Family Law Practice Manual 5th Edition

 

Note – Current Internet Edition is found at www.smokeball.com.au

Peter Szabo 1 October 2012

 

Note also that the 6th Edition hard copy is to be published by the Leo Cussen Institute during the first half of 2013

Enquiries please email Peter Szabo

 

Authors Peter Szabo, Stephen Winspear, Rob McBain

This site is maintained and written by Peter Szabo. Comments are his unless otherwise indicated.

Last Update 5 July 2007                       Email the Authors
 

                                    Comments on this page are by Peter Szabo and do not necessarily refect the views of the other authors or contributors

FOR THE UP TO DATE PRACTICE MANUAL ON LINE GO TO www.smokeball.com.au

Peter Szabo

5 February 2009
 
Defacto Relationships Property determinations come under the Family Law Act from 1 March 2009.

 

The law only applies to parties who separate on or after that date.

There is provision for “opting in” to the jurisdiction, which gives the benefit of splitting superannuation, not available under State Law.

Usually one party will not want to do that. Consent must be in writing, and certified by lawyers (S86A)

 

Download Summary of De facto property – Paper by Justice Gary Watts (December 2008)

 


 

Index for this page

Commentary
Booklaunch details
The Authors
Interstate Contributors
Practice Manual Internet Edition
Updates
Corrections to Manual
Summaries of Important Sites

  


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Commentary

The Fifth edition of the Practice Manual was released on 20 December 2004. It has been renamed the Family Law Practice Manual as against the Family Court Practice Manual, as it covers the Federal Magistrates Court as well. The official launch took place at the Leo Cussen Institute on 11 February 2005. Copies can be purchased from the Leo Cussen Institute - Tel:  03 9602 3111. The Manual has been expanded  from the 4th Edition to include commentary on Federal Magistrates’ Court practice. Its format was also changed from loose leaf to bound, with updates being published on this site. An Internet Edition is now available which will enable you to keep the Manual up to date. The first 5 chapters are available here at no cost. See Below.

The Forward was written by Chief Justice Diana Bryant. The following parts of the book are also available for download in PDF Format:

Forward, Preface, About the Authors, and Index.

The Manual was officially launched by Justice Linda Dessau on 11 February 2005 at the Leo Cussen Institute. Stephen Winspear's speech in reply to Her Honour's remarks can be downloaded.

Photographs from the Launch

Justice Dessau with the Authors
A visual History of the 5 Editions

The blue First Edition (1985) and green Second Edition (1989) were bound versions. The Third Edition (1993) and Fourth Edition (1998) were loose leaf, on the basis of updates being released on line, which was the case. The Fifth Edition returned to a bound version, given the ease with which updates are possible, and with the release of the Internet Edition.
 

In writing this edition of the Manual, I have teamed with Stephen Winspear or Moores Legal and Rob McBain of Rob McBain & Associates.  I am grateful for their input as, quite frankly, without them this edition would never have seen the light of day.

Inevitably, changes in the Family Court continue unabated and two updates are already available.  The first changes (December 2004) were mostly cosmetic. The second batch (March 2006) also mainly incorporated more changes to forms.  The third update incorporates the Shared Parenting regime. This time there are some significant changes to the text in the manual itself. This is covered in the “updates pages”, referred to below, which are  available from the Leo Cussen website and also from this site.

I am leaving the commentary and details regarding the Fourth Edition of the Family Court Practice Manual on this website for historical  reference..  Much of the commentary therein is still relevant to day to day practice in any event.  Those comments are being incorporated where relevant in the Internet Edition as and when I get to them.

Steve, Rob and I would be grateful for any constructive criticism with a view to improving both the Manual and our general Family Law knowledge.  Our email addresses set out immediately below.

The Authors

The links on the authors will take you first to their CV, the next will send an email, while the firm name link will take you to that website. As indicated above, whilst Steve and I barrack for the right AFL Football team,  the comments on this site are mine unless otherwise indicated.

Peter Szabo -  pszabo@mooreslegal.com.au
Moores Legal
Stephen Winspear - swinspear@mooreslegal.com.au
Moores Legal
Rob McBain -  rmcb@mcbainassociates.com.au
McBain and Associates
 

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Interstate Contributors

Although written for Melbourne conditions by Stephen Winspear, Rob McBain and me, the Manual in fact covers the Nation. Thankfully, there are little differences between States. Nor should there be - in theory! Where there are differences, I wish to thank the following practitioners for their help:

Geoff Wilson - Hopgood Ganim - Queensland. Email gjw@hopgoodganim.com.au
Warwick Jones - Jones Mitchell -Queensland. Email info@jonesmitchell.com.au
John Barkus and Paul Doolan - Barkus Edwards Doolan - NSW . Email barkus@famlaw.com.au
Chris Crowley - Crowley Clifford Simpson - ACT. Email cjc@crowleys.com.au
Jill Miller - Norman Waterhouse - South Australia. Email jmiller@normans.com.au
David Burrell - David Burrell and Associates - South Australia - Email lawyers@dbcodivorce.com.au
William Carr - Carr and Associates - Perth. Email famlaw@carrco.com.au
Michael Foster - PWB Lawyers - Hobart - Email mfoster@pwb.com.au

.

