (including adult child maintenance) Agreements with third parties
c. Challenging a financial agreement
Onus of proof: Hoult and Hoult (2013) FamCAFC 109 Is the agreement binding (applying ss 90G and 90UJ)? Legal advice:
o Logan & Logan (2013) FamCAFC 151
o Ruane & Bachman-Ruane (2009) FamCA 1101
o Pascot & Pascot (2011) FamCA 945
Operation of the saving provision (s.90G(1A)):
o Parker & Parker (2012) FamCAFC 33
o Abrum & Abrum (2013) FamCA 897
Ought the agreement be set aside (applying ss 90K and 90UM)? Unconscionable conduct and/or undue influence:
o Saintclaire & Saintclaire (2013) FamCA 491
o Adame & Adame [2014] FCCA 42
o Parkes & Parkes [2014] FCCA 102
Non-disclosure of assets: Adame & Adame [2014] FCCA 42 Impracticability:
o Herold & Kay [2012] FMCAfam 1071
o Bryson & Bryson [2012] FMCAfam 197
o Sanger & Sanger [2011] FamCAFC 210
Material change in circumstances: Parkes & Parkes [2014] FCCA 102
d. Agreements made prior to 2009 statutory amendments Black & Black (2008) FamCAFC 7
Retrospective operation of the post-Black statutory provisions: Wallace & Stelzer [2013] FamCAFC 199
e. Third parties and financial agreements
Separation declarations: ASIC v Rich (2003) FLC 93-171 Agreements binding on third parties
f. Intersection with the accrued jurisdiction (actions in negligence against one’s own advisors)
Noll & Noll [2013] FamCAFC 24
Ruane & Bachman-Ruane (Accrued Jurisdiction) [2012] FamCA 369 F Firm Ruane & Others (2014) FamCAFC 189
5.7. Property
Family Law Act 1975 (Cth) – Section 79 and 78
Catorgoratisation of defacto relationships Fenton & Marvel (2013) FLC 93-550
Part VIII & Part VIII AB of FLA, F.L. Rules 2004, FCC Rules 2001 a. Four Step Approach to Determining Property
Hickey (2003) FLC 93-143; Clauson (1995) FLC 92-595; Lee Steere
(1985) 91-626; Ferraro (1993) FLC 92-335; Townsend (1995) FLC 92-569; Biltoft (1995) FLC 92-614; McLay (1996), FLC 92-667; Campbell-Kuskey (1998) FLC 92-795; Stanford v Stanford (2012) HCA (15 November 2012) Baglio v Baglio (2013) FamCA 105; Sebastian and Sebastian (2013) FamCA 191; Bevan and Bevan (2013) FLC 93-545;
Bevan and Bevan (2014) FamCAFC 19
Development of the concept that the Four Step Process is merely a
shorthand distillation of the legislation which illuminates the path and not a legislatively mandated decision process - Bevan and Bevan (2013) FLC 93-545; Bevan and Bevan (2014) FamCAFC 19
Preliminary Step: It must be determined whether it is just and equitable to alter property interests - Stanford (2012) 247 CLR 108; Bevan (2013) s.79(2) FLA
Step 1: Identifying and Valuing Property, liabilities and financial resources
The court seeks to ascertain the net value of all property of the parties by deducting from their total gross property their liabilities, including unsecured liabilities.
Property is defined under Section 4 of the Family Law Act
Financial resources and expectation do not constitute property but are relevant and should be identified and evaluated
duty of full disclosure of relevant financial circumstances: Family Court Rules
FL.13
Principle of “full and frank disclosure”
Weir and Weir (1993) FLC 92-338; Black and Kellner (1992) FLC 92-287;
Chang and Su (2002) FLC 93-117 Tate (2000) FLC 93-047
Methods of obtaining financial information
Identify and value relevant property: Duff (1977) FLC90-217; Zorbas & Zorbas(1990) FLC 0-607
treating assets of company or trusts as assets of a party/discretionary trust: Ashton (1986) FLC 91-777; Stein (1986 FLC 91 -779); Harris (1991) FLC
92-254; BP & KS (2003) FLC 93-157; Foda (1997) FLC 92-753; Coventry & Coventry and Smith (2004) FLC 93-184
Kennon and Spry (2008) FLC 93-388
Interest in a partnership: Best (1993) FLC 92-418; B vB (2000) FLC 93-002 Superannuation – Coghlan (2005) FLC 93-220Prepaid legal costs; DJM v
JLM (1998) FLC 92-816
Valuations and Expert Evidence Clauson (1995) FLC 92-595
Lenehan (1987) FLC 91- 814 Borrielo (1989) FLC 92-049 Harrison (1996) FLC 92-682 Smith (1991) FLC 92-261
Liabilities: In the Marriage of Biltoft [1995] FLC 92-614. Notional property; De Angelis and De Angelis (2003) FLC 93-133.
