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Jacky Campbell, November 2017

Introduction to Wolters Kluwer Australian Family Law Act 1975 book

Introduction

Foreshadowed major legislative changes to financial agreements and other aspects of the Family Law Act 1975 did not eventuate in the past 12 months, but the changes to that Act and the Family Law Rules 2004 were sufficient to mean that there have been many changes to this Book. The most significant amendments relate to the Rules regarding subpoenas in the Family Court and the section of the Act which deal with the structure and administration of the Family Court.

Administration of the Court

The Courts Administration Legislation Amendment Act 2016 designated the Federal Court of Australia (including the National Native Title Tribunal), the Family Court of Australia and the Federal Circuit Court of Australia as a single administrative entity under the Public Governance, Performance and Accountability Act 2013 and a single statutory agency under the Public Service Act 1999.

In summary, this Act:

  • established shared corporate services functions for the 3 courts;
  • maintained the responsibility of the heads of jurisdictions in relation to the business and administrative affairs of their respective courts;
  • provided for a Chief Executive Officer (CEO) for each head of jurisdiction to assist with the management of administrative affairs;
  • provided that the CEOs also hold the position of Principal Registrar;
  • provided for the Federal Court CEO to have responsibility for managing the shared corporate services, with the requirement for consultation;
  • provided that the Federal Court CEO is the accountable authority for the administrative entity and the agency head for the statutory agency.

Most changes took effect from 1 July 2016 but giving the CEO the position of Principal Registrar will commence on 1 July 2018.

The Explanatory Memorandum to the bill states that the measure “formed part of the package of reforms aimed at streamlining and improving the financial sustainability of the Federal Courts”. The objective was to “generate efficiencies through the establishment of shared corporate services functions for the courts to reduce unnecessary duplication”. The administrative burden on each court was reduced by consolidating finance, human resources, information technology, property and operations arrangements. The Act was not intended to “affect the substantive rights of court users”. Each head of jurisdiction maintains responsibility in relation to the business of the courts and managing the administrative affairs of their respective courts, with administrative affairs defined to exclude corporate services.

The corporate services of the Family Court and the Federal Circuit Court which were merged for 1 July 2016 are defined in s 38A(1B) Family Law Act and s 89(1)(2A) Federal Circuit Court of Australia Act 1999 as

(a)     communications;

(b)     finance;

(c)     human resources;

(d)     information technology;

(e)     libraries;

(f)      procurement and contract management;

(g)     property;

(h)     risk oversight and management;

(i)      statistics;

(j)      any other matter prescribed by a determination under subsection (5).

Consequential amendments were also made to the Family Law Rules as the Chief Executive Officer now combines the former positions of the Chief Executive Officer and the Principal Registrar of the Family Court.

The CEO of the Family Court, in his submission to the Senate Standing Committee & Legal Constitutional Affairs, expressed concerns about:

  • the loss of control by the Court over its information technology system including the Court’s case management system (Casetrack) and the Commonwealth Law Courts Portal (Comcourts);
  • the lack of constraints on the exercise of the power by the CEO, with only a requirement to “consult” with the heads of jurisdiction;
  • the absence of criteria for how decisions are to be made;
  • the lack of provision for any governance and accountability arrangements between the heads of jurisdiction such as a board-like structure;
  • the potential conflict of interest which may arise when the CEO of one Court can make decisions that affect the 3 courts.

The CEO of the Family Court recommended to the Committee that to address these concerns the following changes be made:

  1. Two of the three heads of jurisdiction must agree on any decisions that will affect the operating processes of the Courts.
  2. Any decisions affecting the operating processes of the Courts or relating to expenditure over $500,000 must be communicated to the heads of jurisdiction in writing with reasons for the decisions reached.
  3. Decisions made that do not comply with points 1 and 2 above are voidable.
  4. At least once per annum the heads of jurisdiction of the Federal Court, the Family Court and the Federal Circuit Court are to meet with the Chief Executive Officer and the Chief Executive Officers of their respective Courts to set policy for the coming 12 months for implementation by the Chief Executive Officer, with the Chief Executive Officer being responsible for providing heads of jurisdiction with a proposal for operations during the next 12 months at least 14 days prior to the meeting.
  5. Any dispute between the heads of jurisdiction about policy which cannot be resolved between them is to be resolved by the Attorney General in consultation with three heads of jurisdiction.

