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WINNERS CORNER

01-Mar-2017

Latest winner of our Moët Award (February 2017)


Amanda Sommerville of Kroon Legal, Bunbury WA is our latest winner (February 2017).

Amanda wrote to us to point out that para 33 of our precedent final property orders (signature of an instrument by registrar under s 106A FLA or s 221 FCA) offended WA's Case Management Guideline 48.2 in relation to consent orders. 

We duly took up Amanda's suggestion to add a notation to that clause in our precedent for the clause not to be used for WA consent orders having regard to that Guideline. 



Latest winner of our Moët Award (July 2016)


Our latest winner is Gerard Holmes of the Victorian bar. Gerard’s contribution was to point us to a case in which he appeared as junior counsel, Cuo & Ming and Ors [2016] FamCA 495.

It was a decision of Benjamin J delivered 12 May 2016 which we have included in this month’s Latest Notable Cases. It was a useful judgment which we covered for our subscribers as it dealt with how a court interprets an ambiguously worded recital in a financial agreement.

The ambiguity stemmed from the wording of a recital which purported to define when the parties would be deemed to have separated for the purpose of the agreement coming into effect.



Latest winner of our Moët Award (June 2016)

Congratulations Michael Kilmartin of Adams Wilson Lawyers, Robina Qld – another double winner of our prestigious Moet Award!

Michael raised with us the accessibility of two papers by Dr Tom Altobelli (as His Honour then was) to which we refer in Chapter 4 of our Book (“research studies”) called “Rethinking contact arrangements involving young children” and “Children's attachment – its impact on family law practice”.

This led us to approach the author who kindly gave permission for us to publish both papers for our e-Book and online members’ Archive. Michael provided us with the first of those papers and the Family Law Section of the Law Council of Australia kindly supplied the second one.



Latest winner of our Moët Award (February 2016)

Congratulations to our latest winner – Michael Kilmartin of Adams Wilson Lawyers of Robina Qld.

Michael wrote to us in February 2016 – “Please note a recent case which I was involved in – Sandford & Cobb [2016] FamCA 11 which may be worthy of Latest Notable Cases for your members. It deals with a recalcitrant mother where the judge took what he termed a "cautious robustness" to the reintroduction of the children to the father (from whom the mother had alienated the children). It also dealt with issues of transfer of proceedings and issue of passports.”

We agreed – see this month's Latest Notable Cases for a summary of Forrest J’s judgment.


Latest winner of our Moët Award (21 September 2015)


Congratulations Debra Effeney, accredited family law specialist with Brisbane law firm Hartley Healy, who was in touch with us to draw our attention to Johnson & Finley [2015] FamCA 682. Debra wrote – 

“I just wanted to let you know that I found this Family Court single judge decision dated 5 August 2015 where leave was given out of time in a de facto property case for an Application for Consent Orders. Written and oral submissions were used to substantiate the ‘hardship’ issue.”
 
It was useful to receive this as an optional procedure as we usually suggest a Part VIIIAB financial agreement to our subscribers with out of time applicants for consent property orders. See our summary of the decision at this month’s Latest Notable Cases.



Latest winner of our Moët Award (16 June 2015)


Congratulations to accredited family law specialist Wendy Miller of Damien Greer Lawyers, Brisbane Qld for suggesting that we add a precedent letter of advice for a child support agreement as a starting point against which to measure a self-generated letter of advice. We have now added such a precedent to our online "forms and precedents" and will refer to it at page 5-39 TFLB ("precedent agreements (and letter of advice)") as part of our forthcoming June quarter update.



New winner of our Moët Award (19 March 2015)

Praise for our service as a useful reference work was received from barrister Tedd Jordan of the Queensland bar who went on to suggest that the addition of an index to our archived case notes would make searching there much easier. We decided to implement that idea and you can now see the outcome of Tedd's suggestion at our online Members' Archive.



Latest winner of our discretionary Moët Award (19 August 2014)

Rob Crossing of Crossing Family Lawyers, Nedlands WA is the latest winner of our discretionary Moët award.

Rob wrote to us as follows: I refer to the widespread habit of calling financial agreements “BFAs”. Whether any such agreement will turn out to be binding is a matter for the court. In my view, it is risky asserting that such an agreement will or will not be binding given the courts' approach to them and the potential for retrospective legislation. While most of TFLB refers to "financial agreements" it does refer to "binding financial agreements" or "BFAs" at pages 9-6 and 6-24. One aspect of a solicitor's role when taking instructions for a financial agreement is to ensure that the client understands that there are a great many variables that make it difficult to predict whether such an agreement will turn out to be binding. In my view, TFLB should discourage the use of the term "BFA". 

We replied: Couldn't agree with you more. Have made those changes for our September quarter update and will spell check any other 'bfas' floating around.



