If you are reading this… the latest Practice Manual details are at www.flpracman.com.au   Peter Szabo October 2008
 

 Family Court Practice Manual 

4th Edition

Updates and Other Family Law information

 Updated and maintained by the Author, Peter Szabo
Last update 4 May  2004.
*** Includes updates to Forms following Superannuation changes ***

Purchase Manual
 

Important Notice

The Fifth Edition of the Practice Manual is planned for release in  the second half of 2004 given the new Rules coming into effect as of 29 March 2004. it is being re-written primarily by Steve Winspear  and Rob McBain, both accredited specialist Family Lawyers  in Melbourne, with many years experience between them. I am also having the text reviewed by experienced interstate practitioners to obtain comments on any differences in approach. This was done with the 4th edition.
 

As can be seen above - the 5th Edition was finally released on 20 December 2004


Much of the commentary on this site is now out of date. However, the Tax and Family Law Articles as well as the Superannuation Update are current and have been kept up to date. I am now putting my efforts into the Marshalls and Dent website, which should be referred to for updated articles and comments. Simply put, apart from these articles, I have gone into temporary retirement as far as writing articles, books etc are concerned.  After 28 years in the field, I confess to becoming disillusioned with the constant changes we have to put up with..

I have real concerns about the Rules, particularly the possible impact of Rule 11.02  - Failure to Comply with a legislative provision or Order. Read it. Read it again, and carefully, and what you have to do to "fix things up". Be scared by its possible impact it may have on you and your fees.  Further, whilst such a provision may be appropriate in the commercial causes list of a Supreme Court, the Family Court deals with families, not unrelated parties. They have to live with each other after the litigation, unlike in most other jurisdictions. To introduce such measures in "the Helping Court" for people going through the trauma of separation is in my view totally inappropriate.  It is hardly a concilatory measure and will encourage lawyers to advise clients to "bash the other side" for costs. Hardly in line with theconcept  of "disengaging with dignity, as the parties are parents for a long time". Think about it. I hope that responsible practitioners will be flexible and constructive in their interpretation of this rule, at least until after the Conciliation Conference has taken place. Similarly, I hope the Court Registrars will be sensible in not forcing lawyers into seeking costs. I am fully aware that the powers that be are instructing Registrars  to pursue costs orders, particularly against lawyers where possible. I am very troubled as to the impact this will have in inflaming already emotion charged proceedings. Not a good move.

In my view the pre application protocol will substantially increase costs. You guessed it, we the lawyers will be blamed for this. I also believe that the huge proliferation of brochures is "information overload" and yes, it will cost clients to have lawyers provide them and explain what it is all about. So much for quickly turning over files.

The new form?. Yes, well once again they are plagued with problems. They  do not fax well. They are full of instructions and are difficult to read. Too much information yet again. Is the shading necessary? Hopefully lawyers will be allowed to prune their precedents of shadings and much of the commentary to save a few thousand trees a year. Word processing is great for removing unwanted text. So why not let us do it? Many forms (Form 8 Notice of Address, Form 10  Notice of Discontinuance) can easily fit on one page. So why force 2 pages? Greenies, where are you when we need you on the Rules Committees? I doubt that anyone at the "coalface" had an imput, but I might be wrong. .

The new Form 13 is in fact similar to the old Form 17 and hence my commenary Completing  Form 17 still relevant and up to date. The only thing is the information is in slightly different places. Unfortunately, it seems that despite Hickey' Case  Part J of Form 13 says that you MUST attach a completed Superannuation Form for each superannuation interest if you are seeking an order for property settlement. Not interest split - property settlement - ie in all cases! Madness.

I intend to ensure that the first 3 or 4 Chapters - the First Interview, Pre Action Procedures, Choice of Court and Divorce Applications - are made available on line at no cost. When they become available I will provide links both here and on the Marshalls and Dent  site. Check under the Family Law tab.

I would appreciate any comments by email to pszabo@mdlaw.com.au
 

Peter Szabo
27 April 2004


 

           FEATURE ARTICLES

Practice Manual Chapters 1 to 3 available at no cost fully on line

Text on how to complete Simplified Form 17 with superannuation information  fully available on line 

Articles of  Interest to Legal Practitioners - Summary

Tax and Family Law summary paper available fully on line updated to May 2004
The new Superannuation regime explained - updated to April 2004

Information for Clients - Marshalls and Dent Family Law Notes  available on line or in PDF format

        PRACTICE AND PROCEDURE - SUMMARY OF RECENT DEVELOPMENTS

 

 

 

