Friday 28 March 2008

Family Co-Presenters:

Mr Michael Emerson, Principal, Emerson Family Law

Ms Kay Feeney, Special Counsel, Cooper Grace Ward

Property Settlement

  • The relevant sections
  • The four step process
  • Importance of identifying and valuing all property
  • When to identify property – at separation or at trial?
  • What about spousal maintenance?
  • Clarification of what is property and what is not
  • Valuation issues
  • Notional property and add backs
  • Liabilities and how they are treated
  • Bankrupt spouses
  • Trusts
  • Valuing a business
  • The new Third Party Provisions – Part VIIIAA
    • Cases to date
    • Constitutional validity
  • Superannuation
  • The Two Pools approach
  • Current cases
  • Realisation costs and taxation issues
  • Capital Gains Tax
  • Stamp Duty exemptions

Assessment of Contributions

  • Financial and non financial
  • Direct and indirect
  • Role of homemaker
  • Special or extraordinary contributions – the ‘big money’ cases
  • Long marriages
  • Short marriages
  • Treatment of initial contributions
  • Treatment of gifts and inheritances
  • Windfalls
  • Wastage
  • Issues of weight, the range and risk factors
  • Treatment of costs
  • Violence and conduct
  • Discretion of the Trial Judge

Section 75(2) Factors

  • Relevant factors to adjustment
  • No set rules or presumptions
  • Weighting of factors
  • Significance of the size of the pool and impact on percentage adjustment
  • De facto law

Just and Equitable

  • Section 79(2) provides that the Court should not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. The Full Court of the Family Court regards this as a fourth step in property proceedings.

Section 106B – Claw Back Provisions

  • Spousal misconduct and reducing the pool
  • Transactions to defeat claims
  • Requirements for Section 106B
  • Remedies – s160B order – adding back to the pool – financial resource
  • Latest case law
  • Hiding assets
  • Locating hidden assets
  • Working with forensic accountants
  • Duty of disclosure

Negotiation and Settlement

  • Alternative dispute resolution
  • Approach to negotiation and settlement
  • Look for solutions from the outset
  • Opportunities for settlement
  • Round table conference
  • Mediation
  • Arbitration
  • Compulsory dispute resolution
  • Offers of settlement
  • Consent orders
  • The grief process and the importance of timing
  • Negative intimacy
  • Reality testing
  • Binding Financial Agreements and setting them aside
  • Recent cases
  • Drafting issues

Process Issues

  • The initial interview
  • Checklists
  • Developing rapport
  • Explaining the process
  • Dealing with anxiety
  • Realistic expectations
  • Importance of communications
  • Being proactive
  • Contested hearing – running a case – working with Counsel
  • Time limits
  • Tactics
  • Costs
  • Gathering the facts
  • Disclosure
  • Developing a strategy
  • Dealing with colleagues and belligerent opponents

Spousal Maintenance

Kay to complete sub-headings

Interim Property Orders

 Kay to do bullet points

Add Backs

Mike to do bullet points

Summary Dismissal

Kay to do

Summary Dismissal

Kay to do

Section 79A Applications

  • Grounds for setting aside
  • Cases
  • How is it dealt – two hearings or one?
    • Gitane and  Velacruz (2007) FLC 93-309

Loss of professional privilege on files

 Kay to do

Independent Children’s Representation

Mike to do

Interim Residence

  • Family Law Amendment (Shared Parental Responsibility Act) 2006
  • Goode and Goode (2006) FLC 93-286
  • Other cases

Child Abuse

  • Lindsay & Barker [2007] Fam CA 1273
  • Notices of child abuse
  • How are they dealt with?
  • The court’s more robust approach – Murphy’s case

Relocation

  • Taylor and Barker (2007) Fam CA 1246
  • R  & R [2007] FMCA FM 29
  • M and S (2007) FLC 93 – 313
  • Mazorski v Albright (2007) 27 Fam LR 518
  • Clapton and Sprenger (2007) Fam CA 1184
  • Sampson and Hartnett (No.10)(2007) Fam CA 1365

Divorce

  • The ground
  • Separation under one roof
  • Significance of divorce
  • Time limit for property settlement and/or spousal maintenance
  • Payout under superannuation funds
  • Claims against estate

Location and Recovery Orders

  • When to use them
  • Practical considerations
  • Impact on children
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