Income tax, capital gains tax, stamp duty and GST:
Rothwell (1994) FLC 92-511; Rosati (1998) FLC 85-043; Campbell v Kuskey(1998) FLC 92-795
Income Tax Assessment Act Stamp duty:
s.90: Gazzo (1981) 149 CLR 227 CGT: Rosati
Add-backs – three categories Omacini and Omacini (2005) FLC 93-218; In the Marriage of Townsend [1995] FLC 92-569; Chorn & Hopkins (2004) FLC 93-204; Bevan & Bevan (2013) FLC 93-545
Step 2: Identify and evaluate the Contributions of Parties
s.79 (4) and s.90SM (4)No starting point of equality; Mallet (1984) 156 CLR 605; Figgins (2002) FamCA 688; Global v Asset by Asset approach; Norbis
(1986) 161 CLR 513; Cahill & Cahill (2006) FLC 93-253; Lenehan (1987) FLC 91-814; M & M (2006) FamCA 913; Zyk (1995) FLC 92-644; Pittman v Pittman (2010) FLC 93-430. Court’s approach s.79(4)(a)-(c); Zyk (1995);
Waters and Jurek (1995) 1995 FLC 92-635; McClay (1996) FLC 92-667;
Mallet (1984); Steinbrenner & Steinbrenner (2008) FamCAFC 193; Brodie & Brodie [2009] FamCAFC 6:
Direct financial contributions Indirect financial contributions
Financial contributions by or on behalf of a child of the marriage Non-financial contributions
Contributions to the welfare of the family
Special contributions or skills: JEL and DDF (2001) FLC 93-075; Kane & Kane (2013) FLC 93-569; Hoffman and Hoffman (2014) FamCAFC 92 Financial contributions in short marriages: McMahon (1995) FLC 92-606;
Goodwin (1991) FLC 92-192 post separation contributions: Jacobson (1989) FLC 92-003; (2005); Illett (2005) FLC 93-221
Third party contributions (gifts, loans etc): Gosper(1987) FLC 91-818;
Kessey (1994) FLC 92-495 ; AB and ZB (2002) FamCA 1178; Pellegrino
(1997) FLC 92-789
Gifts and inheritances: Bonnici (1992) FLC 92-272; White and Tulloch (1995) FLC 92-640; De Angelis and De Angelis (2003) FLC 93-133
Redundancy packages; Burke (1993) FLC 92-356; Tomasetti (2000) FLC 93-023
Windfalls: Zyk (1995), Farmer v Bramley (2000) FLC 93-060;
Expectation of an inheritance: White and Tulloch (1995) FLC 92-640; G and G (2000) FLC 93-043;
Interest in a partnership: Best (1993) FLC 92-418
Waste: Kowaliw and Kowaliw (1981) FLC 91-092, Townsend (1995) FLC 92-569; Brown v Green (1999) FLC 92-873;
Vicissitudes of life: Vautin (1998) FLC 92-827
Accident verdicts: Holmes (1990) FLC 92-181; Zubcic (1995) FLC 92-609;
Aleksovski (1996) FLC 92-705
Relevance of domestic violence: Kennon (1997) FLC 92-757; Rosati (1998) Pre-marriage property and contributions: Bremner (1995) FLC 92-560 Big money cases; Figgins (2002) FamCA 688; JEL & DDF (2001) FLC
93-075
Contribution to the welfare of children of the other party from a previous relationship: Robb and Robb (1995) FLC 92-555
Step 3: Identify and assess the various relevant matters set out in s.79(4) (d) to (g) which includes s. 75 (2) and s.90SM(4)(d) to (g) which includes s.90SF (3) Factors
Approach recommended by the High Court: Mallet (1984) FLC 91-507 The various factors set out in the sub paragraphs of ss 75(2) and 90SF(3)
are to be applied to the extent that they are relevant: Collins & Collins (1990) FLC 92-149
It is not appropriate to consider and quantify each of the factors separately but to arrive at a decision of overall adjustment: Clauson & Clauson (1995) FLC 92-595
The weight given to each factor is a matter for judicial discretion Mallet & Mallet (1984) FLC 91-507
The factors are prospective but are based on the roles the parties adopted during their relationship: Waters & Jurek (1995) FLC 92-635
It may be appropriate to make no adjustment: Zubcic and Zubcic (1995) FLC 92-609
75(2) factors considered
Age and state of health of the parties W v W (1997) FLC 92-723 Lawrie and Lawrie (1981) FLC 91-102 health of one party — short life expectancy