The Law Council of Australia, in its submission, was primarily concerned with the impact on the Federal Circuit Court, but also with the resourcing of both the Family Court and the Federal Circuit Court. It welcomed the bill, but communicated concerns about the capacity of the Federal Circuit Court to fulfil its role as an intermediate federal court, delays in the Family Court, and the lack of judicial resources in both Courts. The Law Council expressed a need for increased funding and the appointment of additional judges in each of the Federal Circuit Court’s jurisdictions in a timely manner. The Federal Circuit Court’s significant workload, increasing under its expanding general jurisdiction, has made this requirement a critical one, according to the Council.

The concerns and recommendations of the CEO of the Family Court and the Law Council of Australia have largely not been addressed.

Service of subpoenas

Amendments to the Family Law Rules have been made which follow on from the 2015 amendments in the Family Law Amendments (Arbitration & Other Measures) Rules 2015. The 2015 amendments introduced a process for the administrative release of documents produced pursuant to Subpoenas to Produce Documents issued in the Family Court.

The process is streamlined by providing that the manner of service of subpoenas for production can be by ordinary service rather than by hand. This distinction means that personal delivery to the named person is no longer required. Also, the amendments expressly allow for an alternative method of service of subpoenas for production to be agreed upon between the issuing party, each other party and each interested person. In practice, even before the amendments, the issuing party and the person being served sometimes agreed on a manner of service being different to that provided for in the Rules. The new rule, perhaps, makes the process of varying the method of service unnecessarily complex as the issuing party must now obtain the consent of each other party as well as the named person being served. The costs saved in using an alternative method of service agreed upon by the named person might be outweighed by the communications necessary to obtain consent from each other party.

The requirement to file an Affidavit of Service before filing a Notice of Request to Inspect in relation to subpoenas to produce documents has been removed. Complying with the Rules regarding service is, however, still necessary. In practice, compliance is now confirmed by the solicitor indicating this on the Notice of Request to Inspect.

Trial Management Hearing

The term ”first day of trial’ has been replaced by “trial management hearing”. This makes it easier to explain the court processes to clients. The process itself has not changed, but the trial management hearing is more clearly identified as a separate date with a different purpose than the trial itself.

The purpose of the trial management hearing is set out in r 6.08(1) of the Family Law Rules as:

“ (a)     for the presiding Judge, with the assistance of the parties and their legal representatives, to discuss and identify the orders sought and issues in dispute between the parties arising from the applications before the court; and

(b)     in the ordinary course, to hear and determine any interlocutory issues or interim applications that are outstanding on the date of the trial management hearing, or to make appropriate arrangements for the determination of those applications; and

(c)     in a parenting case – to receive evidence, including from the family consultant in the case; and

(d)     in a financial case – to consider the balance sheet; and

(e)     to consider and determine a plan for the trial.”

If evidence is taken at the trial management hearing, the Judge who presided at the trial management hearing must also preside at the trial.

Insolvency Law Reform Act amendments

The Insolvency Law Reform Act 2016 commenced operation in two stages: the first stage on 1 March 2017 and the second stage on 1 September 2017. The first stage of the reforms was concerned primarily with the registration and discipline of insolvency practitioners. The second stage relates to insolvency administration processes.

As a result of these reforms, there have been changes to the Family Law Rules to update references to provisions of the Bankruptcy Act which have been repealed or replaced.

In addition, the Family Court has harmonised its Rules relating to bankruptcy cases with those of the Federal Court and the Federal Circuit Court.

The amendments also provide for transitional provisions for matters commenced before the Insolvency Law Reform Act commenced.

