Courtroom Strategies for Family Lawyers: Elevating Your Litigation Skillset – 5 program recorded webinar series

Program 1:  How Late is Too Late? Managing Limitation Periods and Applications to Proceed out of Time

Limitation periods and applications to proceed out of time are critical issues in family law proceedings. Missing a limitation period can have severe consequences, including the loss of important rights and entitlements. At the same time, it can be challenging to determine when an application to proceed out of time is appropriate and how to effectively manage such applications. This practical session explores the key strategies and best practices for managing limitation periods and applications to proceed out of time, including: 

• How late is too late? And does it matter why? The legal requirements of s.44 of the Family Law Act and the circumstances in which the court has authority to consider out of time applications
• Consequences of missing a limitation period for you and your client
• The factors the court considers when deciding whether to grant an application to proceed out of time
• Evidence that should be presented in support of an application to proceed out of time
• Practical and strategic guidance on running (and defending) out of time applications in practice
• How the law has been applied in recent cases, focusing on the facts in matters which supported a finding of hardship in favour of the applicant

Program 2:  Managing and Responding to Defective Applications in Family Law Proceedings

The management and response to defective applications in family law proceedings can present significant challenges for family lawyers. Such applications can be time-consuming, expensive, and can cause unnecessary delays in the court process. At the same time, the consequences of failing to respond appropriately to defective applications can be severe, leading to adverse outcomes for clients. This practical session outlines how practitioners can maximise the benefits from the extensive range of tools and mechanisms available in family law when they are served with a defective or incomplete application. It covers:

• The rules and court procedure of summary disposal and strike out applications and when it may (or may not) be appropriate to run them
• Tips for how to successfully run (and defend) a strikeout application in the family law courts
• Suggestions for drafting pleadings to protect against such applications
• A guide on what to do when faced with a defective application filed by your client
• Minimising the impact of such applications on clients

Program 3:  Show Me the [Interim] Money: Running Interim Spousal Maintenance Claims in FCFCOA

It is no secret that a primary goal of the FCFCOA is to encourage dispute resolution and reduce the time of parties to resolve their dispute whether by settlement or following a contested trial. However, for many the new case management pathways and procedures have not resulted in more expedient resolution. This raises the question of what happens in the meantime? This session will explore how interim issues in property settlement matters ought to be managed and will discuss:

• The difference between the intention and the reality of the new pathways and what lies ahead in the future
• Whether interim spousal maintenance claims have a role to play in the new system and how practitioners should navigate this
• Steps that practitioners could take to assist the Court reduce the number of procedural hearings required in a matter
• The Court's view in relation to interim property settlement applications in the new system

Program 4:  The Role of Kennon in Property Settlements: Is it Time to Move On?

It is rare these days to run a Kennon argument. The evidence required coupled with the further trauma experienced by the victim-survivor giving that evidence does not usually outweigh the minimal adjustment which may be ordered if the Court accepted a Kennon argument. This raises the question of whether a new approach is required to ensure that the impact of family violence on a parties' property settlement is just. This session will examine:

• What is required to successfully run a Kennon argument and practical issues practitioners and clients face when attempting to run Kennon arguments
• When allegations of violent or abusive conduct don't meet the Kennon test – what are the pros and cons of including them in affidavit evidence – fault by the back door?
• Acting for the alleged perpetrator – what can you do
• What are the cases over the last few years telling us about the Kennon claim – are there any trends
• Legal remedies which may exist outside the Family Law Act, including tortious claim for damages, and how such claims may affect and be dealt with as part of a family law property settlement

Program 5:  Safety Concerns and Parental Capacity: Revisiting 'Re Andrews' in Light of Keane

The 'Re Andrews principle' suggests that the capacity of a parent to provide care to their child is impaired when that parent raises safety concerns from the child spending time with the other parent and the court subsequently orders this to occur. In recent years, the application of this principle has been expressed in a variety of ways creating confusion and inconsistency across the profession. This session will examine the following:

• The cases which have applied the Re Andrews principle and analyse the relevant facts which impacted the application of the principle in each case
• How the issue was discussed, and the guidance provided, by the Full Court in Keane & Keane [2021] FamCAFC 1
• Practical tips and insights into what practitioners should do when faced with this scenario in their matters including what to do when a judge appears to be incorrectly applying the principle

Bonus Program:  Saying Goodbye to ‘Shared Parental Responsibility’: Are Better Days Ahead?

The Family Law Amendment Bill 2023 introduces sweeping changes to the way in which parenting matters are determined by the Court. This practical session explores the key changes and how they will impact future parenting matters, including:

• Prioritising children’s safety concerns in parenting matters
• Ending the presumption of ‘shared parental responsibility’
• Understanding the new factors – what do they mean in practice?
• How will a child’s views be given greater prominence?
• The ongoing role of independent children’s lawyers