Income, property and financial resources of each party and capacity for gainful employment DJM v JLM (1998) FLC 92-816; Gould and Gould (2007) FLC 93-333; Sindel and Milton [2010] FamFC 232; Best and Best (1993) FLC 92 418
Whether either party has the care of a child under 18 Abdo and Abdo (1989) FLC 92-013 large number of children in the care of one party; Wayne & Wayne [2010] FamCAFC 33, Davida & Davida [2011] FamCAFC 38 shared care
Any fact or circumstance which the justice of the case requires to be taken into account:
Black and Kellner (1992) FLC 92-287,Gould and Gould (2007) FamCA 609non disclosure of assets
Bassi and KD Sales Force Specialists Pty Ltd v Maas (1999) FLC ¶92-867 contribution to post separation redundancy package
White and Tulloch v White (1995) FLC 92-640; Dickson and Dickson (1999) FLC 92-843 inheritances
Rosati (1998) allowance for CGT, health problems with children Elsey v Elsey (1997) FLC 92-727 effect of orders on earning capacity Ramsay v Ramsay (1997) FLC 92-742 lack of realisability of assets Kennon v Kennon (1997) FLC 92-757 violence, short marriage, impact of
relationship on earning capacity
Way and Way (1996) FLC 92-702 proposed orders to be made with one party assuming significant liabilities
Waters and Jurek (1995) FLC 92-635 adjustment in favour of one party where estate is modest and one has much higher income earning capacity;
Mitchell and Mitchell (1995) FLC 92-601 modest size of estate compared with disparity in income earning capacities – 100% adjustment to one party Homsy v Yassa and Yassa; The Public Trustee (1994) FLC 92-442
discussion of s75(2) where one party killed the other
Goodwin and Goodwin Alpe (1991) FLC 92-192 treatment of one party's interest in a trust – asset -v- resource
Step 4: Consider matters of Justice and Equity
Redman & Redman (2013) FLC 93-563
Mallet (1984)156 CLR 605; Russell (1999)FLC 92-877; JEI & DDF (2001)
FLC 93-075
Stanford (2012)(247)CLR 108
Watson & Ling (2013) FLC 93-527. equally applicable to s 90SM(3), and s 90SM(8) in particular
Bevan No 2 (2014) FamCAFC 19
b. Adjournment of Proceedings - Section 79(5) Grace v Grace (1998) FLC 92-792
c. Section 106B – transactions to defeat claims
Gould & Gould; Swire Investments (1993) FLC 92-434 d. Consideration of Third Party Interests
Ascot Investments v Harper (1981) FLC 91-000 Halabi and Artillagio 1994 FLC 92-470
Kennon and Spry High Court 2008 FLC 93-388 e. Effect of death on property proceedings
f. Execution of instruments by Order of court s.106A Corry and Corry (1983) FLC 91-343
g. Effect of bankruptcy
Bankruptcy Act 1966 – s.35 and 35 (1A) Guirguis(1997) FLC 92-726,
O'Neill(1998) FLC 92 – 811, Cummings (1996) 185 CLR124
Rights of creditors: Lemnos and others v Lemnos & Another 2008 38 FamLR 594; Biltof (1995) FLC 92-614; Re Chemaisse (1990) FLC 92-133;
Warby (2002) FLC-091 h. Equitable estoppel
Sidhu v Van Dyke [2014] HCA 19
5.8. Injunctions
s.68B and s.114; Norton v Locke (2013) FLC 93-567 Relevant principles (re: power and exercise of discretion):
o General: Waugh (2000) FamCA 1183; Mullen and De Bry (2006) FLC 93-293; G and T (2004) FLC 93-176
o Circumstances arising out of marital relationship Personal
protection/non-molestation (s.68B): Kemsley (1984) FLC 91-567; Oates and Crest (2008) FLC 93-365
To restrain dealings in property:
o Personal rights v legal or equitable interests: Mullane (1983) 158 CLR 436
o Merits of claim and degree of danger of prejudice: Sieling (1979) FLC 90-627
o Real danger of prejudice: Stowe (1981) FLC 91-027
o Prejudice to third parties: Martiniello (1981) FLC 91-050
o Ordinary business dealings: Martiniello (1981)
o Minimum restrictions imposed: Sieling (1979)
o Undertakings: Blueseas v Mitchell and McGillvray (1999) FLC 92-856 Injunctions and third parties:
o Part VIIIAA FLA
o Injunctions which affect third parties: Dovey ex parte Ross (1979) 141 CLR 526; Tiley (1980) FLC 90-898;