Trans-Tasman Proceedings

The general delegation of powers to deputy registrars by reference to powers under Chapter 26A of the Rules in relation to subpoenas in Trans-Tasman proceedings has been removed. Instead, the particular powers delegated to deputy registrars are specified. The purpose of this amendment was to align the approach in the Family Law Rules with the approach of the Federal Circuit Court Rules 2011.

Costs

The scale of costs was increased by 1.7% from 1 January 2017. Costs for family law proceedings in the Federal Circuit Court of Australia have also increased and apply to work done or services performed after 3 August 2017.

Prima facie evidence

Many Commonwealth Acts have been amended to substitute the phrase “prima facie evidence” for “evidence” where a certificate can be produced to facilitate the proof of a matter. This change was made to s 56(3) Family Law Act, which relates to divorce orders. Under this section, if a divorce order has taken effect any person is entitled, on application to the Registry Manager of the court in which the divorce order was made, to receive a certificate signed by the Registrar of that court that the divorce order has taken effect.

As a consequence of the amendment, the certificate under s 56(2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, prima facie evidence of the matter specified in the certificate. Prior to the amendment, the certificate was simply “evidence” of the matter specified in the certificate.

Future Reforms

The major changes to rectify the difficulties with the current provisions in the Family Law Act dealing with financial agreements appear to have been deferred by the Federal Government. The Bill currently before Parliament which deals with family law issues, does not include major changes regarding financial agreements. The Civil Law and Justice Legislation Amendments Bill 2017 does, however, contain significant and numerous reforms including:

1.         Establishing the Family Court as a Court of law and equity;

2.         Amendments to s 44 of the Act in relation to leave to initiate property and maintenance proceedings out of time;

3.         The ability of parties to disclose that an offer can be made, without disclosing the terms of the offer;

4.         New offences relating to international child abduction;

5.         Clarifying the roles of family counsellors and family consultants;

6.         Re-numbering Part VIIIB, which is the Part dealing with superannuation.

Conclusion

Many of the amendments to the contents of this Book relate to the administration of the Family Law Courts. The impact of these changes is difficult to predict and it will probably take some time for the manner in which lawyers and clients deal with the Family Law Courts to be affected.

More immediate in their impact on day-to-day practice have been the changes to the Family Law Rules with respect to subpoenas and the increase in the Scale of Costs.

A bill which includes extensive changes to the Act is likely to be passed by Federal Parliament later this year. Presumably, this will result in comprehensive consequential amendments to the Rules of both Family Law Courts.

 

Jacky Campbell

Partner

University qualifications

Master of Laws, Monash University

Bachelor of Laws, Monash University

Bachelor of Arts, Monash University

Graduate Diploma of Professional Writing, Deakin University

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Email Jacky Campbell
jcampbell@fortefamilylawyers.com.au

Connect on LinkedIn

Publications
To read Jacky Campbell’s articles and papers click here.

In 2020, Jacky was recognised as a leading family lawyer in Melbourne by Doyle’s Guide to the Australian Legal Market as well as one of Melbourne’s leading family lawyers in High-value and Complex Property matters, and a recommended lawyer in parenting matters. Jacky was also a recommended lawyer in the Doyle’s leading family and divorce lawyers in Australia. Jacky writes extensively on complex aspects of family law and her up-to-date knowledge means that she is able to provide accurate information about the law. She combines this with offering strategic advice to clients and guidance as to the best approach to take in their particular circumstances.

Jacky wrote her Masters thesis on the relationship of bankruptcy and family law. She continues to have a special interest in matters involving bankruptcy, insolvency, liquidation and receivership.

Jacky received the Law Institute of Victoria Rogers Legal Writing Award 2004—for the article “Splitting the Super…and Selling the Home”. She is experienced with complex superannuation interests such as defined benefit funds and self managed superannuation funds.

Jacky is the consultant editor of Wolters Kluwer/CCH Australian Family Law and Practice and contributing author to Wolters Kluwer/CCH Australian Family Law and Practice to the Property, Spousal Maintenance, Financial Agreements, Maintenance Agreements, Procedure and Precedents tabs. She writes several chapters of the Wolters/Kluwer CCH Australian Master Family Law Guide, and is the author of the family law chapters in the Thomson-Reuters Australian Financial Planning Handbook and in the CCH Australian Master Superannuation Guide.

