ByLawyers News and Updates

Changes to Family Law- FED

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A summary of the upcoming changes to family law parenting applications has been added to the By Lawyers Family Law – Children guide.

The upcoming changes to family law arise under two separate pieces of legislation, each of which commences on 6 May 2024.

Family Law Amendment Act 2023

Significant amendments to the way parenting orders are dealt with under the Family Law Act 1975 (Cth), include:

  • a refined list of factors for the court to consider when determining the best interests of the child, the emphasis now being on safety and the needs of individual children;
  • a new subsection requiring the court to consider the right of an Aboriginal or Torres Strait Islander child to connect with their family, community, culture, country, and language;
  • provisions that allow the court to consider any views expressed by the child to the independent children’s lawyer;
  • the repeal of the presumption of equal shared parental responsibility and the related equal time and substantial and significant time provisions;
  • codification of the rule in Rice v Asplund that requires a court to be satisfied a that significant change in circumstances has occurred before varying parenting orders; and
  • a mechanism for the court to address repetitive filing of applications by one party to oppress another party.

Family Law Amendment (Information Sharing) Act 2023

This legislation:

  • seeks to establish a regime for information about domestic violence, children at risk, and firearms licensing to be shared between the relevant State authorities and the Federal Circuit and Family Court of Australia (FCFCOA);
  • amends the Family Law Act to make such material admissible in children’s matters, subject to exceptions and safeguards, for example legal professional privilege.

The 2nd reading speeches note that the measures in each Act are complementary and that both Acts will work together to create a family law system that meets the needs of its users, centring the voices and best interests of children, and ensuring their safety and wellbeing is the paramount consideration.

Publication updates

By Lawyers guides are always up to date. When these changes to family law commence, the Family Law – Children publication will be updated accordingly. In the interim, the following content has been added to the guide too assist firms in understanding and transitioning to the changes:

  • an Alert has been added at the top of the matter plan and the top of the full commentary;
  • a heading Changes effective 6 May 2024 has been added under the Overview in the commentary and on the matter plan, with a concise summary of the amendments;
  • a Comparative table detailing the changes to the Family Law Act effective 6 May 2024 has been added as an Appendix to the commentary, with a link on the matter plan.

Intervention orders – VIC

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Following a recent Supreme Court decision, a declaration of truth is not sufficient evidence on which a court can make personal safety intervention orders.

Section 38 of the Personal Safety Intervention Orders Act 2010 provides that an application for an interim order must be supported by oral evidence or an affidavit, unless the orders are by consent or the requirement is waived.

Under s 38(1A) the court may waive the requirement that the application be supported by oral evidence or an affidavit if the applicant is a police officer and the application is made by electronic communication:

  • provided the court has considered whether it is practicable to obtain oral evidence or an affidavit before making the interim order; or
  • the application is made before 9 a.m. or after 5 p.m. on a weekday or on a Saturday, Sunday or a public holiday, and it was certified by the police officer in accordance with s 13(2).

As a COVID-19 response in 2022, the Magistrates’ Court introduced a declaration of truth form as part of the online application process for intervention orders.

In Myers v Satheeskumar & Ors (Judicial Review) [2024] VSC 12 the applicant challenged the validity of an interim intervention order on the basis that it was not supported by oral evidence or an affidavit, there being no consent and no waiver. The Supreme Court agreed with the applicant, finding that a declaration of truth is not the same as an affidavit and cannot ground an application for interim orders. In doing so, the the presiding judge noted:

I have concluded that the interim PSIOs are invalid, in spite of the public inconvenience and safety issues entailed by this conclusion. I am conscious that this conclusion could cast doubt on the validity of other interim PSIOs granted in similar circumstances. It may be a matter of urgent public concern if other interim PSIOs are subject to doubt by reason of any systematic defect in the manner they have been granted. It is unclear to me whether the approach of the Magistrates’ Court to this case is widespread. However that may be, any perceived solution must be left to the legislature, not the Court.

It is likely that the Magistrates’ Court will soon amend their form and online application to require an affidavit to be filed. There may also be a legislative response. However, until that happens, an application for an interim order cannot be supported by a declaration of truth, and unless a waiver applies the applicant will need to either give evidence or file an affidavit before the court can make any interim orders.