July 2003

Penalty interest rate 9.55% from 1 July 2003

commentary

June 2003

Full Court Case of Hickey simplies many small superannuation cases

commentary

January 2003

The new Superannuation Regime - Forms Changes and requirements

commentary

August 2002

Case Management Directions issued - Practice Direction 3

commentary

July 2002

Affidavits in Interim Applications Banned in Pilot Project (Vic, Tas) 

commentary

July 2002

Increase in filing fees, Penalty interest rate effective 1 July 2002

commentary

July 2002

Minor changes to Forms 36, 51 and 55

commentary

January 2002

Child Support cases, other Summary proceedings must be issued in Federal Magistrates Court

commentary

October 2001

Form 17A to be replaced by Case Summary document

commentary

October 2001

Case Conferences Start in Melbourne (after Sydney trial)

commentary

October  2001

New Scale of costs introduced - $160.00 per hour inclusive of GST

commentary

30 July 2001

Federal Magistrates Court Rules come into operation

commentary

September 2001

Undertakings to file Marriage Certificate to be in writing (Melbourne) 

commentary

July 2001

Interim Affidavit for child welfare matters updated

commentary

January 2001

Form 8 reinstated for interim orders in certain cases

commentary

January 2001

Parenting Orders - responsibilities must be set out in orders

Commentary

January 2001

Joint Divorce Applications - no appearance (with/without children)

Commentary

January 2001

Minor changes to Forms 3, 12A, 17

Commentary

December 2000

Binding Financial Agreements replace S86, S87 Agreements

Commentary

November 2000

Electronic Filing of Court documents - Pilot Project commences

Commentary

July 2000

Federal Magistrates Court Commences

Commentary

July 2000

Divorce filing fee halved in Federal Magistrates Court

Commentary

July 2000

Subpoena Forms 36, 37 and 38 merged into one Form 36 

Commentary

July 2000

Form 3 replaces Forms 7 and  8, Form 17 Simplified.

Commentary

May 2000

Melbourne - Leave required to file documents on Interim hearing date

Commentary

December 1999

Costs letters to be exchanged - ie given to the other party's lawyers.

Commentary

June 1999

Forms 12A and 17A changed

Commentary


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Index of information on this site.

Adobe Acrobat PDF reader - free download (needed to view documents published on the Internet)

Introduction
Practice Manual - Index, preface, forward and table of precedents.
Chapters 1, 2 and 3 available in full  in PDF format for downloading.
Chapters 1, 2 and 3 on line for full viewing
Practice Manual Book Launch at 8th National Family Law Convention in Hobart.
Reviews of the Practice Manual in Law Society Journals.
Updates and corrections to the Manual.
Electronic Filing Pilot Project commences from 8 November 2000
Interstate Registry  differences.
Other publications by Peter Szabo
Marshalls and Dent Client Notes
Articles and Papers
Other information for clients
Summary of Tax and Family Law Implications available        ** A Must read for all Family Lawyers **
Other Family Law Sites of Interest.
 


Adobe Acrobat PDF reader - free download (needed to view documents published on the Internet)

Introduction

This site is personally maintained by me. No frills - straight information on Family Law Practice and Procedure. Regular  updates, corrections and comments  regarding the 4th Edition of the Family Court Practice Manual are set out below. I will also be putting general family law information here as well, with links to other sites of interest to Family Lawyers. Hopefully, you will bookmark this site as the starting point for anything of interest regarding Family Law in Australia.

If you have any comments, criticisms, or requests for inclusion in the Practice Manual, please email mewith those suggestions.  If you do not  have a hard copy of the Manual - this way please!  If you want to see what it looks like in Acrobat pdf format see below. The first 3 chapters are fully available for downloading.  The way updates will be dealt with is to allow you to print them out from here, and to insert them in the appropriate tab in the hard copy version of the manual. When sufficient pages require changes, replacement pages will be sent out, at modest cost. Remember, the Leo Cussen Institute is a non-profit, continuing education organisation. The success of this updates page on the Internet depends on input by you, if you are aware of anything of interest. General comments on practice and procedure will be set out below as well. Keep the information coming in!

The first three chapters of the Manual are also  available in HTML format for viewing IN FULL ON LINE. I am continually  updating this material by adding  links to the Family Court site, legislation and other information of interest to Family Law practitioners.  Let me know if you are interested in further developments. Similarly,  a CD rom version is in the making. Again, if you are interested in this project, let me know via email.

Please note that since March 1999 I have been  with  Marshalls and Dent.  My postal address is Level 13,  459 Little Collins Street Melbourne 3000. Phone 03 96705000. Email can also be sent to me at Marshalls & Dent at pszabo@mdlaw.com.au

Peter Szabo
 
 
 

Index, preface, forward and table of precedents to the 4th Edition of the Practice Manual.
 

The full index, table of precedents, introduction and preface  is provided as a pdf file. Read with Acrobat reader. If you do not have the reader, download the reader, free. This information will give you a good idea of what is in the Manual, if you have not had the opportunity to see it. The pdf file will print out high quality pages, and are relatively large - this file being approximately 300k.

Chapters 1, 2 and 3 available in full  in PDF format for downloading.

    The entire first three chapters are available for downloading absolutely free. Because of the size of the files, they have been broken up into four parts.
    Chapter 1 The First Interview, - (Text and precedents) - approximately 175k.
    Chapter 2  (Text) - approximately 96k
    Chapter 2 (Precedent forms and letters)  - this is relatively large  at 782k. It takes 6 minutes to download with a 56k modem.
    Because of the size, please email me direct if you want this section for downloading.
    Chapter 3 (text and precedent forms and letters) approx 175k.

Despite the time it might take, the second portion of chapter 2 is well worth getting. It will show you how the manual looks. Printouts from the PDF file downloaded will maintain the layout and structure of the hard copy of the manual.