Jacky is a Fellow of the International Academy of Family Lawyers, a board member of the Asia Pacific Chapter of that Academy, and an Associate of the American Bar Association. She acts for many clients who are overseas or where there is an international element such as overseas assets and international child abduction under the Hague Convention. She is also experienced in Australian and overseas surrogacy arrangements and in disputes about the role of a sperm donor. She is a member of the Maintenance and Property Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Jacky is keen to assist clients to resolve matters before trial through alternative dispute resolution processes including mediation. She is a trained arbitrator and is an arbitrator with The Alternative Courtroom.

Wendy Kayler-Thomson

PARTNER

University qualifications

Master of Laws, Monash University

Bachelor of Laws, University of Melbourne

Bachelor of Commerce, University of Melbourne

Other qualifications
Accredited Family Law Specialist, Law Institute of Victoria

Email Wendy Kayler-Thomson
wkaylerthomson@fortefamilylawyers.com.au

Connect on LinkedIn

Wendy Kayler-Thomson is a partner of Forte Family Lawyers and has practised as a lawyer specialising in family law for more than 25 years. Wendy is recognised as one of Melbourne’s leading family lawyers in Doyle’s 2020 Guide to the Australian Legal Market.

Wendy is the Immediate Past Chair of the Family Law Section of the Law Council of Australia, the peak body for Australian family lawyers, and has been a member of the Executive of the Family Law Section for more than 10 years. The Family Law Section is regularly consulted by the Federal government and the Courts about changes to family law and court procedures. As a result, Wendy is able to offer her clients the most up to date advice on family law and strategies to take advantage of future changes.

Wendy’s time as Chair of the Family Law Section (from 2016 to 2018) coincided with a period of great controversy and unprecedented attention on the reform of family law and the family law system. This included the Victorian Royal Commission into family violence, the Federal Parliamentary enquiry into the family law system and family violence, the Australian Law Reform Commission’s Family Law Review and the Federal Government’s proposal to restructure the Family Court and Federal Circuit Court.

Wendy was a member of the Advisory Committee to the Australian Law Reform Commission’s Family Law Review, the most comprehensive review of family law and the family law sector in 40 years.

Wendy was also a member of the Advisory Committee to the Law Council of Australia’s 2018 Justice Project, chaired by former High Court of Australia Chief Justice, the Hon. Robert French. The Justice Project is one of the most comprehensive, national reviews into the state of access to justice in Australia in the past 40 years.

Wendy develops close and trusted relationships with her clients and the wide network of professionals that refer her work. Wendy’s approach is tailored to each individual client’s needs, recognising that for most people, the breakdown of a relationship is one of their most stressful and challenging experiences. Wendy brings a high attention to detail, strategic advice and a depth of expert knowledge about family law. Wendy has a commercial background and has acted for many clients with complex financial arrangements. She works closely with her clients’ accountants and other professional advisors to ensure that all the complexities of those arrangements, including tax impacts and restructuring, are dealt with as part of any settlement.

Wendy has undertaken extensive training in a wide range of social sciences that impact on families and their children, including family and domestic violence, parental alienation, personality disorders, drug and alcohol addiction and high conflict. Wendy’s clients benefit from her knowledge of the most up to date approaches by child psychologists and other experts to managing the post-separation care arrangements of children. Wendy has particular expertise in cases where one parent wants to relocate with the children interstate or overseas.

Wendy is also a member of the Executive Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia, the Association of Family and Conciliation Courts, the Australian Institute of Family Law Arbitrators and Mediators and Victorian Women Lawyers.

Jemma Mackenzie

Senior Associate

University qualifications

Bachelor of Laws (Hons) Monash University
Bachelor of Arts (Hons) Monash University

Email Jemma Mackenzie
jmackenzie@fortefamilylawyers.com.au

Other qualifications
Accredited Family Law Specialist,
Law Institute of Victoria

Connect on LinkedIn

Jemma is a Senior Associate at Forte Family Lawyers. She has worked predominantly in family law since being admitted to legal practice in December 2009.