Latest winner of our discretionary Moët Award (4 July 2014)

New subscriber, family lawyer George Nedovic of Nedovic Lawyers, Melbourne suggested that it would be convenient to have all relevant legislation under the one roof at our website. We agreed - so we have created a new section "relevant legislation" at our members' Practice News containing links to all relevant acts, rules, regulations, practice directions and (WA) case management guidelines.


A bottle of Moët & Chandon is on its way to you George.



Latest winner of our Moët Award (March 2014)


This question received through our legal help line was so impressively concise (relevant history, issues and subscriber’s opinion) that we had to publish it as a template for such questions and present our discretionary Moët Award to its sender. 


"Rob, Wanted to get a second opinion on a property settlement. I act for H. Salient points are as follows: 14 year relationship - 3 kids [ages] - equal weekabout care - Parents are [occupations] H earns [x]K, W earns [y]K - Non super pool is [$xm]; H super is [xK], W super [yK]. At commencement cohab H owned three houses subject to 2 mortgages, net value of all three [$xK], plus [$yK] cash and [$xK] shares. W had a [$xK] car, [$yK] in the bank. H comes in with 98% of assets. They still hold two of the H houses (now debt free) and utilised the sale proceeds of the third to purchase the matrimonial home outright. They jointly bought one house together a few months after commencement, now debt free and worth [$K]. H received [$xK] inheritance from his grandfather two months before separation. Both are in good health, have equal care of kids, and W has higher salary and good prospects for promotion. I am of the view a significant adjustment is in favour of the H for direct financial contributions, particularly as I'm told Smith v Field has placed more emphasis on this contribution perhaps to the detriment of the homemaker contrib. Wife expects equal division. I see no 75(2) adjustments, both have 15 odd years to retirement. Question is what percentage adjustment to the H - I am of the view at least [x%]. Thanks."
 
Congratulations Peter Andrews Lawyer of Clayfield, Qld.



Latest winner of our Moët Award (January 2014)


Our latest winner of a bottle of Moët & Chandon is Peter Curry-Jones of Curry Jones Family Lawyers, Perth, WA for the following contribution as to costs which should be of interest to our members not just in WA but across the rest of the country too.

“I thought I might note for the possible benefit of your members that the increasing strain on the resources of the FCWA seems to be changing the Court’s approach to costs.

In a recent case I was given costs where the other party had delayed taking steps necessary for MSC (mediation style conferencing) to occur or for the appointment of a valuer.

I was instructed to seek the listing of a conciliation conference so as to keep the case moving along as my client is out of the matrimonial home and thus unduly affected by such delays.

The magistrate refused my application for a conciliation conference but suggested I might apply for the costs of the hearing instead. I immediately made that application, was asked to estimate an amount (which I did) and an order was made for costs fixed at $1,000.

My practice from now on will be to make a costs application in similar cases and to have a liquidated amount in mind at all procedural hearings in case I am called on to nominate an amount.”



Latest winner of our Moët Award

Congratulations (and a bottle of Moët & Chandon) go to Penny Johnston of the Central Australian Womens Legal Service, Alice Springs, NT.

Penny informed us that the Darwin registry had refused to accept for filing a Response in contravention proceedings (as TFLB recommends at page 4-72 for respondents to apply for variation of a parenting order), requiring an initiating application to be filed.

Penny referred us to FLR 21.06 (which allows a contravention respondent to file an affidavit) and took time to discuss with us the rules, which are unclear as to what kind of application should be filed (the preamble to the contravention application form states that a respondent may file an ‘application’). 

We’re aware that for a contravention case in the Family Court a respondent could not file an affidavit with an initiating application and doubt it is intended that an applicant should file an initiating application to seek what is a consequential order for compensatory time.

In Penny’s matter an “application in a case” (which to us makes more sense) was reluctantly accepted by her registry. Thanks to her feedback we will be changing “Response” at page 4-72 to “application” (leaving it to our subscribers to decide what type of application a respondent should be filing). Given the court's unlimited power in contravention proceedings to vary an order under s 70NBA(3) such an order may arguably be made upon an oral application by a respondent or upon the court's own initiative having regard to the evidence filed as to, say, the unworkability of the order such as to satisfy the Rice & Asplund rule, as was held in Deakin & Parry [2008] FMCAfam 590 at paras 5-6.



Latest winner of our new Moët Award

Congratulations (and a bottle of Moët & Chandon) go to Dean Foley senior associate at Murdoch Lawyers, Brisbane, Qld.

Dean’s contribution was in response to a “legal help” reply of ours to the effect that proceedings alleging contravention of a parenting order enables an application under s 70NBA to vary the order subject to Rice & Asplund. Dean argued that ongoing contraventions might mean that the order was “entirely unworkable”, being a fact that may satisfy the Rice & Asplund threshold for variation of the order as held in Deakin & Parry [2008] FMCAfam 590 at paras 5-6.

This was a useful contribution as to the intersection of contravention and Rice & Asplund so we will be making reference to it as part of our forthcoming June quarter update in our sections “contravention of parenting orders” and "variation of parenting orders".