The remaining chapters (4 to 9) must be purchased. See the index and table of precedents for what is in those chapters.

A CD rom version of the Manual is being prepared. If you are interested in this project, please let me know via email.

Practice Manual Book Launch at 8th National Family Law Convention in Hobart
 

The Chief Justice, Alistair Nicholson officially  launched the book at that Convention on 25 October 1998. Speeches were given by Michael Taussig, QC of Barker Gosling, the Chief Justice, the author, and Lyn Slade from Leo Cussen.

Photo of the Chief Justice, the Author and Michael Taussig, QC at the launch.
 

Reviews of the Practice Manual in Law Society Journals.
 

 

Court Forms on disc no longer provided by Family Court.
 

Court approved software is no longer to be provided to facilitate the production of court documents. This is likely to mean an amendment to Order 2 Rule 5. See references to production of forms using court approved software in Chapter 2 page 2-2 and Chapter 4 page 4-2. On page 2-2 the third paragraph refers to using that software to prepare a form 4 that is deemed to comply with the rules. This will not be possible!  At the top of page 4-3, the sentence "There is a lot to be said, therefore, for purchasing the court produced discs and learning how to use them." should be deleted from your manual. What are your options for producing the court forms on your computer? There are various products, the two major ones I am aware of being Lawperfect and Bing. For further information about Lawperfect, contact David Hill on (03) 98738033. For information about Bing  telephone Emmanuel Theodosiou on 07 33669266.

Interest Rate Changes - 10.1% from 1 July 2002

 
The relevant interest rate for Order 40 Rule 1 was set at 10.1% effective 1 July 2002.  Page 4-39 of the manual needs to be altered accordingly, as do pages 9-8 and 9-21. If using precedent 9F do not forget to alter paragraph 2 there from 14% to the appropriate rate. See also the Updates Page.

 

Increase in Family Court Filing Fees from 1 July 2002.
 

Increased filing fees apply as from 1 July 2002. This is in line with Government policy to increase these fees every two years.
The new rates for the main applications are:
Forms 3 and 3A - $172.00
Form 4               - $574.00
Hearing Fee        - $344.00

See Fees and Costs of Proceedings in the Family Court

Federal Magistrates Court Fees Lower

The filing fee for a Form 4 is $273.00 in the Federal Magistrates Court. For reasons set out below, most divorces should be filed there from now on, to take advantage of the lower fee, unless the client is entitled to a waiver of the filing fee. (But note the commentary on advantages/disadvantages of filing in the Federal Magistrates Court).  The Fees for Form 3 and 3 A are $109.00 in the Federal Magistrates Court. Not quite half, but cheaper even so. The setting down fee is $329.00 - no real saving here. For reasons set out below, take care in choosing whether to issue in the Federal Magistrates Court.

GST is NOT applicable to these fees.

For a comparison of fees between the Family Court and Federal Magistrates Court see Fees on the Federal Magistrates Court Website.

Do not forget that in many cases, your client is entitled to a waiver of these fees. See the commentary on this in the Internet Version of the Practice Manual.

Note also that the Hearing fee may be refunded if for example, the matter is resolved prior to the hearing date.

For full details and to keep an eye on updates, see Fees and Costs of Proceedings in the Family Court.
 

Form 3 replaces Forms 7 and 8 from 1 July 2000.
 

Form 3 has replaced Form 7 and 8 for Final orders and Interim Orders filed similtaneously. Initially, the intention was for Form 3 to also replace Form 8 totally, with the new form also being used for further interim applications filed after the Final orders application was on foot. This however, caused some confusion with several Form 3 documents being filed along with the accompanying information sheet. Hence the Rules were amended in January 2001 to allow for separate interim applictions to be filed using a Form 8 - see next section.

Form 3 is a combination of the two forms. The Form can be used in both the Family Court and the Federal Magistrates Court. See the explanatory notes on the Family Court Site for details of the changes. The filing fee for the Form 7 has been applied to the Form 3.  Filing fees for applications in the Federal Magistrates Court are half those in the Family Court. See the commentary on the Federal Magistrates Court below.

The format is a simplified version of the replaced Form 7. Some detail has been trimmed from the Form 7, which is now reproduced in a document termed an Information Sheet. The Form 3 allows for interim orders to be set out along with final orders. However, if you seek further interim orders at a later stage, a Form 8 must be used, not a form 3 with interim orders only.   A PDF version is obtainable from the Family Court site. See the Updates Page for commentary on how to complete the new forms
 

Form 8 for stand-alone interim applications as from January 2001

In January 2001 the Rules were again amended to provide for the use of a Form 8 where interim or proceedural orders are sought. (See Order 3 Rule 3). Interim orders may be included in a Form 3 -  Order 8 Rule 3 - ie, when seeking both Final or Interim orders, they can be set out in the one Form 3.  Thus the confusion of using a Form 3 for only interim orders and having to file an information sheet with it has been removed. So the procedure now is:
 

      • Final Orders - Form 3
      • Final and Interim Orders sought similtaneously - Form 3  - instead of the old Form 7 and Form 8 - one document for both orders.
      • Interim Orders not sought at the time final orders are sought  - Form 8 (but must have a Form 3 final application pending)

Interestingly, Order 8 Rule 3 uses the word "may" - so it is possible to file a Form 3 for final orders and a Form 8 seeing interim orders similtaneously. Not very cost effective, but permissible.