o Injunctions directly against third parties
o Sham/puppet/alter ego: Ascot Investments Pty Ltd (1981) 148 CLR 337
o Power no wider for interlocutory injunctions than for permanent injunctions: Re Ross – Jones (1984)
o Injunctions against third parties in s. 106B proceedings: Collins (1987) FLC 91-800
o Jurisdictional questions: Yunghanns v Yunghanns (1999) FLC 92-836 Exclusive Use and Occupation:
o Relevant matters to consider: Davis (1983) FLC 91-319; O’Dea (1980) FLC 90-136; Borzak (1979) FLC 90-688; Fedele (1986) FLC 75-427 Ex Parte Applications:
Family Law Rules 2004 Part 5.3 Applications without notice Real and urgent need to protect: Sieling (1979)
Duty of full disclosure: Dean (1977) FLC 91-027; Stowe (1981) FLC 91 027
Preservation of Evidence: Anton Pillar Orders Preservation of Property: Mareva Orders
5.9. Evidence
Relevant Legislation
o Family Law Act 1975
o Evidence Act 1995 (Cth)
o Federal Circuit Court Act
o Expert evidence single expert witnesses: Chapter 15 Family Law Rules 2004: Bass and Bass (2008) FLC 93-366
o Other experts
Admissibility of report/valuation evidence – Paino v Paino NSW Supreme Court – Court of Appeal (2009) 40 FamLR 96
Fresh evidence on Appeal: CDJ v VAJ (1998) FLC 92-828; statements by children
Evidence in State Court proceedings
5.10. Enforcement
Part VII – Division 13 A – Children
Review of ‘reasonable excuse’ for contravention of parenting order – Saldo v Tindall [2012] FamCA194
Chapter 20 Financial Orders
5.11. Costs
Lawyer-client costs governed by State or Territory in which lawyer practices eg. Legal Profession Act of relevant state for cases commenced after 1 July 2008 and in other limited circumstances
Family Law Rules 2004 (Cth), Chapter 19 s.117: Penfold (1980)
Reasons for the making of Costs Orders
Contracting out with client: Schiliro v Gadens Ridgeway (1995 FLC 92-608);
Twigg & Twigg v Rutherford (1996) FLC 92-691
Party-party costs are ordered by the Court where appropriate:
o s.117: Penfold (1980)
o Federal Circuit Court Rules 2001 (Cth), r21.09
o Family Law Rules 2004 (Cth), Chapter 19
Interim costs: Barro (1983) FLC 91-300; Strahan & Strahan (interim property orders) [2009] FamCAFC 166
s.117C offers: Harris (1987) FLC 91-822; Kowalski v Kowalski (1994) FLC 92-501
Written offers of settlement
Costs ordered due to pre-action offer to settle – Firmer v Britton [2012] FamCA 576
Costs orders against legal representatives: Anstis and Anstis and Hill, Doyle and Teague (1999) FamCA 842; Yunghanns and Ors (2000)
5.12. Reviews/Appeals/Transfers
Appeals from Court of Summary Jurisdiction;
o Nature of Hearing de novo: Harris v Caladine (1991) FMS appeals: s94AAA and s.94AA Family Law Act,
o Grayden and Grayden (2003) FLC 93-146,
o Lawson and Lawson (2007) FamCA1472 s104(2) of the Federal Circuit Act 1999
Appeals from Interlocutory Decree:
Leave to appeal
Appeals to the Full Court: Chapter 22 Family Law Rules
Fresh evidence:
o Collu and Rinaldo (2010) FamCA439
o CDJ v VAJ (1998) FLC 92-828; Allesch v Maunz(2000) FLC 93-033;
Wall (2002) FLC 93-110; Van Ballekom v Kelly (2005) FLC 93-233 Stays
o pending Appeal Family Law Rules 22.11
o pending a Review Family Law Rules 18.09 Summary dismissal:
o Linden v Commonwealth (No.2) (1996) HCA 14
o Hunter & Morrison 2014 FamCA 199
o Barden & Barden 2014 FAm CA 745
o Derek (2006) FLC 93-260
Simpson & Brockmann [2010] FamCAFC 37 – relevant to the issue of:
o fresh evidence and
o nature of appeals generally
o deals with Allesch V Maunz (2000); CDJ V VAJ (1998) McKenzie Friend
5.13. Inherent, Associated and Accrued Jurisdiction
Associated Jurisdiction s.33 Family Law Act
Limited Statutory Jurisdiction: Minister for Immigration & Multicultural & Indigenous Affairs and B (2004) 219 CLR 226
inherent: DJL v Central Authority (2000)
