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QUARE FREMUERANT GENTES?

QUARE FREMUERANT GENTES?. LETTER WRITING IN FAMILY LAW DISPUTES Michael Fellows Sir George Kneipp Chambers.

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QUARE FREMUERANT GENTES?

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  1. QUARE FREMUERANT GENTES? LETTER WRITING IN FAMILY LAW DISPUTES Michael Fellows Sir George Kneipp Chambers

  2. 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

  3. … it is a tale Told by an idiot, full of sound and fury Signifying nothing

  4. 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

  5. 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 Baker LSC v Winning

  6. 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

  7. … Even the choicest words lose their power when they are used to overpower. Attitudes are the real figure of speech. Edwin Friedmann

  8. Attitudes matter because • Most cases settle – be combative only when • necessary • a party must have regard to “the impact on the intended reader (in particular the parties)” • 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’

  9. 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

  10. 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

  11. The content of correspondence • The orders sought must be reasonable in the • circumstances • 2. We must assist the ‘just, timely, and cost-effective • disposal of the case • Identify issues ‘genuinely in dispute’ • Be satisfied that there is a ‘reasonable basis’ for alleging, • denying or admitting a fact • FCR 1.08

  12. Avoid protracted, unnecessary, hostile and inflammatory exchanges • 6. Seek only those orders that are reasonably achievable • 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 vFlorio [2010]

  13. 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]

  14. … on our analysis there is no factual or legal basis to distinguish between the contributions made by either party to the relationship and our client suggests that the case be conducted on that basis. Subject to reaching agreement as to the property pool it follows that the only substantive matter for consideration is whether your client is entitled to an adjustment by reference to the matters set out in s. 75(2). If your client disagrees might we have short particulars of the basis for disagreement?

  15. … We acknowledge that your client may wish to argue that he is entitled to an adjustment because of the fact he owned the property which was to become the matrimonial home. Does your client agree that this is the only substantive matter concerning contributions and that both parties should concentrate upon that issue?

  16. Typical [unnecessary] arguments in correspondence • Fault • Brown & Green [1999] • Hogan orders • Strahan & Strahan [2009] • Domestic violence • Kennon[1997]

  17. Correspondence has legal consequences • Cyclone Larry had unintended professional consequences! • Lambert [2010] • 2. Settlement offers need to be clear • Johnston [2004] Harris [1987] • Ambit claims • Huxley [2008] • Louis Vuitton v Design Elegance [2006]

  18. I dislike adjectives … our client rejects the assertion that she is presenting your client with a fait accompli and is simply expressing her very serious concerns … [our client] is bitterly disappointed and frustrated that your client is not willing to participate in meaningful counselling and mediation We are not mouthpieces – Solicitors rule 13.1

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