The commentary in the By Lawyers Intervention Orders (VIC) publication has been updated accordingly, and will be updated again if there are further developments.

Land tax – NSW

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From 1 February there are changes to land tax exemptions in New South Wales. A new minimum ownership requirement applies to applicants seeking the principal place of residence land tax exemption.

A principal place of residence is generally exempt from land tax. Only one property can be claimed as a principal place of residence, for either an individual or a family. If a principal place of residence is used for non-residential purposes, then there will be a reduction of land tax for the proportion used as a residence.

A principal place of residence exemption can only be claimed by natural persons, not corporations or trusts except for a concessional trust: s 3B of the Land Tax Management Act 1956.

Following the amendments, s 15 of Schedule 1A of the Act now imposes a minimum ownership requirement in order for a property owner, or owners, to access the principal place of residence exemption. There is now no entitlement to the exemption unless all of the people who use and occupy the land as a principal place of residence together hold at least a 25% interest in the land.

Those who currently claim the principal place of residence exemption, but collectively have an interest in the land of less than 25%, can continue to claim the exemption as a transitional measure up to 31 December 2025.

The requirement does not apply to participants in an approved shared equity scheme under s 281 of the Duties Act 1997.

The By Lawyers Conveyancing (NSW) publication has been updated accordingly.

Adjustments and land tax in 2024

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By Russell Cocks, Solicitor

Adjustments

As of 1 January 2024, practitioners need to ensure that the form of contract that they are using for the sale of real estate complies with amendments to the Sale of Land Act 1962, being new s 10G and s 10H. These amendments apply to contracts for a purchase price of LESS THAN $10,000,000 indexed: s 10I.

It is the responsibility of practitioners to ensure that contracts that may be signed after 1 January 2024 are compliant. These changes also need to catch up with any contract that was prepared before 1 January 2024 and may be awaiting execution, especially those provided to estate agents in anticipation of a sale, but which did not occur before 1 January 2024.

Section 10G provides that a condition in a contract is of no effect to the extent that the provision purports to require the purchaser to contribute to the vendor’s Land Tax. Such conditions are virtually universal, so this change will affect 99.9% of contracts for the sale of land. The section only applies to contracts that come into force after 1 January 2024.

Including a condition in breach of the Act in a contract AFTER 1 January 2024 exposes the vendor to a substantial financial penalty.

Land Tax is not a factor in the great bulk of conveyancing transactions that relate to the sale of a Principal Place of Residence or, to a lesser extent, exempt farming properties, as these categories of property do not attract Land Tax, so no adjustment is required. However, it will still be an offence to include reference to Land Tax in the adjustment condition, so it is important to ensure that ALL contracts are reviewed to ensure that Land Tax is REMOVED from the outgoings to be adjusted at settlement.

The change will have the greatest effect in relation to the sale of commercial/industrial properties and where a vendor owns multiple properties. While adjustments may be conducted in the “normal” way if the contract was signed before 1 January 2024, no adjustment can be made in respect of Land Tax for any contract that came into existence after 1 January 2024.

An area where this change will be significant, and perhaps not before time, is where a residential land subdivider includes adjustment conditions that pass on what can be substantial and generally unexpected Land Tax liabilities. In extreme examples, subdividers include conditions that pass on the vendor’s Land Tax, often at the subdivider’s high rate, from the date of the contract rather than the date of settlement. This results in “Mum & Dad” purchasers unwittingly becoming responsible for many thousands of dollars of the subdivider’s Land Tax. It may be this extreme example of consumer abuse that has prompted this “big stick” response of prohibiting Land Tax adjustment at all.

In a similar vein, s 10H prohibits contractual conditions (including in options) that seek to adjust the vendor’s existing Windfall Gains Tax (WGT) liability. WGT commenced on 1 July 2023 (see the Legal Practitioners Liability Committee Windfall gains tax hub for details) so it is not likely that this amendment will affect any or many contracts. WGT MIGHT potentially apply to any land (except GAIC land) that is rezoned with a consequential gain in value. The amendment only prohibits adjusting WGT in respect of an EXISTING WGT liability (assessment). It does not prohibit an adjustment condition in a contract that allows adjustment of a future WGT assessment which arises during the course of the contract. The parties may agree that this will be borne by the vendor, who will receive the assessment, maybe the responsibility of the purchaser at settlement or may be apportioned between the parties according to some agreed formula.