Slip Rule – Horleck and Horleck and Ors (2008) FamCA 683 Cross-vesting: R v Wakim; ex parte McNally (1999)
Accrued: Warby (2002) FLC 93-091; Finlayson v Finlayson and Gillam
(2002); Foley v Farquharso & Anor (2003); Bishop (2003); Noll & Noll and Anor (2013) FLC 93-529, Bergman and Bergman (2009) FLC 93-395 C and C (accrued Jurisdiction) (2001) FLC 93-076
Selen and Selen and Anor [2013] FamCAFC39; Wentworth and Hamilton and Anor [2014] FamCA 533, Ruane and Bachman-Ruane and Ors [2012] FamCA 369
5.14. Individual State Jurisdictions
Domestic Violence Children
Medical Procedures
Professional responsibilities and obligations
5.15. Court processes
Steps to include:
o Interim hearings
o Conciliation conferences
o Trials
Anticipated length of time
Likely costs (financial or otherwise)
5.16. Alternative to court processes
FDR (parenting matters) Mediation
Arbitration
Collaborative practice Agreements
o BFA or consent orders (financial matters)
6. RELATED LEGISLATION, REGULATIONS AND OTHER MATERIALS 6.1. Related Legislation and Regulations
Family Law Act 1975
Federal Circuit Court of Australia Act 1999
Marriage Act 1961
Superannuation Industry (Supervision) Regulations 1994
Child Support legislation and the Rules and Regulations
6.2. Related Procedures
a. Family Court Family Court
Family Law Rules 2004 (as amended) Family Law Regulations1984
Case Management directions March 2004 Practice Directions including:
Principal Registrar’s Notification January 2008 – consent parenting orders and allegations of abuse
No. 1 of 2007 – Omnibus Practice Direction No. 7 of 2004 - Appeals - Family Law Rules 2004
No 9 of 2004 Victorian and Queensland Registries: Medical Procedures Applications
No. 6 of 2003 – Divorce applications to be filed in Federal Magistrates’ Court Federal Circuit Court
Federal Court and Federal Circuit Court Regulations 2012 Federal Circuit Court Rules 2001
Federal Circuit Court Practice Direction No 2 of 2008 Family Dispute Resolution - Applications for orders under Part VII of the Family Law Act 1975
Federal Circuit Court Information Notice 2011 – Communicating with Judges’ Chambers
Federal Circuit Court e-filing - filing by electronic communication pursuant to Rules 2.07A and 2.07B Federal Circuit Court Rules 2001: Divorce Application, Initiating Application (Family Law), Response to Initiating Application (Family Law) and Supplementary documents
b. New South Wales legislation
Crimes (Domestic and Personal Violence) Act 2007
Children and Young persons (Care and Protection) Act 1998
Duties Act 1997
Legal Profession Act 2004
Property (Relationships) Act 1984
Suitors Fund Act 1951
Status of Children’s Act 1996
Surrogacy Act 2010
Victims Rights and Support Act 2013
NSW Professional Conduct and Practice Rules 2013 (Solicitors’ Rules)
c. Queensland legislation:
Domestic and Family Violence Protection Act 2012 (QLD)
Child Protection Act 1999 (QLD)
Surrogacy Act 2010 (QLD)
Status of Children Act 1978 (QLD)
Property Law Act 1974 (QLD)
d. South Australian legislation:
Family Relationships Act 1975
Intervention Orders (Prevention of Abuse) Act 2009
Legal Practitioners Act 1981
Stamp Duties Act 1923
e. Victorian legislation: Duties Act 2000
Family Violence Protection Act 2008
Personal Safety Intervention Orders Act 2010
Legal Profession Act 2004
Status of Children Act 1974
Births Deaths and Marriages Registration Act 1996
Assisted Reproductive Treatment Act 2008
Children Youth and Families Act 2005
Property Law Act 1958
Relationships Act 2008
6.3. Related Guidelines:
Ethical Guidelines
Family Law Council and Family Law Section of the Law Council of Australia, Best Practice Guidelines for lawyers doing Family Law Work (2nd ed)
Australian Solicitors Conduct Rules and relevant legislation in States and Territories
