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Practitioner's Guide to Family Law Is Aimed at Junior Members of the Profession and Practitioners Who Do Not Regularly Practice in Family Law A PRACTITIONER’S GUIDE TO FAMILY LAW A Practitioner’s Guide to Family Law 1 2 A Practitioner’s Guide to Family Law TABLE OF CONTENTS ABOUT THIS HANDBOOK ABOUT NSW YOUNG LAWYERS AND THE NSW YOUNG LAWYERS FAMILY LAW COMMITTEE ACKNOWLEDGMENTS PART A – GENERAL PRINCIPLES OF FAMILY LAW Chapter 1: Property 13 Chapter 2: Maintenance 33 Chapter 3: Parenting 39 Chapter 4: Costs 77 PART B – GOING TO COURT Chapter 5: Before you file 85 Chapter 6: Interim proceedings 97 Chapter 7: Case preparation 115 PART C – AFTER ORDERS ARE MADE Chapter 8: Wrapping it up 123 Chapter 9: Appeals and Reviews 125 Chapter 10: Enforcement and contravention 131 A Practitioner’s Guide to Family Law 3 Chapter 11: Varying and setting aside orders 141 PART D – DE FACTO RELATIONSHIPS Chapter 12 – De facto proceedings 151 PART E – ALTERNATIVES TO COURT Chapter 13: Alternative dispute resolution 161 Chapter 14: Drafting settlement documents 167 PART F – LAWYER SKILLS Chapter 15: Interviewing, negotiating, and client skills 177 Chapter 16: Drafting skills 187 Chapter 17: In the court 191 Chapter 18: Issues for regional practitioners 197 Chapter 19: Ethical challenges for young lawyers 203 PART G – LEGAL AID Chapter 20: Legal Aid 209 PART H – DIVORCE Chapter 21 – Divorce 221 PART I – CARE AND PROTECTION Chapter 22: Care and Protection 229 4 A Practitioner’s Guide to Family Law PART J – AVOS AND FAMILY LAW Chapter 23: AVO’s 255 PART K – FUTURE DIRECTIONS Chapter 24: Future directions 271 REFERENCES A Practitioner’s Guide to Family Law 5 6 A Practitioner’s Guide to Family Law ABOUT THIS HANDBOOK A Practitioner's Guide to Family Law is aimed at junior members of the profession and practitioners who do not regularly practice in family law. The focus of the Handbook is on the practical aspects of family law procedure. This Handbook is not intended to be a comprehensive guide on any topic covered. The law is stated as at June 2008. Sasha More Chair NSW Young Lawyers Family Law Committee A Practitioner’s Guide to Family Law 7 ABOUT NSW YOUNG LAWYERS AND THE NSW YOUNG LAWYERS FAMILY LAW COMMITTEE NSW Young Lawyers (“NSWYL”), a division of the Law Society of New South Wales, is a forum for young lawyers in NSW to initiate and express fresh ideas and directions on legal and social issues for the benefit of the profession and the community. It represents lawyers who are under 36 years of age or who have been admitted to practise for less than five years, and law students. The objects and purposes of NSWYL include: to further the interests and objectives of lawyers in New South Wales; to challenge the views of the day having regard to the interests and rights of young people; and to promote the benefit of the community and disadvantaged groups. NSW Young Lawyers Family Law Committee: This book has been written by members of the NSWYL Family Law Committee (“the Committee”). The Committee is made up of lawyers and law students who have an interest in family law. The aims of the Committee are: to provide professional education in family law for the whole profession by organising CLE seminars as part of the NSWYL’s CLE program; to proactively monitor and have input into changes in family law including commenting on proposed legislation, making submissions to governments, courts and other organisations on various issues relevant to family law as they arise; to organise meetings, seminars, publications and public forums on issues relating to family law; to provide a forum for young practitioners to discuss issues of concern to them; 8 A Practitioner’s Guide to Family Law to provide a peer support network for young practitioners and practitioners in the first 5 years of practice involved in family law; to promote issues which are of relevance and concern to young lawyers; and to promote NSWYL’s activities and enhance the image of NSWYL. If you are interested in joining our committee or have any questions please contact our Committee chair, Sasha More at [email protected], or the NSWYL office on (02) 9926 0268. A Practitioner’s Guide to Family Law 9 ACKNOWLEDGMENTS MANAGING EDITORS - Olivia Conolly, Vanessa Jackson, Anna Leonard, Collect McFawn and Sasha More CONTRIBUTORS - Current Contributors - Kelly Batey ,Tom Butlin, Olivia Conolly, Leah Georgakis, Cristine Huesch , Vanessa Jackson, Madeline Joel, Natasha Jones, Anna Leonard, Collette McFawn, Lisa Molloy, Mary Snell, Sasha Moore, Celia Oosterhoff, Michelle Osbourne, Christopher Paul, Sharda Ramjas, Vaughan Roles, Anne Taylor, Tri Tran, Past Contributors - David Barry, Sarah Barton, Paul Boer, Phoebe Burgess, Fiona Caulley, Suzanne Christie, Raymond Clack, Alex Colquhoun, Damara Cox, Jacqui Dawson, Suzanne Dowey, Kevin Dwyer, Gabby Frankenstein, Alexandra Harland, Roger Harper, Sonia Iwshenko, Danielle Jaku, Natasha Jones, Tara Kiss, Emma Kruijer, Stephanie Lee, Jayson McCauley, Nigel Meyers, Rosemary Norgate, NSW Young Lawyers Criminal Law Committee, Natascha Rohr, Paloma Sessions, Karen Shea, Leanne Slade, Tri Tran, Robyn Young, Chelyn Woon SPECIAL THANKS TO OUR REVIEWERS FM Sexton, Elizabeth M Picker, Chris Dimock, Glenn Thompson, Alex Wearne, Nabil Wahhab, Nic Angelov, Anna Henshaw, Sally Cole, and Belinda Micallef ILLUSTRATIONS Andrew Joyner THANKS Poppy Derkis, Amy O’Rouke and Trish Babu Apologies to those whose names have been inadvertently omitted. 