Jemma obtained Specialist Accreditation as a Family Lawyer from the Law Institute of Victoria in 2015. Accreditation recognises the high level of knowledge and practical skills Jemma brings to each family law matter.

Jemma is mindful that the breakdown of a marriage or de facto relationship can be a stressful and often overwhelming experience for clients. She works with her clients to identify appropriate pathways for resolving both parenting and property matters.

Jemma prides herself on her ability to effectively communicate what can be complex legal principles and to provide realistic, up to date and accurate legal advice at each stage of a matter.

Jemma has experience in a wide variety of family law matters including division of property, maintenance (including urgent applications), Financial Agreements (including Agreements made prior to marriage), care and living arrangements for children, child support and family violence – including Intervention Order proceedings.

Prior to joining Forte Family Lawyers, Jemma worked in a Bayside family law firm and a boutique firm in Melbourne’s eastern suburbs. She has conducted litigation in both the Family Court of Australia and Federal Circuit Court in Melbourne and interstate.

In addition to her daily work with clients, Jemma has made presentations to financial advisors and medico-legal professionals about the family law system in Australia and what clients should know about family law prior to separating.

Jemma is a member of Victorian Women Lawyers, the Family Law Section of the Law Council of Australia and the Family Law Section of the Law Institute of Victoria.

Jane Bentley

Senior Associate

University Qualifications

Masters of Applied Law (Family Law), College of Law

Bachelor of Laws, Victoria University

Bachelor of Science, University of Melbourne

Email Jane Bentley

jbentley@fortefamilylawyers.com.au

Other Qualifications

Accredited Family Law Specialist, Law Institute of Victoria

Jane is a Senior Associate at Forte Family Lawyers. Jane is an Accredited Family Law Specialist as a recognised by the Law Institute of Victoria. Accredited Specialists demonstrate superior knowledge, experience and proficiency in their specialist area of law.

Additionally, Jane has undertaken a Masters of Applied Law in Family Law.

Prior to joining the firm, Jane has worked in both the private and community sectors where she worked on both complex parenting and property matters, regularly appeared in the Family Law Courts and through her work at a commercial firm Jane was able to build and enhance her commercial skills. Throughout her career, Jane has worked collaboratively with commercial lawyers providing advice where both family and commercial law intersect, as well as working directly with professionals on family law matters including psychologists, mediators, accountants and financial advisors.

Jane has a wide range of experience in different family law matters including financial agreements, family violence, parenting, IVF issues, matters involving grandparents, Hague Child Abduction Convention, child support, property and spousal maintenance.

Jane prides herself on her ability to communicate effectively with her clients during an emotional and challenging time. Jane builds strong relationships with her clients as she recognises that the legal system can appear complex and daunting and works with her clients to guide them through the process.

Jane is a member of the Courts Practice and the Property and Maintenance Committees of the Law Institute of Victoria which ensures that she is appraised of recent developments in family law and at the Family Law Courts. Jane is also a member of the Family Law Section of the Law Council of Australia.

Matthew Beckmans

Senior Associate

University qualifications

Bachelor of Laws, University of Western Sydney

Email Matthew Beckmans
mbeckmans@fortefamilylawyers.com.au

Connect on LinkedIn

Matthew commenced his legal career practising in a medium-sized rural law firm. Matthew is able to draw on his broad experiences over a number of practice areas, prior to practising exclusively in family law, to offer clients a well-rounded approach to tactically resolve complex legal issues.

Matthew has developed a special interest in complex disputes involving companies and trusts, insolvency and bankruptcy, taxation, and international/domestic relocation.  He also has a particular expertise in child support.

Matthew is aware and mindful of the financial challenges and restraints when attempting to resolve family law disputes, and sets out to achieve negotiated and cost effective outcomes which avoid court where possible. Matthew recognises the emotional issues attached to the breakdown of a relationship, and draws on his strong communication skills in demystifying the family law process, and to identify and explain possible options for resolution in a concise manner.

