This piece of assessment is designed to assess the following unit objectives:
- demonstrate knowledge of the basic principles of family law;
- demonstrate an ability to apply the basic principles of family law to practical situations;
- knowledge of how to complete the current forms and applications for divorce;
- demonstrate knowledge of the relevant family law legislation;
- demonstrate an understanding of the way in which the Family Court operates in the Australian legal setting;
- recognise the way in which State and Commonwealth laws apply to family violence and child abuse;
- demonstrate an increased confidence in your ability to research, write and solve legal problems associated with family law.
TIPS AND MARKING CRITERIA
Letter of advice
The first part of your task involves the preparation of a letter of advice based on the facts appearing below under the heading “Instructions”.
A letter of advice is quite a common task in legal practice. The letter should begin with a brief statement of the facts and circumstances giving rise to the need for advice. For instance, a letter of advice might begin in the following way;
You have instructed us that you have just separated from your husband of 65 years. You are seeking a financial settlement with him that would allow you to keep the matrimonial home and you seek my advice as to whether this may be achieved by entering into a Financial Agreement as provided under the Family Law Act. My advice is as follows:
The letter then sets out advice on the issues raised, explaining what it is that the client needs to know.
The letter of advice you are required to prepare in this assignment will be used as a vehicle to demonstrate your knowledge and understanding of the law, remedies and applicable procedures. The advice must be comprehensive and correct, but it must also be clear and concise.
Accordingly you should:
- use plain English, but in a way appropriate for a formal communication between a professional and a client;
- avoid errors of grammar, syntax, spelling and punctuation;
- use a layout which is logical and easy to follow, adopting where appropriate, headings;
- paraphrase legislative provisions, cases, academic sources and the like, instead of quoting them in full.
A letter of advice should end with summary of the detailed advice already given and provide clarity as to what the next step will be and by whom .
Having read this letter the client should be able to say, ‘I understand what has been said in this letter and it tells me all I need to know and what I need to do’.
You should use footnotes (even though in ‘real life’ you would not do so) so we can ensure academic integrity principles are being followed.
Marking criteria
The following general criteria are relevant for the writing of letter of advice:
- We will be assessing the quality of the advice contained in the letter.
- Is the content of the letter accurate?
- Is it relevant?
- Is it complete?
- We will then look at the way the letter is written.
- Have you used plain language?
- Is the letter:
- written for the reader?
- written to achieve its purpose?
- well organised?
- Did you use language appropriately?
- Is the layout, design and presentation of the letter effective and appropriate?
- Has the letter been referenced in accordance with the AGLC?
Draft an Application for Divorce
An important aspect of family law practice is the completion and filing of forms. For this component of the assessment you are required to download and complete an Application for Divorce for the client’s consideration using the information in the memo under the heading “Instructions”. Where any information has not been provided in the instructions you are expected to complete the form using ‘assumed’ information, that is further information and instructions which you would have obtained from the client in a telephone call or further conference once you identified the further information required. Do not leave blanks in your application or use the letter to ask for further information necessary to complete the application.
You will be required to access and download the Application from the Family Law Court website.
Marking criteria
The following general criteria are relevant for the Application for Divorce form.
We will look to see whether you have:
- identified the correct form for the task specified;
- indicated an understanding of the legislation and court rules;
- applied the factual situation carefully and precisely to the task;
- demonstrated care and accuracy in filling the form; and
- demonstrated appropriate drafting skills.
INSTRUCTIONS
You receive the following memo from the solicitor in the firm that you work for.
The details are as follows:
Our client Jack Sparrow is an actor, but was previously a sea captain who retired from his chosen profession following a maritime mishap involving his ship, the Black Pearl and a giant squid. He married his current wife Buffy Summers at Lighthouse Beach, Byron Bay on 16 October 2002 in the midst of a violent storm.
Jack Sparrow was born on 12 March, 1971 in Kingston, Jamaica. He came to Australia as a stow-away in 1986, and took Australian citizenship in 2000. Following his adventures at sea, he has had a moderately successful career as an actor starring in a series of small, low budget movies based on the adventures and misadventures of a band of pirates as they confront various supernatural forces.
His wife Buffy Summers was born 12 January 1977 in Melbourne, Victoria. Before meeting our client, she travelled extensively throughout the USA and Eastern Europe. According to our client, during her travels she had some unfortunate experiences in Transylvania which traumatised her and eventually led to her obsessive behaviour which has severely impacted on the marital relationship.
Prior to the marriage, Buffy had established a paranormal investigation business known as “VampBusters”, specialising in detecting and removing vampires. This business, which she ran with limited assistance from a small number of employees, involved various practices relating to the use of garlic, holy water and crosses, but also involved extreme methods of physical removal. As a result, at the time of running her business and at all times since then she has been exceptionally fit and strong physically, and capable of acts of extreme violence. She has on several occasions been prosecuted for acts of cruelty involving bats, but the evidence has always disappeared when exposed to the light of day, so she has no convictions.
After the marriage, our client and Buffy settled down in the family home which is located at 27 Cutlass Place, Ballina, NSW. She adopted the surname Sparrow when they married but has now reverted back to her maiden name.
There are three children of the marriage; Elizabeth Swann Sparrow born on 10 June 2007, Hector Barbossa Sparrow born on 4 July 2010 and Drusilla Banshee Sparrow, born 1 January 2012.