More winners of our new discretionary Moët Award


Congratulations go to the latest winners of this prize – barrister Andrew Stenhouse of Family Law Chambers, Sydney, NSW and Rob Crossing, principal of Crossing Family Lawyers, Nedlands, WA.

Andrew’s contribution was to give us case law and his opinion in relation to s 83 of the Family Law Act that led us to improve our references to case law at page 6-23 of Chapter 6 of our Book (‘variation of spousal maintenance orders’). This will appear next month as part of our forthcoming March quarter update.

Rob pointed out the implications for our precedent child support agreements of the rebranding of the Child Support Agency. Now a branch of the Dept of Human Services the former Agency is still mentioned in the DHS website but is clearly no longer in existence so we have changed our online precedents so as to refer to the child support registrar instead and made numerous such changes throughout Chapter 5. They will also appear in our March quarter update.

A bottle of Moët & Chandon is now on its way to Andrew and Rob



First winner of our new discretionary Moët Award


Congratulations go to Melissa Milne, solicitor of Cullen Babington Macleod of Nedlands WA.

Melissa last month brought to our attention that a transfer of a Qld property (between former de facto partners) under a consent order of hers in the FCWA under the Family Court Act (WA) (FCA) would not be accepted for stamp duty exemption – the Qld Duties Office only recognising orders under the FLA or Qld’s Property Law Act (PLA). There was also a NT property to be transferred.

In response to a call for help, our co-editor Craig Nicol looked into this and concluded that a separation agreement under the PLA should be accepted in such a case. On request we supplied a precedent and Melissa now confirms that the agreement has been accepted for stamp duty exemption on the Qld transfer. (Melissa’s settlement agent in NT advised her that the NT transfer under the order under the FCA would be stamp duty exempt.)

We agreed with Melissa’s suggestion that we add a note in our Book for our WA subscribers as to interstate transfers under an FCA order or agreement. This will appear on page 7-69 as part of our March quarter update.

A bottle of Moët & Chandon will now be “going west”.



New offer - The Moët Award


From December 2012 a bottle of Moët & Chandon will be awarded for any contribution or suggestion by a member for the improvement of our service that we implement and judge to be worthy of an award.

Entries should be sent to us via “contributions” at our members’ home page and judging will be at our sole discretion.

See below all our winners from our launch in 2009 to 2012 when this was a monthly award for "Best Contribution".


 

Our October 2012 jackpot winner


Congratulations Julann Tiernan of McCowans Solicitors, Surfers Paradise, Qld who brought the following to our attention:

“I was reading through your recent (property) case notes and couldn't find Smith & Fields [2012] FamCA 510. We acted for the husband. There was a marriage of 29 years, three children and an asset pool of $30+ million. The wife’s main contributions related to the home, children and family and the husband’s were in creating a successful, valuable business.

I bring the case to your attention as it is unusual in a long marriage for the contribution of the parties in their different spheres of homemaker/parent and breadwinner not to even each other out. The court assessed the husband’s business stewardship as 60% of the asset pool and the wife’s contributions as just 40%.”

We did add a short reference to the case at page 7-29 of our Book (“big money cases”) but had overlooked including a summary of the judgment at our online “2012 case notes – property”. We have now rectified that. This could be a significant case as it was commonly thought that "special contributions" were dead. The decision is understood to be under appeal.



Our September 2012 prize jackpots! 


In the absence of a winner in September, our Best Contribution award will jackpot to two (2) bottles of French champagne this month.

Entries must arrive by Halloween, but please note that to be eligible to win your suggestion or other contribution must be one that, if implemented, would be useful for our membership.



Our August 2012 jackpot winner


Congratulations Melissa Rizzo, solicitor of Cullen Babington Hughes, Nedlands WA who wrote to say that her advice is often sought by a subpoenaed party such as an accountant or bookkeeper about objecting to a subpoena. She described the course she usually adopts but asked that we make the law and procedure on objections to subpoenas in our Chapter 8 clearer. We will be complying with this request as part of our September quarter update.

Melissa also passed on to us that the introduction in WA of mandatory conferral prior to interim hearings had been causing some debate as to what constitutes “conferral”. Under 12.3 of WA’s Case Management Guidelines of 7 May 2012 a Certificate of Conferral (Form NP11) is to be filed with a Form 2 or 2A in property cases certifying that the parties have conferred to identify and try to resolve or narrow the issues in dispute. The form and Guidelines are at our WA section of our online members’ Practice News. 

Two bottles of Moët & Chandon are on their way to Melissa!



The Moët jackpots in July 2012!

July was just the second month in the 39 months of this competition that no award was made for Best Contribution.

Let’s put it down to the post-financial year blues. So this month the Moët & Chandon jackpots. 

Two bottles of it will be the prize in August for the best contribution by a subscriber – it can be a useful paper for our online Members’ Archive (not from Royal Pines next week or Hobart in October as we’ll be there); a suggestion for the improvement of our service (which is feasible to be implemented) or any other contribution for the benefit of our members.

Good luck!