Affidavit - Interim Child Welfare Matters amended effective from July 2001

This much hated form has finally been amended, to sensibly allow typing across the page. It becomes operational from 2 July 2001. A copy of the proposed form is available from the Family Court Site. The headings have also been changed and rearranged a little from the version being replaced. My commentary on the poor layout of the old form is set out in the Family Court Practice Manual - chapter 8, page 8-7, where I suggest the pro-forma affidavit should (amongst other things) be set out across the page. Attachment 8B of the manual provides an example of my suggested layout. The new format from the court seems to be a lot closer to my version. I will providean updated version of attachment 8B on this site soon.

Form 17 Simplified - introduced from July 2000.
 

Form 17 has been simplified. The old form could be used for 3 months from 1 July 2000. The main change is that if no orders are sought regarding spousal maintenance or child support, then those tedious details regarding food, clothing and other weekly outgoings are not called for. For maintenance/child support cases, there is a page setting out these details to be completed. It is similar to the outgoing page from the Form 12 document. It is improved by having a totals column. There are fewer pages as well. This was achieved mainly by moving the notes to the back and not counting them as pages, and by changing the summary on page two from half a page to two lines.

The simplified form is in test mode as I understand it. Minor changes were made in early 2001. Unfortunately, apart from fixing up a glaring error in item 9, (where pensions were left out and personal exertions was included) nothing substantial has changed. The commentary incorporates the minor changes. Any further comments on it would be welcome. The complete text on how to complete the Form is now available on the Updates section of the Practice Manual.  If you have not purchased the Practice Manual, you can still get this and the other updates free on this site. But - buy the Manual for all of the other information.

New Form 36 replaces old forms 36, 37, 38 from 1 July 2000. Further change to Form 36 July 2002.
 

A new Form 36 now incorporates old forms 37 and 38.  From 1 July, forms 37 and 38 have been abolished.
The updated Form 36 in pdf format can be obtained from the Family Court Site.  It is now in the familiar "Boxes" format.
The commentary on theUpdates Page of  the Practice Manual has been updated.

A Further minor change to Form 36 was made effective 1 July 2002. The heading now includes the name of the person on whose behalf the form is filed. Ensure that you use the correct form and download a PDF version from the Family Court website.

Other Form Changes and Omissions - Forms 29 and 30 changed. Forms 15B and 15D omitted.

 
Other forms being changed are forms 29 and 30 (Consents to Act as Next Friend), being merged to one Form 29, and Forms 15B and 15D (Third party notices) being omitted.These forms are not discussed in the Practice Manual. See the Family Court Site for details


Form 55 Changes - Notice of Ceasing to Act

        Operative 1 July 2002. Now have to include information so that the Court is advised of the last known details of the party the
                                lawyer has cased to represent. Ensure that you are using the most recent form - download form 55 from the Family Court Site.
 

Leave required to file documents at Form 3 interim hearing return dates (Melbourne)
 

As of May 2000, leave is now required in the Melbourne Registry before any documents can be filed on the day of hearing for Form 3 interim applications. Previously, such documents could be blackstoned and handed up to the court on the day. The new procedure now means that at the callover, you need to ask for leave to file. If granted, the court orderly endorses the required documents, which are then taken back to be put through the filing counter procedures. If you forget to do this, there will be delays when you are called on during the day, as the procedure will then require the standing down of your case while this takes place - provided the court does not lose patience with you in the meantime. Another change to make life easier for practitioners? Where possible, avoid the new system and file documents earlier. Otherwise, be ready for some legwork.

Costs letters exchanged as from 6 December 1999.

 
As you know, you are to provide your client with an estimate of costs of proceedings to date, and an estimate of the likely further costs to the final hearing of the matter. This is required at the first return date (the Directions Hearing), at the Conciliation Conference, at the Pre Hearing Conference, and for the Final Hearing. The exchange of letters happens at each of these events. There are sound commercial reasons for advising your client of the costs incurred, so that they can make informed decisions on the outlay they make for litigating compared to the likely outcome. The rules now provide for that costs letter not only to be given to your client but actually exchanged with the other party's solicitor (or party if unrepresented). The wisdom of doing this quite frankly escapes me. It is all very well for your client to know this detail, but to give this to the other party in my view may only encourage ratbag litigants to keep going with costly litigation, knowing fully how much damage they are inflicting on their spouse. I sincerely  hope the Law Council takes this issue on, in the interests of our clients. If you have any comments on this issue, please let me know by email.

In the Manual, see chapter 5, pages 5-41 and 5-42, and attachments 5 G and 5 J for commentary and examples of costs letters. Be aware that you will also have to include the source of the funds paid to you. Again, the logic behind this new requirement eludes me completely. Interestingly, this information was specficially called for in Item H item 12 of the Form 17 replaced by the simplified version during 2000  - see Attachment 5B. In the simplified version, there is now only a "catch all" item 48 termed "other personal liabilities". Diligent lawyers will no doubt  include the liability for legal and other professional fees there. Still, why is this extra potentially inflammatory information required?
 