The marriage was initially happy while our client was mostly at sea but that didn’t last after the giant squid incident drove him ashore. Buffy’s obsession with supernatural things and her fear of night created tensions between them. Our client instructs us that his relaxed attitude towards the unexpected seemed to create more tension in the household. After Druissa was born it suddenly became much worse. On 28 June 2014, Buffy packed her personal belongings, said goodbye to Jack and the children and told them she was heading back to Transylvania to complete unfinished business. Jack told her once she walked out he would consider her gone forever, and she would never be welcome back. She simply shrugged her shoulders, walked out the door and was gone.
Naturally, our client was devastated and relied on his friends to help with the children. Davy Jones, Will Turner and Angelica all moved in to the house to provide support and help for our client.
Then on Christmas Day, 2014 Buffy reappeared and the couple decided to try to reconcile. Buffy moved back into the matrimonial bedroom with Jack, and Davy, Will and Angelica stayed on at the house in the guest rooms.
It wasn’t long before Buffy’s behaviour became worrying, and on 12 March 2015 she moved out of the matrimonial bedroom and onto the veranda at the rear of the house where she stayed awake each night, armed with sharpened stakes. Jack now realised the reconciliation was a big mistake and wished it had never happened. He told Buffy it was over and asked her to leave.
Buffy refused and for the sake of the children, our client agreed to her staying on the veranda
until such time as she was able to find suitable accommodation. During this time Buffy saw the children every day, but did no cooking, washing or other domestic duties as she slept during the daylight hours. Buffy refused to let anyone do any cleaning of her “room”, and refused to wash any of the kid’s clothes. Jack and his friends ate together and Buffy ate separately, mostly eating garlic flavoured foods. They did not go out together to any parties, functions or extended family celebrations, such as the 21st birthday party for Jack’s adopted baby brother Edward Teach. Buffy started using her maiden name, opened her own bank account and started operating her business Vampbusters, again.
Buffy finally moved out on 31 May 2015 and is living not far away at 6B Galleon Avenue, Lennox Head. Jack has remained at the family home, with each of the children having their own bedroom. Davy and Will have moved into the boatshed. Angelica stayed briefly, but left once Jack met his new friend Vampirella several weeks ago at a local nightclub, the Brigg ‘n’Shore.
Hector and Elisabeth are both healthy although Druissa has many food allergies and seems to only be able to digest uncooked meat. She is very pale and experiences severe sunburn if exposed to daylight for even short periods of time. She is regularly taken to Dr VanHelsing, who is monitoring her condition and treating her with various medications. Her condition is one that requires constant attention and vigilance. All children had until recently been generally happy, but Hector now seems unsettled and demonstrating some behavioural problems at the Bay of Shoals preschool where he attends 3 days per week. Elizabeth has also recently been seen attacking other children at the Keelhaul primary school during playtime, but otherwise is performing very well at school, being bright and creative. She has been seeing Dr Sigmund Freud for counselling recently and this will continue.
The older 2 children stay with their mother every alternate weekend, but Druissa stays with Jack as Buffy refuses to touch her or have anything to do with her.
There is, additionally, something disturbing going on at present. Jack recently met Vampirella Necropolis, and says that he thinks she is ‘the one’ as he can’t stop thinking about her and wants to marry her as soon as possible.
Since Jack started this new relationship, Buffy has been harassing him with phone calls at all hours of the day and night during which she screams and sobs at him, demanding he break it off with Vampirella. She has also been contacting Vampirella’s employers at her place of work, Stiffys Funeral Parlour, making wild accusations about her activities whilst working the night shift. At first Jack was not concerned in part due to his relaxed approach to life and his faith that everything works out in the end, but over the past few weeks he has been told by Davy Jones that Buffy has been making dozens of sharpened wooden stakes, and has her vampire slaying equipment ready for use. Vampirella has received emails from Buffy saying “Die, spawn of satan” and has had red crosses painted on her front door whilst she is at work, or at Jacks. She has also noticed Buffy following her when she leaves the house. Jack believes Buffy is suffering from some psychosis resulting from her earlier trauma, ongoing sleep deprivation and the use of some kind of drugs and is afraid of what she is capable of in her current state of mind.
Buffy has not assisted with any of the expenses of the children nor contributed to the household expenses. All the children are becoming afraid of Buffy. Elizabeth and hector are uncomfortable around Vampirella, but Druissa is very happy in her company.
Buffy has also recently been meeting with her best friend, Barnaby Joys, who is a minor government official. He has threatened to have Jacks pet dogs destroyed because they are a risk to the neighbourhood even though they are in perfect health, vaccinated and have never been outside the house.
INSTRUCTIONS
Our client says that he wants us to do two things:
- He wants to divorce his spouse and has instructed us to draw up the appropriate application on the correct form so that it can be filed with the Court.
- He needs advice about how to take out some sort of restraining order.
Using the information I have given you, please draw up the divorce application. Then draft a letter of advice to send to our client.
In the letter you should:
– Advise how much the filing fee will be, where we will need to file the application and draw his attention to the brochure that we have to include.
– Advise on the requirement for a divorce, and on the issue of separation. What is the earliest date that we can apply for a divorce and why? What issues will a court need to be satisfied about before granting a divorce? What guidance can you give on procedural issues?
– He is clearly concerned about Buffy’s behaviour so you will need to include advice about how to obtain the most appropriate restraining order in the circumstances and whether such an order would be likely to be granted.
I know there are other matters relating to property and children etc., and our client will need advice on these in the future, but don’t do that now. At this stage I just want you to advise on the matters outlined above.
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