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LETTER WRITING IN FAMILY LAW DISPUTES

Michael FellowsSir George Kneipp Chambers

LETTER WRITING IN FAMILY LAW DISPUTES

Michael FellowsSir George Kneipp Chambers

I think legal proceedings often encourage parties to make the

most ambitious possible claim that they can. I think sometimes

lawyers forget that people who are involved in the applications

lawyers prepare, read those applications and are shocked and

frightened by them, whereas lawyers just regard it as

another ambit claim.

per FM Brown - Moreau & Brenna [2007] FMCAfam 689 at paragraph 4

… it is a tale

Told by an idiot, full of sound and fury

Signifying nothing

The ethical obligation

Civility of discourse in the operation of the law reinforces the

contribution which our fundamental social institutions make

to our social cohesion … ours is a profession of words. We

must continue to express ourselves in a way that

demonstrates respect for others … [it is] … a fundamental

ethical obligation.

Spiegelman AC, CJ

Solicitors Rule 21

A solicitor … must … [ensure] that the solicitor’s

communications are courteous and that the solicitor

avoids offensive or provocative language or conduct

LSC v BakerLSC v Winning

Obscurity in thought inexorably leads to obscurity in language

juror misunderstandings – the form of evidence

“if you have to make it complex then the chances are its

wrong”

a good negotiator listens more than she or he speaks

… Even the choicest words lose their power when they are used to overpower.

Attitudes are the real figure of speech.

Edwin Friedmann

Attitudes matter because

1.Most cases settle – be combative only when necessary

a party must have regard to “the impact on the intended reader (in particular the parties)”

2.Even at trial – you/your client is answerable for attitudes expressed

‘everyone knows that little girls should be with their mother’

‘we are not a family’

Mr Bray is a member of a Brisbane firm of solicitors. During the income year 30 June 1974 he was in receipt of a substantial professional income which in the ordinary course would lead to a substantial liability for tax.He was a reluctant taxpayer.

Bowen CJ Bray v FCT 1974

1. Cultivate simplicity and directness of language

2. Confine each paragraph to a single topic

3. Use paragraph numbering; adequate spacing

4. Use neutral language

5. Use aggression only when truly necessary

The content of correspondence

1.The orders sought must be reasonable in thecircumstances

2. We must assist the ‘just, timely, and cost-effectivedisposal of the case

3.Identify issues ‘genuinely in dispute’

3.Be satisfied that there is a ‘reasonable basis’ for alleging,denying or admitting a fact

FCR 1.08

5. Avoid protracted, unnecessary, hostile and inflammatory exchanges

6. Seek only those orders that are reasonably achievable

7. Do not raise ‘irrelevant issues or issues that may cause the other party to adopt an entrenched polarised or hostile position

FCR Schedule 1 paragraphs 1(6) and 1(7)Willis FM in Macri v Florio [2010]

Judicial expressions of frustration

McClay 1996 [Full Court]Phillips 2009 [Barry J]Throsby & Pike 2008 [Altobelli FM]Garvey & Eccles 2008 [Altobelli FM]Bagala 2009 [Riethmuller FM]

… on our analysis there is no factual or legal basis todistinguish between the contributions made by eitherparty to the relationship and our client suggeststhat the case be conducted on that basis. Subject toreaching agreement as to the property pool it followsthat the only substantive matter for consideration iswhether your client is entitled to an adjustment byreference to the matters set out in s. 75(2).

If your client disagrees might we have short particularsof the basis for disagreement?

… We acknowledge that your client may wish to arguethat he is entitled to an adjustment because of the facthe owned the property which was to become thematrimonial home. Does your client agree that thisis the only substantive matter concerning contributionsand that both parties should concentrate upon that issue?

Typical [unnecessary] arguments in correspondence

1.FaultBrown & Green [1999]

2.Hogan ordersStrahan & Strahan [2009]

3.Domestic violenceKennon [1997]

Correspondence has legal consequences

1.Cyclone Larry had unintended professional consequences!

Lambert [2010]

2. Settlement offers need to be clearJohnston [2004] Harris [1987]

3.Ambit claimsHuxley [2008]Louis Vuitton v Design Elegance [2006]

I dislike adjectives

… our client rejects the assertion that she is presentingyour client with a fait accompli and is simply expressingher very serious concerns … [our client] is bitterly disappointed and frustrated that your client is not willingto participate in meaningful counselling and mediation

We are not mouthpieces – Solicitors rule 13.1