Our June 2012 winner


Congratulations Simon Pattison of Ellison Moschella & Co, Brisbane Qld

Simon sent us this contribution: "I was recently prompted by your suggestion at page 7-11 of the Book to consider using a caveat to protect a client's interests. I came across a paper on caveats presented by his Honour Justice Colin Forrest SC (when he was a barrister) to the FLPA Twilight Seminar in Brisbane on 3 March 2005. I found it quite informative and thought that if it didn’t infringe copyright it could be useful to members."

We sought the permission of his Honour who kindly agreed to our publishing the paper (“Caveats: their application in family law and de facto marital property division disputes”) at our online Members’ Archive (“useful papers”) on the basis that we alert our members to the paper being written in 2005 and under Qld legislation. The general principles should nevertheless apply nationally.

We duly posted that paper and may also add a reference to it at page 7-11.

Our May 2012 winner



Congratulations Kay Feeney, accredited family law specialist and principal of Brisbane law firm Feeney Family Law.


Kay suggested we post online copies of our quarterly update guides.

Her suggestion came just at the right time as we had been wondering how to keep our eBook package subscribers informed as to what had been covered in the last quarter's changes, where they have no hard copy 'last update' tab to remind them.

As with all good ideas, it was implemented immediately. Clicking on ‘EBOOK’ at the navigation bar along the top of the members’ home page will now give members a dropdown menu to our previous quarter’s updates.

A bottle of French champers is on its way to you Kay!


Our April 2012 winner


Congratulations go to Wendy Miller, accredited family law specialist, formerly special counsel at Thynne & Macartney, now of Herbert Geer, Brisbane.

Wendy’s contribution was to send in her paper “A just and equitable outcome? – An analysis of Stiller & Power” with permission to publish it for the benefit of our subscribers at our online Members’ Archive.

See our summary of Stiller & Power [2011] FMCAfam 996 at our online ‘2011 case notes – property’. The case is notable in that despite a long marriage (20 years) the parties managed to keep to their agreement “never [to] mix [their] finances or [their] assets”, such that Baumann FM held that in the absence of any significant contribution by either party (s 75(2) factors being found to stem from W’s superior initial financial position and poor decision making by H) the parties should each simply retain what assets they each had.

Wendy is now a double winner, having won “Best Contribution” back in July 2009.


Our March 2012 winner


Congratulations go to Kym Briese of Briese Lawyers, Toowoomba, Qld who wrote to us as follows:

“Just thought I would point out that although the disclosure listed at page 8-21 is accepted as usual disclosure items those listed are not a replica of FMCR 24.04 and are somewhat misleading if we are about to get on our high horse and threaten an application for enforcememt of discovery obligations. In my particular case I want disclosure about property bought since separation but am not in fact supported by Rule 24.04 in demanding the same.”

This has been a most useful contribution because once we examined the rules on discovery (which, of course, are different between the two courts as well as being spread across more than one rule in both the FMCR and FLR) we found the discovery obligations to be even more confusing than the issue Kym raised, so we proceeded to rewrite our coverage of discovery of documents for the sake of proper clarity. It will be contained in our March quarter update shortly.

As to the specific issue Kym raised (disclosure about property bought since separation) we found the FMCR and FLR to be silent, so we included that particular item as being discoverable as an “other relevant document” under FMCR 24.03 and FLR 13.04. I think members will be greatly assisted by the revamp of Chapter 8 as to disclosure, initiated by our March 2012 winner.


Our February 2012 winner


Congratulations Antonella Sanderson, principal solicitor of Family Law Matters, Cronulla, NSW.

Antonella submitted that our precedent child support agreements did not make it clear that non-periodic payments, such as school fees, need not under s 84(1)(d) CSAA be credited against the annual rate of child support, but can be agreed to be payable on top of an agreed or assessed periodic sum.

We agreed that our precedents and commentary on this could be clearer so we duly changed both (the hard copy amendments to issue in our March quarter update).

Antonella later suggested that our online notice (at “family law news”) concerning jurisdiction for de facto financial causes explain the consequences of the omitted proclamation for consent orders. We duly added an explanatory preamble to our latest post on that issue (an ABC interview with the Attorney-General) as suggested.


Our January 2012 winner

 

Tina Bruno of Northern Community Legal Service, Salisbury, South Australia wins - for the second time - our prize for Best Contribution!

Tina brought to our attention that our section on court fees did not clarify what fee reduction – both initiating and ongoing – a client on Centrelink benefits is entitled to. Our fee section did not make clear that such a person, according to the court registry, only needs to pay $60 in total (provided their circumstances do not change) for an initiating application (or response to same), no further fee being payable for setting down or for the hearing.

We agreed with Tina on this and, after obtaining clarification from the principal registrar of the FMC as to all applicants for fee reduction (both ‘general’ and for ‘financial hardship’), we duly amended our section on court fees at Chapters 4, 6 and 7 in our recent December quarter update so as to clearly explain who is entitled to what.


