ByLawyers News and Updates

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Family Law Act – FED

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Changes to the Family Law Act 1975 (Cth) under the Family Law Amendment Act 2024 have effect from 10 June 2025.

The bulk of the amendments relate to property matters, including:

  • significant changes to s 79 of the Act by codifying the four-step process and bringing the s 75(2) considerations into s 79;
  • introducing a new s 79(5) concerning material wastage of assets by one party and the treatment of liabilities;
  • new principles for conducting proceedings;
  • adding the pre-action disclosure obligations in the FCFCOA’s rules into the Family Law Act;
  • requiring greater consideration of the impacts of family violence on property division, including introducing a new 79(4)(ca) relating to the effect of family violence on a party’s ability to make contributions to the marriage, and adding examples under the definition of family violence of economic or financial abuse;
  • a new s 79AA making property orders enforceable against the estate of a deceased party;
  • a new definition of companion animals and the ability for the court to make orders about ownership of them, including transfer to a third party;
  • extension of the Less Adversarial Trial process to property cases in certain circumstances;
  • expanding the court’s power to order arbitration.

Amendments that are not specific to property cases include:

  • repealing ss 44(1B) and 44(1C) to remove the limitation on divorce orders within 2 years of marriage;
  • the requirement for an appearance at a divorce hearing by a sole applicant where there are children under 18 years;
  • updating the costs provisions in the Act by introducing a new Part XIVC and repealing ss 117, 117AA, 117AC, 117C(2);
  • more comprehensive regulation of children’s contact services;
  • introducing a new Division 1B in Part XI, being a scheme to protect sensitive information held by professional service providers.

The By Lawyers Property Settlement and 101 Family Law Answers publications have been updated accordingly.

Some changes under the amending Act commenced on 11 December 2024. They related to Commonwealth Information Orders in children proceedings, and separation declarations relevant to financial agreements. The Children and Financial Agreements commentaries have already been updated for those changes.

In the course of these updates, all the By Lawyers Family Law publications have been thoroughly reviewed and enhanced. Subscribers will notice new and revised commentary, re-ordering of content in the commentaries and on the matter plans, new and amended precedents, new cases, and updated links to legislation and other useful resources. As always, we welcome feedback from our users about these publication updates to: askus@bylawyers.com.au

Costs agreements – All states

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Enhancement of By Lawyers costs agreements

All By Lawyers costs agreements have been reviewed, consolidated, and reformatted to ensure they are in strict compliance with all applicable regulatory requirements in each state and territory, and to improve presentation and readability.

A good cost agreement precedent provides transparency, reduces disputes with clients over fees, and ensures that firms get paid. It is important these documents are correct, however, the increasing complexity of cost disclosure requirements makes this difficult. By Lawyers precedents provide firms with accurate and effective costs agreements for all matter types in all jurisdictions.

Summary of key changes

  • A key enhancement is the inclusion of a Terms and Conditions section, which consolidates general information that applies across all matters.
  • All related information has been grouped together to assist with readability and comprehension.
  • A Next steps section has been added, outlining the steps required to be taken by the client to move the engagement forward.
  • The automation in relation to fees, disbursements, and internal expenses has been improved for LEAP users.
  • The scopes of work, now available under each cost agreement on the matter plans, have been enhanced. For LEAP users, scopes of work can be added to a costs agreement via the Insert Clause feature. See Inserting a Clause on the LEAP Community page. Alternatively, all users can simply cut and paste the scope into the precedent.

New categories of costs agreements

The By Lawyers costs agreements have been simplified into 4 categories in most states and territories:

  1. Costs agreement: suitable for most matters.
  2. Costs agreement – Estate administration: specific to applications for probate and letters of administration and administering the estate.
  3. Conditional costs agreement: suitable for litigation such as personal injury claims where the firm agrees to act on a no win no fee basis.
  4. Conditional costs agreement – Uplift fee: suitable for litigation in jurisdictions where the relevant legislation permits an uplift to be applied to the total costs for a successful outcome.

The new costs agreements and scopes of work have been added, as appropriate, to folder A. Getting the matter underway on all matter plans.

