QUARE FREMUERANT GENTES?
LETTER WRITING IN FAMILY LAW DISPUTES
Michael Fellows
Sir 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 Baker
LSC 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 the
circumstances
2. We must assist the ‘just, timely, and cost-effective
disposal 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
Phillips
Throsby & Pike
Garvey & Eccles
Bagala
1996 [Full Court]
2009 [Barry J]
2008 [Altobelli FM]
2008 [Altobelli FM]
2009 [Riethmuller FM]
… 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?
… 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?
Typical [unnecessary] arguments in correspondence
1. Fault
Brown & Green
[1999]
2. Hogan orders
Strahan & Strahan
[2009]
3. Domestic violence
Kennon
[1997]
Correspondence has legal consequences
1.Cyclone Larry had unintended professional
consequences!
Lambert [2010]
2. Settlement offers need to be clear
Johnston [2004]
Harris
[1987]
3.Ambit claims
Huxley
[2008]
Louis Vuitton v Design Elegance [2006]
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