Drafting for Maximum Impact in Family Law - a series of 5 video webinar programs

Program 1: Affidavit Sense and Sensibility in the Family and Federal Courts

One of the most important tasks in litigation is the preparation of an affidavit which will assist the trier of fact. This session provides a deep dive into the key elements of affidavit drafting and how to create a document that promotes and enhances your client’s case, including:

• Why an affidavit can make or break your case
• Whose words? Truth, focus and language
• Does the content satisfy the relevance test?
• Forms and rules in the Family and Federal Courts – what you need to know
• Finessing the format: headings, paragraphs and numbering
• Using annexures and exhibitions to assist not detract
• Tips for drafting an affidavit in response
• What your opponent will be looking for and how to head them off
• Common objections and how to avoid them
• What judges want to read in your affidavit

Program 2: What Needs to be in a Family Law Arbitration Agreement?

Arbitration under the Family Law Act requires the parties to initially enter into an agreement for the conduct of the arbitration. This session provides a guide to drafting an agreement that meets both legislative requirements and improves the outcome for your client, including:

• How is the arbitration process regulated?
• What matters are proscribed for the arbitration agreement? Who prepares the agreement?
• Determining and describing the issues for arbitration
• Working out a timetable for the arbitration, including preliminary activities and hearing
• Processes for conduct of the arbitration including rules of evidence and cross-examination
• In what situations should the arbitration be suspended or terminated?
• Obligations of confidentiality and specifying exceptions
• Should the arbitrator be given immunity?
• Appeal rights and limitations – what if one party is unhappy with the award?
• Other matters to include in the agreement and examples of potential clauses.

Program 3: Drafting Subpoenas in Family Law that Withstand Scrutiny

Subpoenas in family law matters for production and/or to give evidence are often required to provide the issuing party with information they may not otherwise have. However, general “fishing” expeditions can result in problems down track. This session will provide advice for drafting effective and valid subpoenas, including:

• When should a subpoena be issued?
• What are you looking for? Determining relevance and usefulness
• To whom should a subpoena be directed?
• Identifying the receiving party in a corporate or organisational setting
• How to identify and describe the documents being sought – phrases to use and to avoid
• What are the obligations of the subpoena recipient?
• When will a subpoena be oppressive or an abuse of process?
• Cases and drafting examples.

Program 4: It’s an Order: Drafting Family Court Orders with Precision

Drafting orders can be challenging, and not thinking carefully at the drafting stage can lead to significant problems down the track. This session will look at the common pitfalls and problems in drafting orders, and provide guidance on how to draft an order that meets the needs of the parties and requirement of the court. It covers:

• Types of orders and associated legislative requirements – checking the power
• Achieving the intention – drafting with purpose in mind
• Interim or final? The practical differences and approaches
• Specifying the obligation and avoiding ambiguity
• Time provisions and other limitations
• Tips on drafting Parenting Orders
• Orders involving third parties
• Incorporating consequences for default
• Future-proofing orders: anticipation of potential issues and problems and ensuring finality
• Drafting disasters: recent cases

Program 5: Binding Financial Agreements: Drafting with the End in Mind

The reality is that, for some clients, happily ever after will involve the parties going their separate ways. When relationship breakdown occurs, how watertight will your financial agreement be? This session takes a practical look at some of the risky clauses in a binding financial agreement that may render them non-binding and lessons from recent cases. It includes:

• When are BFAs appropriate? When should they be avoided?
• Key drafting tips and traps
• Can you quarantine assets?
• Risk factors in BFAs:
  • Undue influence
  • Unconscionable conduct
  • Duress
• Mistakes – when is court rectification possible?
• Section 90G, evidentiary value of the Statement of Advice and the shifting onus
• Negligence claims and accrued jurisdiction
• How to protect oneself as a practitioner if there is scant disclosure and the client insists on doing the deal anyway
• Lessons from recent cases