Federal Magistrates Court Opened on 3 July 2000
 

This court can deal with divorces, most children's matters (including contested residence applications), and property proceedings dealing with property less than $700,000.00 gross value. See the link Jurisdiction on the FMS site. The forms to be used are the same as the Family Court - Form 4 remains the same, and tForms 3 and 3A will be accepted  The simplified Form 17 (this link is to the Family Court site "Forms" area) is likewise able to be used. The court would prefer practitioners to use the simpler universal Application form designed specifically for that court.

Filing fees are significantly lower than in the Family Court. For a Divorce, it is $273.00 compared with $574.00. Therefore, you should no longer institute divorce proceedings anywhere other than in the Federal Magistrates Court. In Melbourne, the documents are filed in the Family Court Registry, and are processed in exactly the same way as for the Family Court.

Divorces in the Federal Magistrates Court

The Federal Magistrates Court has delegated the task of dealing with Divorces to the Family Court Registrars, who will then hear the applications. The end result is that divorces are dealt with exactly the same way as before, except that the filing fee has been halved. Sounds a bit like a comedy skit from that well known series, "Yes Minister". Take advantage of the costs savings to your clients. The practice is expected to be the same in other States, where Federal Court Magistrates are available. Some States (Tasmania for example,) are not so fortunate, with the two courts in different cities.

Practice and Procedure.

Practice and Procedure is supposed to be less formal than the Family Court. I will insert further comments here as time goes on. Any experiences from readers would be appreciated. Please email me with any details.

Filing Fees:

They are less than half the fee for divorces, ie $273.00 as against $574.00. They are cheaper than in the Family Court for other proceedings. See Filing Fees for more information.

Concerns with proceedings in the Federal Magistrates Court ("FMS").

It is early days, but I must sound a word of caution. Unlike State Courts of Summary Jurisdiction, an appeal from a decision of the FMS is NOT a new hearing. It is an appeal on a matter of law - to the FULL COURT of the Family Court. This may constitute one judge, not three, depending on the complexity of the matter. So be careful when you elect to go there - while the approach of the court may be more informal, cheaper on filing fees, and quicker to obtain a hearing, if a mistake is made or your client thinks that this is the case - remedying the situation is not easy. Divorces are not a problem. They are rarely contested, and clients often do them on their own. Fortunately, at least in Melbourne, both the Family Court and the FMS will have access to the other file, but not ready access. Hence, while both courts will have access to the ancillary documents relating to any other proceedings, a marriage certificate must be filed in each court. The costs scale for divorces in the FMS is between $45 and $65 dollars less than in the Family Court - so you need to have good reason to file in the Family Court, otherwise the client could justify a lower cost charge. The problem on costs is exacerbated by the fact that composite fees apply for ancilliary proceedings.

The other issue I have found is that the Family Court (certainly in Melbourne) is shunting cases to the FMS. I have heard of divorces issued in the Family Court ending up there. Maintenance cases are being referred there by registrars who are unable to hear the cases, as are other cases where Judges are not available. I do not think this is a good situation. I would appreciate any comments on this issue by email.

At present, my recommendation is to file most divorces in the Federal Magistrates Court, to take advantage of the lower filing fee. Keep in mind the marriage certificate hassle - ie need a copy for each court if flitting between them for various applications. Once listings procedures are made clear, apart from having to go to a different court, there is no great difference.

Federal Magistrates Court Rules operational from 30 July 2001

The FMS Court rules came into effect as from 30 July 2001. Broadly, you can use the same documents as in the Family Court, but you are encouraged to use the forms as prescribed for that court. Mostly there are little differences apart from the court logo and heading. I will put further comments here once I have analysed the rules further and compared them with the (ever changing) Family Court equivalent documents. In the meantime check out the following links:
 

The forms can be downloaded from the above links in PDF format and completed by hand. Significantly we will be able to file an affidavit of financial circumstances in place of a Form 17. Stand by for a precedent on this one for the pensioner seeking spousal maintenance - big saving of pages. Email me with comments please!

An article by Adele Byrne Registrar Federal Magistrates Court was published in the September issue of the Law Institute of Victoria. The article is reproduced on the Marshalls and Dent Site under Recent Articles.

The court is certainly less formal than the Family Court. If you cannot get your divorce through in that court, you have really done something wrong.  There is a different scale for actions in the lower court. Composite fees have been fixed for applications to a certain stage.

Further information:

See the Commentary on the Implications of the Federal Magistrates Court on the Family Court site, and the information on the Federal Magistrates Service web site.
 

Court outcomes forms changed as from 22 November 1999
 

The Court provides various outcomes forms to be completed on the Bar Table. The form has been altered slightly as from 22 November 1999. Here is a copy of the new form in pdf format.

Interstate and Registry differences

There must be other differences! If you find that your particular registry does things differently/better, please share that knowledge with your fellow practitioners. Contact me by email. Those details can then be added to this page. Regrettably, little information has been forthcoming.
 