Family Law regulations – FED

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The following changes to various regulations under the Family Law Act apply from 1 April 2025:

The new provisions are substantially the same as the old ones, but they are renumbered and have minor drafting changes to modernise them and support the operation of the Family Law Act after some recent amendments.

Regulation 53 of the 2024 Regulations now contains the prescribed Information Sharing Agencies for the purpose of the Federal Circuit and Family Court of Australia being able to issue Information Sharing Orders.

The superannuation regulations support Parts VIIIB and VIIIC of the Family Law Act 1975 by prescribing:

  • the methods and factors for valuing superannuation interests;
  • the way in which superannuation payment flags and splits are put into effect; and
  • the information that trustees must provide to parties to property proceedings, and to couples negotiating a superannuation agreement.

The Family Dispute Resolution Practitioners Regulations provide for the accreditation, certification, and administration of such practitioners.

By Lawyers Divorce, Children, Financial Agreements and Property Settlement guides have been updated to reflect the new regulations as required.

The following FCFCOA forms have changed to update references to the regulations:

  • Consent order kit;
  • Application for consent orders;
  • Superannuation information kit;
  • s 60I Certificate of Dispute Resolution;
  • Application in arbitration;
  • Form 1 (previously Form 1A) – Request for service abroad of judicial documents and certificate;
  • Form 2 – (previously Form 2A) – Summary of the documents to be served;
  • Form 6 – Application for arbitration;
  • Form 7 – Application relating to relevant property or financial arbitration;
  • Form 8 – Application to register arbitration award;
  • Form 9 – Application to register decree affecting registered arbitration award;
  • Response to an application in an arbitration;
  • Subpoena in arbitration.

The new version of the s 60I certificate must be used after 1 April 2025 but certificates in the old form issued within 12 months will still be accepted.

AI prompts – ALL states

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AI prompts are transforming legal document drafting. Technical precision in prompting artificial intelligence can significantly improve the utility and credibility of its output, especially when the AI draws exclusively from data contained in client matters and not from outside sources.

A well-drafted AI prompt acts like a clear direction from a senior lawyer to a junior about how to prepare a document. It sets precise parameters for the task, identifies the required information and where it must be drawn from, specifies the document’s form and any legal or procedural rules with which it must comply, and forbids the use of external or unauthorised sources, including invention – or in AI’s case, hallucination.

The outcome of using an AI prompt in a matter that contains sufficient reliable data should be a competent first draft of a document that the lawyer can then refine and perfect, either with or without further input from AI.

Even if sufficient data is not available in the matter to satisfy the prompt’s requirements for the document, the AI will identify the missing data the lawyer needs to obtain via instructions or other means.

By Lawyers is pleased to introduce AI prompts to our publications, helping our subscribers harness the power of LEAP’s Matter AI.

Initially, prompts for letters, affidavits, statutory declarations, and briefs to counsel are being added to the following guides:

  • Sale and Purchase of Real Estate – All states;
  • Mortgages – NSW;
  • Family Provision Claims – QLD;
  • Family Provision Claims – VIC;
  • Probate and Letters of Administration – VIC;
  • Family Law – Divorce, Children, and Property Settlement – FED;
  • Personal Injury – VIC; and
  • Transport Accident Commission Claims – VIC.

By Lawyers will continue adding AI prompts to our publications as part of our regular and ongoing commitment to enhancing our content and helping our subscribers enjoy practice more.

Like all By Lawyers precedents, AI prompts will be updated as required for any changes in the law and practice.

We welcome feedback and suggestions from our subscribers about AI prompts.

Subpoenas – FED

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A new Practice Direction concerning electronic inspection of material produced under subpoenas has come into force in the Federal Circuit and Family Court of Australia.

It applies to family law proceedings filed in the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) and replaces the Court’s Special Measures Information Notice – COVID-19 Electronic Subpoena Inspection.

The new practice direction is to be read together with the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

When seeking to inspect subpoenaed material, parties and legal practitioners must provide the following information in their request:

  • file number;
  • date and type of court hearing, conference or expert report;
  • specific material that access is being requested to, and whether it is ‘inspection only’ material (see below, as defined in rule 6.37(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021);
  • confirmation that a Notice of Request to Inspect has been filed;
  • whether electronic access to the material is sought;
  • a copy of photo identification or confirmation that they are a lawyer acting on behalf of a party, and the law firm at which they work.