Practice Manual Internet Edition

The first five chapters are and will continue to be available at no cost. The remaining 18 chapters (total 23) are being developed and the full version is available for on line use as of  23 October 2006.  It incorporates the three Updates referred to above. The new text is shown in green type. Comments on and expressions of interest in the Internet version would be appreciated via email.

The main features of the Internet Edition are:

Updates to Hard Copy Manual - The Manual is now totally up to date with Update 3.

Note: These updates are incorporated into the Internet Edition. Eg in Chapter 1 the green text indicates the updated material.

Update one December 2004
Update Two - March 2006
Update Three - August 2006

Comments on Update 1

Penalty interest rate changed to 10.75% (Rule 17.03)
Rules incorporate changes for forms to allow for third party orders, and changes have been made  to Form 12 made. Otherwise there are  not many changes affecting day to day practice. They are in any event  incorporated in the Internet Edition.

Comments on Update 2:

Attachment 1A in Chapter One has been updated -Attachment 1AU -  for Victorian Practitioners to take into account the changes to the Legal Professsion Act 2005. See Chapter 1 Internet Version. The changes here affect Chapter 1 Page 3. The green text shows those changes. Addtional commentary has been included for other States.

Comments on Update 3

Shared Parental Responsibility  - This incorporates the changes brought in by the Shared Parental Responsibility Act effective from 1 July 2006. Most of the forms have changed, but these are almost all cosmetic and relate only to the new terminology. Make certain you use the current forms. They can be downloaded from the Family Law Courts site. All forms for both the Family Court and the Federal Magistrates Court are available in the one place. For those who use the Lawperfect precedent forms system, their forms are updated as part of the service. My view? Buy Lawperfect.

For a summary of the New Terminology - download PDF file. You should also read Section 4 of the Act  which now contains all the new definitions. A useful summary of the changes can be found on the Federal Magistrates Court Site. Most Family Lawyers would have by now attended the National Seminars on the topic sponsored the the Law Council of Australia. Another reminder for you to become a member! The papers from that seminar can be ordered on line from that site.

Also noted in that summary are:


 

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Corrections/Omissions from Hard Copy Manual

Missing Attachment in Chapter 5
On page 51  reference is made to the Affidavit as to welfare of children. This can be obtained from the Internet version of the manual.
Download Attachment 5J Affidavit as to welfare of Children.

Page 70 - Correction. Reference is made to Attachment 6BC. It should be to 6AC. The document is the affidavit by solicitor. True that the material is hearsay, but there is no one to oppose the material being presented.

Misssing Attachement in Chapter 12

On Page 517 there is Attachment 12AD Example Affidavit of Treating Doctor - the affidavit part did not make the final book.
Download pdf (from the 4th edition of the Manual) 12AD Affidavit of treating doctor

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Summaries of Important Family Law Sites

My first summary is of the Child Support Agency Site. I intend providing similar summaries for the Family Court Site, the Federal Magistrates Court, and Relationships Australia. If you are aware of other sites of interest, please email me.

Child Support Made Easy - The Child Support Agency Site

Now that I have your attention,  I confess - Child Support is not easy. The Government has done its best to complicate it. That said., there is much on the Child Support Agency Website which will help you through the maze.

Link to Commentary on CSA site

A hint - if you read The Guide and the Fact Sheets you will be well on your way to understanding Child Support.
Reforms are in the winds. Thanks to Peter Mackey for helping me finding the fact sheets on those changes. (not, as you would expect, on the CSA site) but at the Department of Families, Community Services and Indiginous Affairs

Buying the Kids

I take this opportunity of expressing  my views on the fact that the level of child support is directly affected by the amount of contact the payer has. This means that in many cases, parents are forced by the Government to consider not what is in the best interests of the children, but how much is paid or received. "Deadbeat" fathers are encouraged to throw in their jobs to pursue shared care on separation, having never before shown any interest in the children. Mothers are forced to deny extra time even to a good father, fearing a significant drop in child support. Are the motives correct? There has to be a better way. Regrettably, I believe the proposed changes to Child Support (over the next 2 years) coupled with the introduction of the presumption of Shared Parenting (July 2006) will further highlight this issue.
These dynamics will make for more difficult negotiations between parties and their lawyers.

For more details refer to The Guide - Level of Care and its impact on an Assessment.
 

Victoria Legal Aid

How to get legal aid, self help information, in particular regarding Intervention orders, are all available on this site.
Well worth knowing what is on this site and getting your clients to have a look as well.

Links to other Legal Aid Sites can be found on the Family Law Courts Site. That site also lists Law Societies and a link to finding specialist family lawyers.

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