Our December 2011 winner


Congratulations go to Nick Tucker of the Queensland bar who sent in the following:

“Having recently been involved in a matter under ss 117AB and 117(2A) it struck me that the FLB really does not deal with costs properly. You assume that costs arguments won't get up. Frankly that's not true, in fact in a recent case of mine costs were all that separated the client who won from a practical defeat. My suggestion is that rather than assuming that 117(1) will override costs arguments you need to ensure practitioners are aware of all the arguments and case law. In many cases it is my view that costs arguments don't get up because practitioners don't know how to argue them in such a way as to ensure that 117(1) only applies when it should.”

We had a good think about this and decided that Nick had a point. While not wishing to encourage members to get their hopes up for a costs order or to run their cases with that expectation in mind we have amended our costs section in Chapter 8 by expanding our summary of the relevant statutory provisions – with extracts from the leading cases on costs. This will appear this month as part of our December quarter update.



Our three November 2011 winners!


Michelle Gillard of Roberts Legal, Adamstown, NSW suggested we amend our drug testing precedent to include hair follicle testing and provide some information on the difference between that and urinalysis. This led us to track down and post online a paper on the subject and amend our precedent order.

Santina Della-Rossa of Aughtersons, Ringwood, Vic suggested that our online precedent Case Outline for parenting cases be amended so as to insert prior to ‘s 60CC factors’ the application of s 61DA as to parental responsibility s 65DAA as to time with a child. We acknowledged our oversight and duly amended our online Case Outline.

Judy Benson of the Victorian bar identified a gap in our commentary as to the interaction between s 69ZK and State child protection law. We agreed and have inserted a section “children in care under child welfare law” in Chapter 4 under s 60CC factors (need to protect child from abuse), added to our Index as “child welfare law” – available next month in our December quarter update.



Our October 2011 winner


Congratulations Neil Hartley of Skinner & Associates, Albury, NSW who sent this to us:

“I was using The Family Law Book when I saw your precedent for a binding child support agreement. Is the reference to the agreement being binding on ‘heirs, executors, administrators and assigns’ really necessary since the agreement cannot be assigned, is terminated by the death of the payer, etc? Thanks for a great publication.”

We agreed with that view, provided that if we did amend the relevant clauses we felt it important to underline that child support arrears are (in our view) recoverable from a deceased payer’s estate.

Our decision was to amend clauses 4 and 5 of both precedents (binding and limited agreements) and add a reference to arrears recovery in clause 3 as to child support terminating events. These amendments were made both online and in hard copy.

Thank you Neil for your contribution and your kind words about our service.


Our September 2011 winner

 

Congratulations to David Madsen, principal of Madsen Law, Loganholme, Queensland.

David wrote to us in reference to the revised Family Violence Best Practice Principles published jointly by the Family Court and Federal Magistrates Court on 19 July 2011.

He sent us a checklist for compliance with the procedure now recommended for parenting disputes where family violence or abuse is alleged, which we thought would be a worthwhile addition to the ‘useful papers’ section of our online Members’ Archive.

It has been posted there under 'best practice checklist'. The Best Practice Principles are there too. 


 

Our August 2011 winner

 

Congratulations to Hayley Miller of Levis Stace & Cooper, Devonport, Tas who sent us this:

 

I have just been catching up on “latest notable cases” and “practice news”. Is there a way to have these emailed to me when they’re updated? Even if I just got an email stating that new materials had been added so I could remember to log in?

 

I thought that this would be really handy so that I could be updated when I’m busy and haven't logged in for a while.

 

We agree. So, thanks to your suggestion, we have now begun emailing our subscribers a mid-monthly “practice update” containing the month’s latest notable cases (with catchwords) and a note of recent practice changes.


 

Our July 2011 jackpot winner

 

Congratulations go to Mairead Taylor of Cahill & Rowe Family Law, Geelong, Vic, the winner of our July jackpot – two bottles of Moet & Chandon.

 

Mairead recommended that we add to our section “child’s passport” (a major long-term parental issue) at pages 4-43 and 4-44 of The Family Law Book some case law dealing with overseas travel with children for holidays and other temporary purposes.

 

This suggestion was accompanied by a useful summary of relevant case law. The number of inquiries about this issue through our Legal Help Line indicated to us some wider demand so we duly added a subsection “overseas travel” to our recently published June quarter update.


 

The Moët goes unclaimed in June 2011!

 

 For the first time since the launch of The Family Law Book – and we have had 25 consecutive monthly winners since then (see below) – no entries were received in June to our “Best Contribution” competition.

 

The prize will therefore jackpot to 2 bottles of french champagne next month. 

 

We give "contribution" the widest interpretation so feel free to click on CONTRIBUTIONS with any suggestion for improvement of our service or any information for the interest of members or you could send in to editor@thefamilylawbook.com.au a useful paper for the information of our subscribers at our online Members' Archive.

 

Good luck! 