Requests can be made by email. Each registry has a subpoena email address, as listed in the practice direction.

If the material to which access is sought is not inspection only material, and photocopy access is permitted, the registry will provide the material electronically if possible directly to the party or practitioner requesting the material, usually by email.

Inspection only material is:

  • child welfare records, criminal records, medical records and police records, as defined in the Rules; and
  • any other material excluded from photocopy access by order of the court.

Electronic access to inspection only material will not be permitted unless there are exceptional circumstances. Instead, the material needs to be inspected in person at a registry.

The practice direction also makes provision for the tendering of subpoenaed material at a hearing.

The By Lawyers Family Law Property Settlement and Children publications have been updated accordingly, along with the information about subpoenas in family law matters in the 101 Subpoena Answers reference materials.

Family Law Act – FED

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The Family Law Amendment Act 2024 received assent on 10 December 2024. It makes significant changes to the Family Law Act, some of which have already commenced.

Amendments that commenced on 11 December 2024

The following amendments have commenced.

Commonwealth Information Orders

If a child’s whereabouts are unknown the court can issue an order requiring any person or a government department to provide the court with information about the child’s location. Such orders are known as location orders, as defined in s 67J. They include Commonwealth information orders (CIOs) which are directed to government departments or Commonwealth authorities.

A person with rights under a parenting order or otherwise concerned with the child’s care, welfare, and development is entitled to apply to the court for a location order : s 67K of the Family Law Act.

The requirements for, and content of, CIOs have been changed by the amending Act.

A CIO can require one-off or periodic searches for information for a period of up to 12 months.

In addition to location information, orders can require production of information about any violence to children and persons related to or having a connection with a child.

A new s 67NA defines persons related to a child for the purpose of a CIO to include anyone biologically related, and anyone involved with the child under a fostering arrangement.

CIOs override any provision of a Commonwealth or state law that prohibits the communication, disclosure, or publication of information or documents.

As with all orders, the child’s best interests are the court’s paramount consideration: s 67L.

Separation declaration requirements

Section 90XP of the Family Law Act has been amended in relation to the wording that must be included in a separation declaration under that section. These declarations are required to be made by at least one party to a marriage or de facto relationship, where the parties have entered into a superannuation agreement on separation.

There is no longer a requirement for these statements to mention that the parties have lived separately and apart for a continuous period of at least 12 months, and that there is no reasonable likelihood of cohabitation being resumed. The declaration under this section is now only required to state that the parties are married, or have lived in a de facto relationship, but are separated at the time of the declaration. Or, if a spouse is deceased, that they were separated at the date of death.

The sections of the Act referencing the low-rate cap for superannuation balances have been repealed.

Publication updates 

The full commentaries in the By Lawyers Family Law Children and Financial Agreements publications have been updated.

The Children matter plan now includes the following precedents:

  • Commonwealth Information Order – One-off location search;
  • Commonwealth Information Order – One-off location search plus violence information;
  • Commonwealth Information Order – Periodic location search;
  • Commonwealth Information Order – Periodic location search plus violence information.

The following precedents have been amended in the Financial Agreements matter plan:

  • Separation declaration pursuant to s90XP (superannuation split);
  • Superannuation agreement SMSF – After separation; and
  • Superannuation agreement – After separation.

Amendments that commence on 10 June 2025

Most of the changes under the amending Act concern the framework for property orders, the principles for conducting property and other proceedings, and the parties’ duty of disclosure. Those amendments commence 6 months after assent, being 10 June 2025. See Looking to the Future in the Reference Materials folder of all By Lawyers matter plans for more information about those changes.

By Lawyers Family Law publications will be updated when the further amendments commence.

Defaulters List – FED/NSW

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Family Law Defaulters List – Sydney Registry pilot

The Sydney Registry of the Federal Circuit and Family Court of Australia (FCFCOA) is operating a Defaulters’ List, as a pilot project, from October 2024.

The purpose of the list is to ensure compliance with the relevant Family Law Rules, and with any case management orders and directions made by the court in family law or child support proceedings.