A vendor with an EXISTING WGT liability must take that liability into account when calculating the price for which the vendor is prepared to sell the land. That EXISTING WGT liability CANNOT be passed on, in whole or in part, to the purchaser and will become payable by the vendor in full at settlement.

Land tax

In addition to changing how Land Tax can be adjusted on sale, amendments to the Land Tax Act 2005 change existing Land Tax obligations and create new obligations.

Section 34A presently imposes a vacant residential land tax on taxable land capable of being used for residential purposes within certain municipal districts of Melbourne. That tax is to be extended from 1 January 2025 to apply to all land in Victoria which is taxable vacant residential land. This tax applies to homes, not vacant land, which have been vacant for more than six months in the preceding calendar year, commencing 2024, and attracts land tax at the rate of:

  • 1% Capital Improved Value (CIV) in first year;
  • 2% CIV in second year; and
  • 3% CIV in third year.

Section 34B(2)(b) introduces a new tax from 1 January 2026 on vacant land suitable for residential use within metropolitan Melbourne if the land has been vacant for five years in one ownership. This tax applies to unimproved land.

Civil rules – SA

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The Uniform Civil Rules 2020 have been amended with effect from 1 January 2024. These rules apply to all South Australian courts that deal with civil matters.

Amendments under the Uniform Civil (No 10) Amending Rules 2023 include the following:

Remote appearances

A  substituted r 15.4 allows the court to direct or permit a party or a lawyer to appear by audio or audio-visual link, if the court considers it is justified in the circumstances.

This requires:

  • an application in the prescribed form; or
  • an oral application at a prior hearing; or
  • ticking the remote appearance box on any form filed via the court’s electronic filing system; or
  • sending an email to the chambers of the judicial officer who will hear the matter.

The request must specify why the remote appearance is necessary.

If a request is granted the requesting party must pay any costs involved, and if they are uncontactable after 15 minutes of the appointed time it will be treated as a non-appearance.

An application for a witness to appear by audio link or by audio visual link must be made by an interlocutory application in the prescribed form supported by an affidavit in the prescribed form, or an oral application at a prior hearing.

Setting aside judgement by consent

A new rule 142.13 provides that a default monetary judgment can be set aside and the proceedings discontinued by consent by the parties filing the new form 126A Application and Consent to Set Aside Default Judgment and Discontinuance, provided there is no cross-claim, third party claim, or interested party.

Publication updates

The commentaries and matter plans in the By Lawyers Magistrates Court Civil guides- Acting for the Applicant and Acting for the Respondent have been updated in line with the amended civil rules.

Criminal Rules – SA

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The Joint Criminal Rules 2022 have been amended with effect from 1 January 2024. These rules apply to all SA courts that deal with criminal matters.

Amendments under the Joint Criminal (No 3) Amending Rules 2023 include the following.

Continuity of representation after committal

A new rule 24.2(4A) provides that a law firm, and the responsible solicitor at that firm, that represented the defendant in committal proceedings which resulted in the defendant being committed to a higher court, is deemed to be representing them in the higher court. If a lawyer ceases to act after a committal proceeding, an application to the higher court will be required.

Remote appearances

A  substituted r 38.5 allows the court to direct or permit a party or a lawyer to appear by audio or audio-visual link, if the court considers it is justified in the circumstances.

This requires:

  • an application in the prescribed form; or
  • an oral application at a prior hearing; or
  • ticking the remote appearance box on any form filed via the court’s electronic filing system; or
  • sending an email to the chambers of the judicial officer who will hear the matter.

The request must specify why the remote appearance is necessary.

If a request is granted the requesting party must pay any costs involved, and if they are uncontactable after 15 minutes of the appointed time it will be treated as a non-appearance.

An application for a witness to appear by audio link or by audio visual link must be made by an interlocutory application in the prescribed form supported by an affidavit in the prescribed form, or an oral application at a prior hearing.