 

 Our May 2011 winner

 

A bottle of Moët & Chandon is on its way  to Greg Downing of Saunders Downing Hely, Southport, Qld.

 

Greg brought to our attention that our service did not explain the requirement of procedural fairness being given to a super trustee in respect of a super split under a superannuation agreement.

 

Greg’s particular inquiry was duly dealt with but also led to our deciding to add a note about “procedural fairness” at the end of the explanatory notes accompanying our two precedent superannuation agreements.

 

Greg also gave us some feedback that he would find it useful if we included a parenting plan in our bank of precedents. We decided to implement this too (with explanatory notes) so one will be available online soon.


 

Our April 2011 winner

 

Congratulations Tina Bruno of the Northern Community Legal Service, Salisbury, South Australia.

 

Tina wrote to us to say “I'm very pleased that you now have The Family Law Book online. I was wondering if you would be able to make the links in the eBook active where the book says that a form is available on your website.”

 

This is yet another good idea from a subscriber which we have decided to implement. Live links to all court forms in our eBook are now available. We will shortly be doing the same for all mentioned court brochures and links to other websites so that your eBook is fully online.


 

Our March 2011 winner

 

Congratulations David Brotchie of Duffield & Associates Solicitors, Rockhampton.

 

David brought to our attention the fact that his local registry had rejected a sub-clause of our self-executing order (that provided for a party defaulting under a property order to pay certain costs without further order) on the ground that it ousted the jurisdiction of the court.

 

David suggested some rewording of the clause “to allow the registrar power, upon written request of the non-defaulting party, to order that the costs of the application to the registrar [to act under s 106A] be borne by the defaulting party”.

 

We agreed with that suggestion and have duly made that amendment to both our hard copy and online precedent order.


 

Our February 2011 winner

 

Congratulations Pippa Colman of Pippa Colman & Associates, Maroochydore, Qld.

 

Counsel in a case of hers suggested that the last two clauses of our precedent affidavit of lawyer in support of an interim costs application had the effect of waiving legal privilege.

 

We agreed that that was arguably so in respect of one clause so we decided to amend that clause and delete the other, which was as to a dollar for dollar order and therefore better left to the application itself.

 

We amended our online precedent immediately and will change the hard copy version for our March quarter update.


 

Our January 2011 winner

 

Congratulations Mary Nagle of O’Connell Solicitors, Newtown, NSW who sent this to us:

 

“I would like to thank you for this valuable and timely resource. It is clear, legible and informative and fairly easy to use. I do have a suggestion though that you may wish to take on board: When you are in search mode in the e-book, the drop down dialogue box remains open over the text and obscures it. The only option then is to close the box so that the topic may become visible. Is it possible to allow the box to be minimised? That way the box would be removed and not obscure the text while it would also be easy to return to it, and the search, without having to retype the details.”

 

Good idea Mary, so consider it done! We hope to have such a function installed by April.


 

Our December 2010 winner

 

Congratulations Sarah Fynes-Clinton of Alex Mackay & Co, Toowong, Queensland!

 

Sarah spotted room for improvement in the wording of the separation declarations annexed to our precedent superannuation agreements. We agreed with Sarah's views on this and duly implemented the suggested changes to our online superannuation agreements.


 

Our November 2010 winner

 

Congratulations this month went to one of our silk subscribers, Hon Peter Dowding SC of Hudson Chambers, Fremantle.

 

Peter twice referred us to recently published WA judgments of interest, which appear in this month’s “latest notable cases”. One was a decision of Thackray CJ on the meaning of “de facto relationship” under the Family Court Act (WA), the other a Duncanson M ruling as to whether an unintended separation amounted to a “matrimonial cause”.

 

Peter also raised a query as to the relationship between our online cases and the case law in our Book, which prompted us to add a preamble to our online Members’ News and Members’ Archive case notes that as our loose-leaf/E-Book service concentrates on leading cases we recommend our subscribers read that service in conjunction with the cases we review online.


 

Our October 2010 winner

 

Congratulations went to Aleksandra Kucharek of Peter Daley Solicitor, Banyo, Qld who asked if it would be possible to add a search function that covers our whole service.

 

Well, some more good news for all our loyal subscribers. We have launched, as part of subscriptions at no extra cost prior to 31 December 2010, our new E-Book – being our entire loose-leaf service in electronic format with live links and word/phrase search function, accessible from our Members’ Home Page!

 

The only information not included will be our online case notes, which are now easily available at our monthly “latest notable cases” at Members’ News (as are all family law practice changes) or assembled by topic at our Members’ Archive (all back issues).

Now would be a good time to subscribe!


 

Our September 2010 winner

 

Congrats went to Jaz Cornish of Cahill & Rowe Family Law, Geelong who suggested we add service deadlines for proceedings in the FMC and Family Court to our procedural section for children’s cases as we do for divorce applications.

 

He said that some direction as to what is an adequate time between service and first return date would be useful in such matters, especially when proceeding initially in the local court with a view to obtaining interim orders quickly.

