ByLawyers News and Updates

Immigration – 457 visa replaced with with Temporary Skill Shortage visa and associated reforms to permanent skilled migration programs

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From 18 March 2018 the Temporary Work (Skilled) visa (subclass 457 visa) is abolished and replaced with the Temporary Skill Shortage (TSS) visa. Associated reforms to permanent skilled migration programs are also made from this time (sub classes 186, 187, 189, 190, and 489). These amendments are reflected in our Immigration Publication.

VIC – Powers and Advance Care Directives – Medical Treatment Planning and Decisions Act 2016

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The Medical Treatment Planning and Decisions Act 2016 commenced 12 March 2018. It gives statutory recognition to advance care directives and simplifies and contemporises laws relating to medical treatment decision making for people without decision making capacity. The By Lawyers VIC Powers and Advance Care Directives matter plan, precedents and commentary have been updated accordingly.

Costs – All costs agreements now able to be signed electronically

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All of the By Lawyers costs agreements now have electronic signature fields allowing them to be signed electronically via DocuSign, which is available to LEAP in the cloud users. The fee disclosure for this service has also been added into the disbursement section of the costs agreements, should the client choose to take advantage of this service.

 

Costs – Incorporation of Disclosure Notice into Client Service Agreement – Electronic signature ready

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The Disclosure Notice and Client Service Agreement has now been incorporated into the one document across all Queensland and Federal Guides and electronic signature fields have been added to enable this combined costs disclosure precedent to be electronically signed via DocuSign, which is available to LEAP in the cloud users.

 

Crossing borders – Immigration Law – New Guide

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By Lawyers are delighted to announce the release of our comprehensive new Guide to Australian Immigration Law, providing lawyers and migration agents with detailed but easy to follow commentary and accurate precedents for managing any migration matter, from initial engagement to final determination.

This new publication is a convenient compass for practitioners seeking to navigate Australia’s migration legislation. We cover all types of visa applications and all types of clients, from bridging visas to families seeking reunion with loved ones; from businesses looking to sponsor skilled employees to visas for New Zealand citizens; and many more.

The publication also assists users through the application review process, appeals and ministerial interventions.

Whether your firm is new to this area of practice, is looking to expand its offering, or needs to be able to handle occasional immigration matters for existing clients, this Guide assists practitioners to advise and act with confidence in this critical area.

Family Law Rules – Additional changes as of 1 March 2018

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Documents to be used in conjunction with affidavits

As of 1 March 2018, in the Family Court, a document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to or annexed to the affidavit, or filed as an exhibit to the affidavit.

There may be exceptions where court orders or the Rules provide otherwise: for example r 15.62 in relation to expert reports.

Any document referred to in the affidavit must be served with the affidavit on the other parties after filing. The document must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required: r 15.08(2)

While as of 1 March 2018, the Family Law Rules have changed, providing for annexures not to be attached to affidavits: r 15.08, in matters in the Family Court, the Federal Circuit Court continues to permit annexures to be attached. Given the majority of matters are filed in the Federal Circuit Court, not the Family Court, in practice the norm will continue to be that relevant annexures are attached to affidavits.

Undertakings

Rule 17.06 has been added, relating to undertakings. The rule sets out the form of undertakings and, in summary provides:

  • Undertakings may be given orally or in writing.
  • If they are in writing, it must be signed and filed.
  • If they are given orally, a written record must be made, signed, filed and served.
  • A definition of undertakings as to damages.

We have updated our Property Settlement and Children commentaries accordingly.

Family Law Rules – changes as of 1 March 2018

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As of 1 March 2018, changes came into effect in relation to consent orders in the Family Court.

The relevant By Lawyers publications, Children and Property Settlement, have been updated. The new forms have been linked to the matter plans and the commentary additions consist of the following:

Children changes

What was previously the annexure to consent parenting orders is now incorporated into the Application for Consent Orders form. A separate annexure is no longer required.

Three new forms were added for use in the Family Court.

The Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders) must be filed with the Application for consent orders if parenting orders are sought and a party has said at item 25 of the Application there has been, or is a risk of child abuse, neglect or family violence.

The second form is the Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case). This form is now only for where cases are on foot: not for consent orders.

A third new form is the Submitting Notice. This form may be filed in Family Court proceedings if a party has been served with an Initiating Application, Response to Initiating Application, Reply or a Notice of Appeal, and does not want to contest the relief sought: Family Law Rules r 8.07.

Property Settlement changes

Previously, if the consent orders contained a provision for a superannuation splitting order, you had to ensure that a superannuation information form had been completed by the Trustee of the relevant super fund or a valuation had been obtained to the superannuation interest. However, as of 1 March 2018, a superannuation kit is no longer required. Proof of value of the interest is required to be filed with the Application.

By Lawyers Contract of Sale of Land – Victoria

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A new form of contract, co-authored by Russell Cocks, providing a vendor’s statement and contract in one document.

The contract is specifically designed for residential conveyancing transactions and seeks to smooth some of the traditional road blocks that arise in these transactions.

The By Lawyers Contract of Sale of Land is located in the Contract folder in the Sale of Real Property Guide.

Seven reasons to use the By Lawyers contract

  1. The Contract and Vendor’s Statement are combined into ONE document, with the Vendor’s Statement, logically, coming FIRST. The Vendor’s Statement is formatted in such a way as to deal with the obligatory fields first and then group the optional fields in way that makes removal of those fields simple if they are not required.
  2. Particulars of Sale in the Contract includes a “sunset date” for off the plan approval. No more searching through mountains of Special Conditions.
  3. Non-derogation warranty. General Conditions can be amended by Special Conditions BUT not such as to reduce the rights created by the General Conditions. No more contracts that say one thing on page 1 and reverse that on page 15. This Contract is fair to both parties; if someone wants to create an unfair contract they cannot hide it within this contract.
  4. General Condition 12 – deposit release. Establishes a clear protocol for release by requiring timely objection to title.
  5. General Condition 14 – loan condition. Extends time for approval to 21 days and allows for automatic extension, subject to vendor’s ability to end the extension by notice.
  6. General Condition 25 – losses. Removes disputes relating to default losses from the settlement process and allows the parties to resolve these issues after settlement.
  7. General Conditions 27 & 28 – default and rescission notices. Divides the process into two steps with specified legal cost in respect of notices.

There are also other improvements, such as simple off the plan and electronic conveyancing conditions, a requirement that a vendor produce a copy lease at settlement and a clause passing ownership of abandoned goods to the purchaser. This Contract continues the quest commenced by the 2008 Contract (remember Requisitions?) to simplify conveyancing by ironing out the speedhumps.

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