Dandenong Registry:

The requirement to enter documents in the court computer system (Blackstone) is not rigidly adhered to. You can file documents from the bar table, at the first return date of interim applications. However, you cannot pay filing fees from the bar table.  See commentary on what the rest of us are required to do at page 4-2.

There is no requirement to complete the Outcomes Sheet for Procedural Orders (Attachment 9I) - and again, the rest of us (in Melbourne at least) have to abide by what is set out on page 9-16 of the Practice Manual.

The Dandenong Registry is now having all final defended hearings transferred for hearing at the Melbourne Registry. Interim and Directions Hearings will still be dealt with in Dandenong. The long term survival of the Registry must be in doubt.
 
 

Electronic filing of Court Documents - Pilot Project undertaken in Melbourne from 8 November 2000
 

The ability to file court applications electronically is now possible - at least for 5 firms in Melbourne and the Victoria Legal Aid Office. The pilot project testing this facility officially commenced on 8 November 2000. Those involved are:
 

      • Kenna Croxford & Co Barristers & Solicitors
      • Wisewoulds Lawyers
      • Maurice Blackburn Cashman Solicitors
      • Marshalls & Dent Lawyers
      • Taussig Cherrie & Associates Lawyers
      • Victoria Legal Aid

The Pilot project only accepted a Form 3 seeking final property orders. The lodged documents did not have the Family Court Seal on them when served. Practice Direction Number 2 of 2000 dispensing with this requirement was issued by the Chief Justice on 6 November 2000.

At this stage the Pilot Project only involves the named six firms. However, the Court plans to widen the project. Ultimately, all court documents will be able to be lodged this way. The benefits and time saving will be considerable, particularly for suburban and country practitioners, who will be able to transmit documents from their offices direct to the Court. The logical extension of the concept is for documents to then be served electronically on other practitioners. Again, the benefits will be significant. Long term, the court file could be searched electronically, from any computer terminal with Internet access. This would be subject to the user having the necessary security key, typed in when logging onto the site. The concept is similar to electronic banking.

The project involves the court issuing a secure digital signature to lawyers wanting to lodge documents electronically. The lodgment is undertaken using your Web browser (what you are using to read this...!). Certain standard information is typed into the relevant form on line, while documents such as the marriage certificate and Form 17 Financial Statement can be lodged in PDF  format. Other courts have allowed electronic lodgment of documents for some time now. However, the process of lodgment using a secure electronic signature is believed to be the first of its kind in Australia.

You may be served with a Form 3 application filed electronically. If so, you should receive a copy of the attached Practice Direction Summary, and the Notice to persons served with E-Filing documents. Any queries regarding the procedure should be addressed to Mr Gary Bowden, Registry Manager at the Melbourne Registry of the Court on 8600 4090, or Ms Heather Chapman, Client services Team Leader at the Melbourne Registry on 8600 3832.

The project was suspended after March 2001, pending a report from the Family Court as to its further operation. A widening of the project is expected after that report. As to when this will commence is uncertain.
 
 

Financial Agreements replace Section 86 and Section 87 Agreements.
 

Commentary to come soon. A seminar on this topic was presented to the Leo Cussen Institute on 6 December 2000. The speakers were Michael Taussig, QC, Miranda Milne, Olivia Nikou, SC, and me (Peter Szabo). My Powerpoint Summary is available on request pending my completing the commentary. The papers, including sample agreements, are available from the Leo Cussen Institute - telephone 03 96023111. My commentary will be in the Practice Manual Updates Section when completed. I have my concerns about these agreements. Pre Nuptual Agreements will not be dealt with, being beyond the scope of the Manual. I will modify the Section 87 Precedent in Chapter 9 to become a Financial Agreement, and comment on the differences. Be careful! Transfers of  property under Financial Agreements do NOT attract CGT rollover relief. For this reaon, only the most simple financial matter should be documented with a Financial Agreement. See my article on Tax Issues in Family Law Property Settlements.

Parenting Compliance Regime - requirement to set out obligations and penalties in Child Welfare orders
 

Section 65DA came into operation on 27 December 2000. It is the duty of the court to include in the order particulars of:
.the obligations the order creates,  and the consequences that may follow if a person contravenes the order. Any parenting order must now have the relevant details incorporated. Athena Sikiotis of the Dandenong Registry of the court has put together sample particulars, which were made available to the profession in Victoria in January 2001. Her summary of the  Parenting Compliance Regime is well worth reading and can be downloaded in PDF format. She was also good enough to also make available Sample Particulars (also available in PDF format for downloading) to be incorporated in parenting orders.  Attached is a (pdf format) sample of the way to word the order so that the particulars are attached to the end of the orders, rather than cluttering the main body of the orders with them For mine, its the way to do it.

The court has prepared a brochure setting out the penalties for breaking parenting orders. You are expected to make it available to your clients when parenting orders made.  Registries  are assisting practitioners by having material available at the bar table.

The requirement for setting out particulars is part of the Government's attempts to ensure that parties comply with parenting orders. For further information refer to "What's New" on the Family Court Site, which includes details of the legislation.

Joint Divorce - No appearance necessary even if there are children under the age of 18.
 