 

Page 4-83 of our loose-leaf service was amended accordingly.


 

Our August 2010 winner

 

Congratulations Teresa Adornato of Paul Loane Solicitor, Biloela Qld who contributed the view, which we will be adding as a useful comment to Chapter 9 in our next update, that a “BFA” that divides future assets upon separation may only have been upheld in the recent case Cording & Oster as the parties were at the end of their marriage and there were no children.

 

A special mention goes to Jerome Hey of Evans & Company Family Lawyers, Bundall for spotting a typographical error in a field code used in a paragraph of one of our precedent superannuation orders, which had been replicated in others too and which we duly corrected.


 

Our July 2010 winner

 

Congratulations went to Agatha Repasky of Town & Country Lawyers, Adelaide.

 

Agatha suggested that we consider adding some precedents dealing with the enforcement of property orders by various means, such as sequestration, enforcement warrants, or third party debt notices which the contravention application does not really allow for.

 

Agatha argued that it would be of great assistance to members if such options via a precedent application for enforcement and a sample affidavit could be included in our online forms and precedents.

 

We agree with this suggestion and will be implementing it.


 

Our June 2010 winner

 

Congratulations went to Kellie O’Toole, another winner from Cahill & Rowe Family Law, Geelong.

 

Kellie’s indication that superannuation is not provided for in our post-separation financial agreement has encouraged us to add a precedent for a superannuation agreement, even though such agreements are little used. That has now been posted online (with a notation that super may also be included in a financial agreement).

 

We also decided to add notations to our post-separation financial agreement as to how our subscribers should in our view decide between consent orders and a financial agreement having regard to the capacity for setting each aside and stamp duty implications.


 

Our May 2010 winner

 

Congratulations went to Caroline Taylor of Cahill & Rowe Family Law, Geelong.

 

Caroline suggested we add some information about briefing an expert witness in a complex children’s case, such as in the form of a precedent letter.

 

In response to this suggestion we will amend the procedural section of Chapter 4 in our next looseleaf update by referring to the Family Court brochure and the FMC guidelines as to the duties of lawyers and expert witnesses in a parenting case, now available at our online “forms and precedents” via a keyword search for “expert”.

 

To make up for any disappointment at our deciding against a precedent letter, a bottle of French bubbly found its way to Caroline!


 

Our April 2010 winner

 

Congratulations went to Jerome Hey of Evans & Company Family Lawyers, Bundall, Qld.

 

Jerome would like to see our Part VIIIAB (de facto) financial agreements amended by adding a recital that the parties were ordinarily resident in a participating jurisdiction, the geographical requirement for such agreements under s 90UA.

 

He argued that while s 90UJ ("when financial agreements are binding") does not require such a recital it would be prudent to bring what is a prerequisite to the attention of parties who, say, move to SA or WA then seek to enter into such an agreement. 

 

We agreed, and made the suggested change to our de facto agreements.


 

Our March 2010 winner

 

Congratulations went to Melanie Rubin of Fox & Staniland Lawyers, Pymble, NSW.

 

Melanie suggested that clause 5 of our precedent financial agreement that operates as a release of spousal maintenance was ambiguous, and proposed wording to amend it for better clarity. We accepted her critique and duly amended that precedent. Our loose-leaf version will be amended in this month's Autumn update.

 

Melanie also proposed some improvements to our client information sheet, which we have also implemented in our online version.


 

Our February 2010 winner

 

Colin Fleming of Colin Fleming & Company, North Rockhampton took out our February 2010 prize.
 
Colin suggested aspects of our book be made available electronically so he could use our concise advice summaries in his client letters without having to re-type them.

 

Although putting the book online is not an option for us, Colin’s idea did get us thinking about developing our imminent members’ archive so as to instal (for use by clients) downloadable pdfs of court- and agency-produced brochures and fact sheets  currently only available at Forms & Precedents, to accompany our past case notes and useful papers.


 

Our January 2010 winner

 

A bottle of Moët & Chandon found its way to Lisa Gowers, knowledge coordinator at Harwood Andrews, Geelong.

 

Lisa suggested that our proposed new archive of back issue case notes include a search function enabling a keyword or phrase search of all items previously published under our Members’ News section. She added some ideas as to a couple of online aspects, describing our website as “very readable and easy to use”.

 

Lisa’s suggestion has given us food for thought as to whether to develop our new Members’ Archive beyond being a mini library of case notes grouped by subject heading.


 

Our December 2009 winner

 

Jarrod Stockman of Lynch & Associates, Tewantin is now a double winner of our monthly prize of a bottle of Moët & Chandon.

 

Jarrod’s suggestion was for The Family Law Book to create an online archive of back issues of our case notes, including cases not reported in our looseleaf service. He also suggested making more of a home base at our Members’ Home Page for when members log in.

 

Both great ideas, which we are now implementing. So by February 2010, our Members’ Home Page will have a new look when you log in. It will also include access to our new library of back issue case notes. We thought we’d add a selected paper or two and other such material that may be of use to members.


