Monday, 26 April 2010

Government to ban commissions for financial planners and forcing them to act in the best interests of clients: Australian http://ow.ly/1CTby

Wednesday, 21 April 2010

Anti-discrimination legislation to merge into one: government http://ow.ly/1B8nT

Friday, 16 April 2010

Lesbian co-mothers are not parents under Family Law Act, but can seek orders about the children: court http://ow.ly/1z4zL

Wednesday, 7 April 2010

Family Court: setting aside should be part of property settlement trial

The Full Court of the Family Court has recently held that trial judges should avoid hearing setting aside proceedings under section 106B of the Family Law Act separately from the related property settlement proceedings under section 79 of the Family Law Act.

In VC and GC, Justices Warnick, Boland and Thackray held:

It is generally undesirable to have a discrete hearing of a s 106B application. This is especially so where, as was the case here, findings of credibility are likely to be important. The judge may well make a favourable or unfavourable finding in determining the s 106B questions but, in the light of what subsequently transpires in the balance of the s 79 proceedings, wish that he or she had not done so.


Also the questions that are answerable in a discrete hearing may be more limited than is often appreciated. Questions of intention and whether an order was “anticipated” or not may be answerable, but whether, even if those questions are answered affirmatively, an anticipated order is likely to be defeated, might well not be answerable until the completion of s 79 proceedings

Tuesday, 6 April 2010

Family and Federal Magistrates Courts protocol for division of work

The Chief Justice of the Family Court and the Chief Federal Magistrate published a protocol on 29 January 2010 for the division of work between the two courts:


The Chief Justice and the Chief Federal Magistrate have published this Protocol for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them. The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.



If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).



1. International child abduction.



2. International relocation



3. Disputes as to whether a case should be heard in Australia.



4. Special medical procedures (of the type such as gender reassignment and sterilisation).



5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.



6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.



7. Complex questions of jurisdiction or law.



8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.



Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.





Transfers



1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.



2. There is no right of appeal from a decision as to transfer.