As from January 2001, parties jointly applying for a divorce can now opt not to attend court, even if there are children under 18. This is a signficant change to past practice, where either a lawyer or one of the parties needed to attend if there were children involved. The Divorce Kit - children is being updated, but until then the court is handing out a pamphlet and changed front page. The only change is to section B, where the option not to attend is set out, and is only to be completed in joint applications. The pamphlet advising of the change and page 1 of the Divorce application can be downloaded in PDF format from this site.

Minor Changes to Form 12A, Form 3 and Form 17

The introduction of Financial Agreements in place of Section 86 and Section 87 Agreements has necessitated a small change to Form 12A. The parts that have changed are items C, 14 and 15. Form 3 has only changed to fix up the boxes specifying whether interim or final orders are sought at the top of the form. I personally think the change is confusing. Instead of choosing Final Orders, Interim orders, or both, we have a choice only of final orders or both (interim and final). Does this now mean that every time interim orders are sought, the Form 3 has to also set out the final orders sought in the first Form 3 filed by you? I suspect it does. Oh well, supports my argument that all documents should be saved on your computer for easy updating.
The changes to Form 17 have been incorporated into the main commentary on completing Form 17. They involved fixing the error in item 9, and minor (and -  in my respectful view - inconsequential) changes to items 28, 34, and 46. Again, my views are set out in detail in the main commentary.

Undertakings to File Marriage Certificates in Melbourne Registry.

As of 3 September 2001 the below procedure in Melbourne changed - so that a written undertaking has to be given, setting out the reason why the certifcite is not available. The expectation is that the certificate will be filed within 2 weeks

The letter could for example state that:
 

      • You act for the party
      • You undertake to file the certificate within 14 days; and
      • The certificate is not in the possession of the client and
      • one is being obtained from the relevant authority.


Download the Notice from the Court regarding this development. Note that the directive applies to both the Family Court and the Federal Magistrates Court. It may well only apply to ancilliary relief, as reference is made to Order 8 in that directive.
 
 

New Scale of costs from 1 October 2001

The hourly rate is now $160.00 inclusive of GST. The scale now makes it clear that emails can be charged as letters. Photocopying is now 50 cents a page.

See the Family Court site - Costs of Family Law Proceeding Brochure
 
 

Case Conferences and Case Management Directions effective 1 August 2002
 

Having been trialed in Sydney and Melbourne, the Family Court by Practice Direction 3 introduced the new Case Management System throughout the the country, operative from 1 August 2002. Case conferences cover cases where a Form 3 is filed seeking final orders only, where the interim orders "mirror the final orders sought".   Further commentary is being prepared and will be incorporated here shortly. In the meantime, a summary of what to expect is set out below. Much of the commentary in the Practice Manual remains totally relevant, only that some steps have been brought forward. It is also strongly recommended that you download and read through the PDF version of the new Case Management Directions.

The Case Conference - the first court event

This provides general information and suggests ways to prepare for what will be the first major event most people have at the Family Court after documents have been filed. Parties are expected to attend an information session, usually on the same day and just before the case conference takes place. Bear this in mind when making arrangements to meet your client at court! The case conference is likely to last around an hour, and is held in the same area as conciliation conferences - ie not in a court room. It is held in a similar fashion to a conciliation conference, with the parties and their practitioners in attendance in most cases.

Case conferences will not always be allocated. Exceptions will be for example, where there is domestic violence, or one of the parties is overseas. See the General Comments on the Court Site. To assist in determing if a Case Conference is appropriate, the court has issued a Summary Sheet that must be completed with all Form 3 applications filed. A PDF version of that document is available here for downloading. It covers the exceptions referred to in the General Comments section.

Note that a Case Conference CANNOT be adjourned - if the parties cannot attend, and the conference is aborted, the case is referred to a Registrar's duty list for a directions hearing. Bad luck if the date is inconvenient! The court is rather rigid about this, no doubt due to lack of resources.

Case Summary Document

This section describes the document in question. It is designed to replace the Form 17A in property cases - thank goodness. It is a simple document and contains a summary of BOTH parties. An Acrobat PDF version of this document is available for download from the Family Court site.

Getting Ready for the Case Conference

This section outlines what to prepare. In financial matters, you should have the following information available:

  • appraisals/valuations of any real estate or other property/item in dispute (eg. cars, boats, artwork);
  • superannuation documentation and if possible a completed, Superannuation: Information Required for Family Law Matters form;
  • details of all bank/credit union/building society accounts and statements for last 12 months;
  • details and records of any investments, including stocks or shares;
  • income tax returns and assessments for the previous three financial years; and
  • any other documents that are relevant to the case.

The Conference involves 3 Stages. Each is summarised on the court site:

Stage 1 - Assessment

During this stage the Registrar and/counsellor ascertains the issues in dispute.

Stage 2 - Negotiation

During this stage avenues for resolution are explored.

Stage 3 - The Directions Hearing

This summarises the next step in or after the Case Conference - involving the setting down of a timetable for the next stage and what has to be done. In financial cases this is likely to be a conciliation conference. With children's cases, counselling is likely to be ordered if it has not already taken place.