Matthew was a member of the steering committee of the Riverina Family Law Pathways Network, secretary of the South West Slopes Law Society, and a mock trial magistrate for the Law Society of New South Wales.

Prior to practising law, Matthew was rookie listed by the Sydney Swans, where he enjoyed a brief career.  He now plays for the Monash Blues in the VAFA.

Matthew is a member of the Family Law Sections of the Law Council of Australia and the Law Institute of Victoria.  He is on the Court Practice Committee of the Family Law Section of the Law Institute of Victoria.

Vinh Nguyen

Associate

University qualifications

Bachelor of Laws, Deakin University

Bachelor of Commerce, Deakin University

Email Vinh Nguyen
vnguyen@fortefamilylawyers.com.au

Connect on LinkedIn

Vinh first worked at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2017. He joined Forte Family Lawyers as a lawyer after his admission into legal practice in October 2017 and has, since then, worked solely in family law.

Prior to his admission as a lawyer, Vinh worked as a paralegal in a community legal centre and in a property and commercial law firm, where he gained valuable experience in property transactions.

Vinh is a member of the Family Law Section of the Law Council of Australia, the Law Institute of Victoria and the Asian Australian Lawyers’ Association. Vinh also volunteers at the Darebin Community Legal Centre.

Vinh is fluent in Vietnamese.

 

 

 

Natasha Mastroianni

Associate

University Qualifications

Bachelor of Laws (Hons), Latrobe University

Bachelor of Arts, Latrobe University

Masters of Applied Law (Family Law), College of Law

Email Natasha Mastroianni

nmastroianni@fortefamilylawyers.com.au

 

 

Connect on LinkedIn

Natasha Mastroianni has experience in a range of family law matters, including property settlements, financial agreements, parenting matters (including interstate and overseas relocation issues), child support and intervention order proceedings.

Natasha was admitted to practice in August 2014 and commenced her career in a generalist practice where she gained experience in family law, property law, wills and estates. Natasha worked in a boutique family law practice prior to commencing at Forte in February 2020.

Natasha has a Masters of Applied Law (Family Law) from the College of Law and speaks conversational Italian.

Having practical experience in other areas of law assists Natasha to understand the interrelated issues involved in her clients’ family law matters. She regularly appears on behalf of clients at Duty List Hearings and other Court events in the Federal Circuit Court, Family Court of Australia and the Magistrates’ Court of Victoria. Natasha also appears as a solicitor agent for interstate or rural practitioners when required.

Natasha prides herself on being able to understand and manage her clients’ expectations whilst providing realistic and practical advice. She acts with empathy and compassion when striving to achieve the best possible results for her clients.

Natasha is a volunteer lawyer with the Women’s Legal Service and is the Vice President of the Northern Suburbs Law Association. She is also a member of the Courts Practice Committee of the Family Law Section of the Law Institute of Victoria, the Family Law Section of the Law Council of Australia and Victorian Women Lawyers.

Mark Di Donato

Lawyer

University Qualifications

Bachelor of Criminology and Justice, Navitas College of Public Safety

Juris Doctor, Monash University

Email Mark Di Donato

mdidonato@fortefamilylawyers.com.au

Connect on LinkedIn

Mark started work at Forte Family Lawyers as part of his Graduate Diploma in Legal Practice at the Leo Cussen Institute for Law in 2019. Mark was later admitted into the legal practice in September 2019 and transitioned into a lawyer role with Forte Family Lawyers in February 2020.

Prior to his admission as a lawyer, Mark volunteered as a paralegal at Darebin Community Legal Centre and interned at a commercial law firm, where he gained valuable experience in property transactions and in intellectual property. Mark also completed a Professional Placement whilst completing his law degree where he provided legal advice on various family law matters through the Monash Law Clinic.

Mark is a member of the Family Law Section of the Law Council of Australia, and the Law Institute of Victoria. Mark volunteers at the Darebin Community Legal Centre and has provided advice on a range of issues including family law.