Written submissions

A new rule 38.9(3) provides that any written submissions must include at the end of the document the name of counsel who settled them, or, if there is no counsel, the name of the solicitor responsible.

Sentencing material

A new Division 8—Sentencing material in Part 2 of Chapter 7 provides that any material filed for the purposes of sentencing, including reports, victim or community impact statements, or references, must be filed with a sentencing material form in the prescribed form, being Form 136 Sentencing Material.

Publication updates

The By Lawyers Criminal Magistrates Court guide has been updated in line with the amended criminal rules.

Closing loopholes – FED

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A raft of amendments closing loopholes in the Fair Work Act 2009 commenced on 15 December 2023.

Changes introduced by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 include:

Redundancy

Entitlement to a redundancy payment is extended to employees of a small business, being one with fewer than 15 employees, in certain circumstances. Generally, such businesses are exempt from the requirement to pay redundancy. However, under the amended provisions employees may be entitled if the employer is bankrupt or in liquidation and the  only reason the exemption applies is that the trustee in bankruptcy or liquidator has reduced the number of employees to less than 15.

Labour Hire

New provisions in Part 2-7A of the Fair Work Act restrict labour hire arrangements and allow employees or unions to apply to the Fair Work Commission for regulated labour hire arrangement orders prescribing the rates of pay that employees under a labour hire arrangement must receive. However, any such orders made by the Commission have no effect until at least 1 November 2024. The new provisions also introduce strict anti-avoidance provisions and civil penalties. There are some exceptions to the Commission’s ability to make orders, including for small business employers.

Unlawful dismissal

Prohibited grounds for dismissal are extended to include the fact that an employee is subject to domestic or family violence.

Right of entry

The amending Act removes the requirement for state or territory work health and safety representatives to hold an entry permit before entering a workplace. However that innovation is a subject to review after 9 months.

Further amendments

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 includes additional provisions criminalising the intentional underpayment of wages by employers. Those provisions do not commence until 1 January 2025.

Publication updates

The By Lawyers Employment Law commentary has been updated accordingly. The amending Act’s further provisions will be the subject of additional publication updates in due course, as required.

State taxation – VIC

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Amendments to various state taxation provisions affecting conveyancing transactions came into effect on 1 January 2024.

Summary of amendments

Amendments introduced by the State Taxation Acts Amendment Act 2023 and the State Taxation Acts and Other Acts Amendment Act 2023 include:

  • A prohibition on apportioning land tax between a vendor and a purchaser at settlement under a contract of sale of land when the sale price is under the prescribed threshold, currently $10M.
  • A prohibition on apportioning an existing windfall gains tax liability between a vendor and a purchaser under a contract of sale of land or an option agreement.
  • The introduction of a temporary land tax surcharge which will expire after 10 years in addition to existing land tax rates – part of the government’s debt levy measures to recover COVID related spending.
  • An increase of the absentee owner surcharge rate from 2% to 4%, and a reduction of the tax‑free threshold from $300,000 to $50,000 for non-trust absentee owners, with the minimum threshold for trusts unchanged.
  • An extension of the land tax exemption for owners affected by builder insolvencies for an additional two years for a principal residence undergoing construction or renovation.

Land tax and windfall gains tax

Land tax

A new s 10G of the Sale of Land Act 1962 makes it an offence for a vendor to enter into a contract of sale of land that purports to apportion land tax between a vendor and a purchaser when the sale price is under the prescribed threshold. The threshold, set out in s 10I of the Act, is $10,000,000 for 2024, and will be adjusted annually for CPI. Any such clause will be taken to have no effect.

Windfall gains tax

A new s 10H of the Sale of Land Act 1962 makes it an offence for a vendor to enter into a contract of sale of land or an option agreement that apportions an existing windfall gains tax liability to a purchaser. Any such clause will be taken to have no effect.

Adjustment of the purchase price

The allocation of land tax and windfall gains tax liabilities may be reflected in the negotiated purchase price, but cannot be an adjustment on settlement.