Flow Chart

This is an updated chart showing how cases are now meant to flow through the case conference, directions hearing, trial notice and trial preparation under the new case management system. Study it carefully! Interstingly, the chart does NOT state what happens to cases where a Pre Trial Conference takes place and the case is NOT ready. As I understand it, the case goes into the Not Ready List. Another name for the Sin Bin. How to get out of that list will be interesting, particularly if you are the party wanting to get to trial. Stand by for further commentary.

Full Summary Document

This is a PDF document published by the court summarising the above case conference procedure, and well worth sending your clients who have email facilities.
 

Filing of Discrete Applications requiring Summary Determination to be in Federal Magistrates Court.

Practice Direction Number 7 now directs that as from 2 January 2002 certain summary proceedings should be issued in the Federal Magistrates Court.
Such applications include:
 


The rationale behind the direction is to ensure that applications within the jurisdiction of the Federal Magistrates Court are issued there. If there are other proceedings pending in the Family Court this direction may not apply. The Family Court of its own motion may decide to refer the case to the Federal Magistrates court, without reference to the parties. The direction commences with the sentence "The capacity of the Family Court of Australia to list and determine Summary Applications is reduced". How this will impact on cases in the Federal Magistrates Court will be interesting. In Melbourne at least, the lists are blowing out. On the positive side, referring such cases means being able to take advantage of the easier to use Application. See also the commentary on the Federal Magistrates Court.  Refer to Practice Direction 7.
 

Mercury Project Widens in Melbourne and Hobart - Affidavits in Interim cases limited.

Practice Direction No 2 of 2002 comes into effect on 15 July 2002 in Hobart and 29 July 2002 in Melbourne. It introduces a radical new approach to interim applications. In most cases, the necessity for filing an affidavit in support at the time of filing is eliminated. The Practice Direction in fact states that affidavits will not be accepted for matters which are allocated a Case Assessment Conference. Refer to the full article in the Practice Manual Updates section. It is also in Recent Articles on the Marshalls and Dent site.
 

Marshalls and Dent Client Notes and general information for Family Law Clients.
 

These are the notes given to clients of Marshalls and Dent at the first interview. They contain general information about how the Family Court deals with children, child support, the division of assets, and other general matters. Clients are also guided on many other aspects of dealing with solicitors during the conduct of their case. The notes are designed to assist clients in running their cases if they want, thereby minimising legal costs.

 Download client notes in Acrobat PDF Format. If you do not have the free Acrobat reader, get it from the Adobe site. Alternatively, read them on line in Html Format. Refer also to the Client Information Page.
 
 

Other Publications by Peter Szabo.
 

The Guide to Family Law Financial Planning. This is  published by the Centre for Professional Development. It is written for accountants and financial planners. There is a reference to it in the Practice Manual at page 5-25. The book covers the following topics:
 

        • an understanding of the Family Court system;
        • guidance on preparing financial documents for court;
        • what to look out for when valuing assets;
        • what you need to know to improve your clients’ financial situation after a family break up;
        • practical discussion on the issues involved in splitting up property;
        • what you need to know about pre-nuptial agreements


The Australian Master Financial  Planning Guide - Family Breakdown Chapter. Published by CCH (Australia) Ltd,  this book is updated annually. The first edition was published in October 1998, the 6th edition being released in August 2003. This practical book covers the strategies that need to be understood by financial planners when creating a financial plan. The astute Family Lawyer would do well to get the book for what is covered under the following headings:
 

        • Salary packaging
        • Investment
        • Family home
        • Superannuation - wealth creation
        • DIY superannuation
        • Planning to retire
        • Retirement incomes
        • Consequences of death
        • Estate planning
        • Family breakdown including superannuation splitting
        • Superannuation
        • Income tax
        • Capital gains tax
        • Social security
        • Rates and tables

Summary Paper covering major  tax and superannuation issues now available on line.

 
A summary the major tax issues to be looked into is set out in the attached paper, Tax Issues in Family Law Property settlements
which is a very useful prompt. It is a "must read" for anyone dealing with property settlements. The paper has been presented at various seminars, and is being constantly updated. It includes significant updated commentary on GST which is a potentially dangerous area. Superannuation aspects have been covered in a separate article entitled - Superannuation - the New Regime Explained. Both articles should be read in conjuction.

Also available for downloading are the Powerpoint slides I have used at seminars to summarise the issues raised in the papers. The presentations were given at the end of 2001 and tax figures are out of date accordingly, but the concepts are still relevant. Superannuation splitting is not covered in that presenation as the law had not been passed at that time.I hope to update the presentation by the end of 2004. Download Powerpoint version or Acrobat PDF version.

Articles, Papers and information brochures.

A selection of Articles and Papers by various authors of interest to Lawyers and the discerning non-lawyer. I have included a commentary as to their relevance to day to day practice. If you have an article you feel should be linked to this site, please email me.

Other Family Law Sites of Interest.
 

A selection of sites of interest to Family Lawyers. If you find others of interest, let me know so I can include links.

 
 
 


Note that many of them can if fact be filled in on screen - but cannot be saved without Acrobat Software!


 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

See also the section on Client Information where other sites such as the various Legal Aid bodies in Australia are referred to and summarised.

Top of Page