 

Our November 2009 winner

 

A bottle of Moët & Chandon winged its way to Sharon Beck of Carvosso & Winship, Buderim.

 

Sharon’s suggestion was that our online link to the state and territory revenue offices be not to their home pages but to the rulings (or their introductory pages), for quicker reference by busy lawyers.

 

This has been duly implemented (as all our winning entries to date have been). We much appreciate all the suggestions and other contributions we receive from members.


 

Our October 2009 winner

 

Our October 2009 winner Jarrod Stockman of Lynch & Associates, Tewantin, suggested:

 

“Be great to have a ‘print this page’ option for your case notes in their own template that are grouped by subject matter and refer to their relevant page numbers in the hard copy (The Family Law Book), as another quick reference source.”

 

This suggestion got us thinking about giving our members an archive of back issues of our case notes that is downloadable in PDF.

An online library of these is already available at “members’ news” (useful as not all of the cases find their way into the Book), but the printing aspect is not ideal and the notes are not grouped by subject.

 

We now have the planning of this in hand, thanks Jarrod!


 

Our September 2009 winner

 

Congratulations go to John McDonald, sole practitioner of John McDonald Solicitor, Caloundra. A bottle of Moët & Chandon found its way to him.

 

John’s contribution was in bringing to our attention some trouble he was having in accessing one of our precedents, which led to a review of keywords and an overhaul of our online document search function.

 

Thanks to John’s feedback, we have now incorporated a battery of keywords behind each of our online forms, brochures, links and precedents so that keyword searching for the document you’re after does now work as smoothly and quickly as Google.


 

Our August 2009 winner

 

Carrolle Colbert, PA to Julie Dobinson of Dobinson Davey Clifford Simpson, Canberra took out our August prize.

 

Carrolle let us know that she had just used our online precedent for a child support agreement and found that the paragraphs, not having automatic numbering, had to be put in manually, which “made for some fiddly editing”.

 

Automatic numbering was abandoned during compilation of the book as it was giving us trouble, but now that the book is done, we realised it would be easy enough to implement this suggestion document by document for our online precedents.

 

So, thanks to Carrolle, automatic numbering has now been applied to our online precedents for even speedier production of draft documents by all our members and their support staff.


 

Our July 2009 prize winner

 

Another family law specialist, Wendy Miller of Thynne & Macartney, Brisbane, won our July award.

 

Wendy suggested that a link be added to our online case summaries so as to save members time in searching for cases they want.

 

She also asked for our online search function to be by chapter name instead of number for easier access to the document sought.

 

We agree. Links have now be added to all our online cases (and now also our newsletters), and the suggested search function has been installed with the added option of a keyword search by entering the document’s name eg "affidavit".


 

Our June 2009 winner

 

Peter Carew of Carew Counsel, Melbourne took out our June award.

 

Peter argued that clause 5 of our BFA that operates as a release of future maintenance would more safely negotiate s 90E (s 90UH in de facto cases) as a release if it were to regard the sections as applying (and then provide for nominal maintenance) instead of the sections being recited as not applying. 

 

Our initial view was that those sections did not apply as the clause did not provide for a party’s maintenance within the meaning of the sections. We came to agree with Peter’s argument that the release of maintenance might be construed as coming within the sections (thus rendering the clause void).

 

We agreed that it was better to be safe than potentially sorry. His suggested change was made online and for inclusion in our looseleaf update for the June quarter.


 

Our inaugural winner (May 2009)

 

Debbie Richards of Province Lawyers, Toowoomba won our inaugural award for Best Contribution for spotting that the certificate of legal advice in our precedent financial agreements was incorrectly said to be under s 90G(1)(b) instead of s 90G(1)(c).

 

Debbie also advised against our sample letter of advice (under “next steps”) going so far as to recommend lawyers from which the client’s partner could choose their own lawyer.

 

Those changes were made immediately to our online precedents, and our hard copy precedents altered for inclusion in our first quarterly looseleaf update in July.

 

Another suggestion we acted on came from Fiona Browne of Evans and Company Family Lawyers, Bundall. Fiona suggested that we add to our coverage of subpoenas in Chapter 8 (“other routine procedures”) the procedure for objecting to a subpoena. This has now been added to that chapter.


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NEW OFFER -
The Moët Award


A bottle of Moët & Chandon will from December 2012 be awarded for any contribution or suggestion by a member for the improvement of our service that we implement and judge to be worthy of an award. 

Entries should be sent to us via “contributions” at our members’ home page and judging will be at our sole discretion.

Visit our Hall of Fame at Winners' Corner to see all our winners from 2009 to 2012 when this was a monthly award for "Best Contribution".

“This will be really good for teaching lawyers in general practice, junior lawyers and paralegals the role of the family lawyer. Being in one volume is brilliant – it will find itself in constant use, not left on the shelf as can happen with the multi-volumes.”

Peter Carew, principal
Carew Counsel
Solicitors, Melbourne