Pre-1 January 2024 contracts and options

Sections 10G and 10H do not apply to a contract of sale entered into before 1 January 2024. Further, s 10H does not apply to an option to enter into a contract of sale granted before 1 January 2024, or a contract of sale entered into on or after 1 January 2024 under the exercise of an option that was granted before 1 January 2024.

By Lawyers updates

The commentaries in the Sale of Real Property and Purchase of Real Property guides in the Conveyancing (VIC) publication have been updated to account for these state taxation amendments. The land tax amendments are reflected in clause 15 of the By Lawyers Contract of Sale of Land, and a note concerning the land tax and windfall gains tax offences has been added to the Retainer instructions – Sale of real property.

Stamp duty – SA

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Amendments to stamp duty and land tax concessions were introduced in the most recent state budget and apply in the current financial year.

Summary of changes

  • Introduction of stamp duty relief for eligible first home buyers who enter into a contract to purchase a new home or vacant land to build a new home on or after 15 June 2023.
  • Increase in the property value cap for the first home owner grant in relation to eligible transactions entered into on or after 15 June 2023 from $575,000 to $650,000.
  • Introduction of a land tax reduction for eligible build-to-rent projects where construction commences on or after 1 July 2023.

Stamp duty relief for first home buyers

Stamp duty relief is now available to eligible first home buyers who entered into a contract to purchase a new home or vacant land to build a new home on or after 15 June 2023.

This relief is not available on the purchase of an established home, including a planned knock-down and rebuild.

New home

Full stamp duty relief applies on the purchase of an eligible new home valued up to $650,000, with reduced relief for properties valued up to $700,000.

Vacant land on which a new home will be built

For the purchase of vacant land on which a new home will be built, full stamp duty relief applies for land valued at up to $400,000, with reduced relief for land valued up to $450,000.

Eligibility requirements

The eligibility criteria are based the first home owner grant. This is set out in detail in the commentary in the By Lawyers Purchase of Real Property guide.

First Home Owner Grant threshold increase

The property value cap was increased for the first home owner grant in relation to eligible transactions entered into on or after 15 June 2023 from $575,000 to $650,000.

Land tax reduction for build-to-rent projects

To promote new housing opportunities, a land tax reduction is available for eligible build-to-rent projects when construction commences on or after 1 July 2023. This is applied as a 50% reduction in the land value of relevant parcels of land being used for an eligible build-to-rent project.

The land tax reduction is available from the 2023-24 financial year up to, and including, the 2039-40 financial year.

By Lawyers publication updates

The By Lawyers Conveyancing (SA) publication, which includes the Sale of Real Property guide and the Purchase of Real Property guide, has been updated to reflect these changes, including the commentaries, to-do lists, retainer instructions, and initial letters.

First remand hearing – VIC

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New procedures apply to the first remand hearing for criminal matters in the Magistrates’ Court from 8 January, 2024.

A first remand hearing is when an accused in custody is initially brought before the court. Under Practice Direction no. 1 of 2024, the accused is required to attend in person unless the court has directed under s 42MAA(1) of the Evidence (Miscellaneous Provisions) Act 1958 that they can appear online.

An application under s 42MAA(1) for the accused to appear online can be made by a police officer, the prosecutor, or the accused’s lawyer.

The application must include:

  • a statement as to how an online appearance is consistent with the interests of justice;
  • a statement either that the accused consents to appearing online or that exceptional circumstances apply, in which case they must be set out;
  • whether the accused has received legal advice;
  • whether there are facilities to enable the accused to communicate with their lawyer before and during the hearing;
  • whether the accused intends to apply for bail;
  • whether the accused requires an interpreter; and
  • whether the accused identifies as Aboriginal or Torres Strait Islander

Lawyers must also appear in person at the first remand hearing. Exceptions to this requirement apply if the court has directed that the client can appear online, or the client is Aboriginal and the lawyer’s appearance would assist the court considering the issues in s 3A of the Bail Act1977, but the lawyer cannot appear in person, or the court has directed otherwise. If an exception applies the lawyer can attend online.

If appearing online, it is the practitioner’s responsibility to ensure they have audio-visual capability from an appropriate, private location and their online appearance must not cause delay or interrupt the court.

The By Lawyers Criminal Magistrates Court guide has been updated accordingly, including with the new form of application.

 

 

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