10 A Practitioner’s Guide to Family Law PART A – GENERAL PRINCIPLES OF FAMILY LAW A Practitioner’s Guide to Family Law 11 12 A Practitioner’s Guide to Family Law CHAPTER 1 – PROPERTY 1.1 PROPERTY BASICS The main objectives of the court in determining a property settlement under the Family Law Act 1975 (Cth) (“FLA”) are to: “finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them” (s 81 FLA). The approach currently taken by the court in property applications is commonly referred to as the “four-step process”: 1. identifying the assets, liabilities and financial resources of the parties; 2. assessing the contributions made by the parties (as defined in s 79(4)(a) to (c) FLA); 3. evaluating each party’s future needs as set out in ss 75(2), 79(4)(d), (f) and (g) FLA, so far as they are relevant; 4. the court be satisfied that, in all the circumstances of the case, it is just and equitable to make the orders (s 79(2) FLA). 1.1.1 What is property? Property is broadly defined by s 4(1) of the FLA. It includes assets that have been acquired by either or both parties during the marriage. Sometimes marital assets include assets which were owned by either party prior to the marriage and which have been used for family purposes during the marriage. There are also financial resources that need to be taken into account such entitlements to benefits from a family trust. Superannuation entitlements are now included as “property”. A Practitioner’s Guide to Family Law 13 Each party has a duty to the court and to the other party to give “full and frank” disclosure of all information relevant to the case (Family Law Rules 2004 (Cth) (“FLR”) r 13.04). Division 13.1.2 of the FLR sets out the duty of disclosure in financial cases. A Form 13 (Financial Statement) must accompany an Application for Final Orders if property orders are sought. Below is a list of the basic information you will need from your client in order to identify the property, liabilities and financial resources of the parties. any current cases or existing orders about family law / child support / domestic violence / child welfare; any financial agreement made between the parties; any bankruptcy proceedings; any proceeds of crime order or forfeiture application; and whether any third parties should be joined. In relation to children: names; dates of birth; who they live with; education; and health. In relation to income and assets: gross weekly income; child support payments (paid or received); real estate (address/es), percentage of share and value of share); motor vehicles (make, model, value of share); furniture and effects (value of share); funds in banks, building societies, credit unions or other financial institutions; interest in any business (estimated gross market value of share); investments (shares etc); life insurance policies; interest in any other property; interest in any trust fund; 14 A Practitioner’s Guide to Family Law any significant disposal of property in the last 12 months or the 12 months prior to separation; and superannuation: name(s) and type of plan, gross value of each interest. In relation to liabilities: mortgages; credit / charge cards; loans (including personal loans or other loans from financial institutions as well as any loans from family members and friends); hire purchase / lease; and income tax. If there is no agreement as to the values assigned to the assets and financial resources, it may be necessary to use an expert valuer: see Pt B, Ch 7.6 of this Handbook. 1.1.2 Types of contribution Section 79(4)(a) – (c) sets out the matters to be considered with respect to the parties’ contributions. The main types of contributions that are taken into account are: direct financial contributions to the acquisition of any property of the parties or either or them (for example, paying part of the deposit on a house); direct financial contributions to the conservation or improvement of any property of the parties or either of them (for example, repairs and renovations to the structure of the house); indirect financial contribution to acquisition, conservation or improvement of any property of the parties or either of them (for example, one party pays the bills which enables the other to pay the mortgage); non-financial contributions (for example, wife carries out homemaker duties which enables the husband to concentrate on business activities); and contributions made to the welfare of the family (for example, homemaking and parenting).
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