The list is governed by the FCFCOA’s Family Law Practice Direction: Defaulters’ List, which:

  • sets out when a party is deemed to be in default;
  • provides that the onus is on the defaulting party to show cause why a sanction or penalty should not be applied; and
  • notes the powers of the court to sanction and penalise parties, including as to costs.

In considering a show cause application the court can consider:

  • the interests of the parties in the proceedings and the administration of justice by the court more generally;
  • whether the application for relief has been made promptly;
  • whether the failure to comply was intentional;
  • whether there is a good explanation for the failure;
  • the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
  • whether the failure to comply was caused by the party or their legal representative;
  • whether the trial date or the likely trial date can still be met if relief is granted;
  • the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party;
  • whether all parties consent to the step being taken after the specified time;
  • any other matter that the court consider relevant.

See the By Lawyers Family Law – Children and Family Law – Property Settlement commentaries for more information about dealing with breaches of orders.

Costs – All states

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By Lawyers 101 Costs Answers reference manual has been extensively reviewed and enhanced.

This comprehensive reference manual is available in the Reference materials folder on all By Lawyers matters plans. The 101 Costs Answers guide is also as part of the By Lawyers Practice Management publication.

Commentary enhancement

An important new section of commentary has been included dealing with disclosure before settlement in litigation matters. Barrister Philippe Doyle Gray, who we are delighted to welcome to the ranks of our authors, covers in detail the requirement under the Legal Profession Uniform Law for clients to receive advice about the cost implications of settlement. Philippe has also made his helpful Settlement Computer available via a link in the By Lawyers commentaries. This automated spreadsheet assists practitioners with the sometimes complicated calculations required to properly give disclosure before settlement, taking into account the various possibilities for the resolution of a matter.

The new section of commentary has been added to the By Lawyers litigation and injuries guides in those states where the Legal Profession Uniform Law applies, namely New South Wales, Victoria and Western Australia.

New precedents

Two new precedent letters to the client have been added to provide clients with the necessary disclosure before settlement:

  • Letter to client – Costs disclosure before settlement – NSW, VIC and WA;
  • Letter to client – Costs disclosure before settlement – QLD, SA, TAS, ACT and NT.

There is one precedent letter for Legal Profession Uniform Law states and one for the other jurisdictions where costs disclosure before settlement is not mandatory but is nonetheless best practice.

These new letters are available in the If required – Updating costs disclosure and security for costs folder on all By Lawyers matter plans. They are also available on the relevant litigation and injuries matter plans under Going to court.

Costs agreements

By Lawyers extensive suite of costs agreements that comply with the regulatory requirements in each state are currently under review. Keep an eye out for a future News & Updates post when the revised versions are published.

Publication reviews – All states

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Publication reviews are part of By Lawyers’ commitment to quality and keeping our subscribers up to date with changes in practice and procedure.

Our publication reviews target commentaries, or precedents, or both. The purpose of the reviews is to update and ensure consistency in styles, formatting, hyperlinks, naming protocols and, if necessary, the substantive content.

The results of a review can include new, amended, or deleted commentary, commentary headings, and precedents.

Sometimes the title or location of a precedent will be altered.

Occasionally there are amendments to the sequence of folders, commentary headings, precedents, and hyperlinks on the matter plan.

Any changes applied will be reflected in an amended matter plan.

Practitioners using our guides will not always realise when a publication review has been conducted. However, sometimes the resulting changes will be apparent, and amendments or enhancements might take a moment to get used to.

Lately, our in-house team, in conjunction with our authors in the various jurisdictions around Australia, have been focussed on reviewing the Full Commentaries in the following publications:

Some of these are still a work in progress, so keep an eye out for any changes.

We love to help our subscribers, and we love feedback. If you have any questions or concerns about changes arising from a publication review, do not hesitate to let us know. We are always happy to discuss any change we have made, or consider others. If you can’t find a section of commentary or a precedent, send us an email and we will point you in the right direction.

And, if you like the changes we have made, please take a moment to let us know so we can continue helping you to enjoy practice more.

Our email is: askus@bylawyers.com.au

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