Do you know how to draft effective family law orders? Is drafting in general terms adequate at the commencement of proceedings? What situations are general orders more appropriate? Do you need to draft precise and comprehensively on each occasion? What are general orders, consent orders, minutes of proposed orders and final orders? Do they require different drafting approaches? Drafting orders is an acquired skill and can be mastered with knowledge and practice. Here at some useful tips!
I remember, when I was studying law and the lecturer talked about “orders” I didn’t have a clue what court orders were or that there were even different types of court orders. Thankfully my knowledge base has improved, but, everyone has to start somewhere! :-) In saying that, I hope Im not the only one who has been in that situation or is in that situation? :-) Even for experienced lawyers drafting orders can be challenging, so this is written to assist solicitors (and law students) develop basic skills in drafting. If you are an experienced drafter, its provided for you as a ‘self test’ and reminder!
Types Of Orders
- General Orders: orders which set out in a general way the nature of the relief sought, oftentimes seen contained in an initiating application or response. e.g. that the matrimonial house be transferred to the wife etc
- Consent Orders: these are orders which both parties agree to, on an interim or final basis. They set out precisely the terms of the agreement and are the most common form of orders
- Minutes of Proposed Orders: these may differ from orders contained in filed documentation. They may advise the court and the other parties, what orders are sought from commencement of proceedings until finalisation, due to the changing nature of litigation in family law, which evolves as time progresses.
- Final Orders: These are precisely drafted orders, contained in a filed document, which the parties are seeking the court to make on a final basis.
General orders are only recommended in a limited number of circumstances, which include:
- submissions for mediation
- offer of settlement [only if not relying upon the document for a costs order]
- conciliation conference document
Now you have a basic understanding of the various orders, how do you draft family law orders effectively?
Tips For Drafting:
- What is the power the court has to make the order you are seeking? For e.g. Pursuant to s 79 Family Law Act 1975 (Cth) and by way of alteration of property interest the husband/wife do X…..(specifically set out)
- The the order to a particular person so that an obligation arises to do / or not do a specific thing. For e.g. the wife/husband is restrained from X…………..
- Think about whether you need provisions if the person defaults on their obligation For e.g. in the event X (respondent/applicant) fails to comply with Order X by the date specified in the Order then the X to X [do whatever act is required]
- The orders must give direction to a person to do a specific thing/act or be restrained from doing a specific act/thing. This requires precise and clear drafting so there is no room for ambiguity in the mind of the court or the parties.
- Prescribe don’t describe. For e.g. the husband/wife shall sell, or cause to be sold, the matrimonial home (descriptive) as opposed to prescribing the processes required to sell the house, for e.g. choosing a real estate agent, method of sale, instructing a solicitor, conveyancer, preparing the house for sale, facilitating inspections, reaching agreement in respect to sale price& division of sale proceeds.
- In parenting orders “spend time’ with also need to be prescriptive. For e.g. when does the order become effective – what time of day, what day does the order commence and end, changeover details who has responsibility to deliver and collect, the time when the order is to operate during school holidays, special events, long weekends etc.
- Have clearly defined time provisions included in the orders
- Draft orders for finality.
- Draft in concise, clear, plain English, which is easily understood by the clients as the clients are required to comply with these orders.
- Its best to draft in a logical and chronological manner.
- Orders must not only cover what is currently relevant but also anticipate future issues and contingencies, to the extent possible, which can be achieved by consideration of a range of thought provoking questions, such as “what are the potential problems which may arise in this case, and do these orders adequately anticipate and cover these problems?”
The greater the degree of prescription, the less room for problems to arise with implementation and enforcement in family law orders. Precedents are useful, to a degree, but they need to be largely modified for each individual case, with its own unique facts.
The principles can be applied to any jurisdiction, when drafting orders.
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