ByLawyers News and Updates

Succession Act – SA

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The Succession Act 2023 (SA) extensively reframes South Australian succession law.

The Act commences on 1 January 2025.

It consolidates and amends existing laws relating to:

  • wills;
  • probate and administration;
  • administration of deceased estates;
  • intestacy; and
  • family provision claims.

The Succession Act contains all legislative provisions, including new provisions, relating to those areas. The new Act repeals three existing Acts:

Revised court rules and practice directions for probate, administration, contested wills, and family provision matters will follow the commencement of the new Act.

Key provisions of the new legislation include:

  • the right of certain classes of person to inspect a will of a deceased person;
  • the power of the Supreme Court to pass over applicants for a grant of probate or administration and appoint another person it considers appropriate;
  • the removal of the need for a grant to administer smaller estates;
  • additional court powers to hold executors and administrators to account;
  • codification of the application of assets to payment of debts and liabilities in solvent estates;
  • the increase to the preferential legacy for a surviving spouse of an intestate;
  • the addition of the children of first cousins of an intestate to the distribution on intestacy;
  • no entitlement of a spouse or domestic partner of an intestate to any part of an intestate’s estate if they are a party to:
    • a binding financial agreement; or
    • orders for distribution of property under the Family Law Act 1975 (Cth);
  • primary consideration of the deceased’s wishes by the court when determining whether to make a family provision order;
  • narrowing eligibility for family provision claims to:
    • exclude former partners and spouses when financial matters have already been settled;
    • require adult stepchildren to demonstrate they:
      • are disabled and vulnerable;
      • were genuinely dependent on the deceased;
      • cared for or maintained the deceased; or
      • contributed to the estate, or their parent substantially contributed to the estate;
    • require grandchildren to satisfy the court that:
      • their parents died before the deceased; or
      • they were wholly or partly maintained by the deceased.

The By Lawyers Wills (SA), Probate (SA), Letters of Administration (SA), and Family Provision Claims (SA) publications have been updated accordingly. Further updates will follow when the new court rules are available.

Family violence visas – FED

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New eligibility criteria for visas under family violence provisions of the Migration Act commenced on 17 December 2024.

The provisions are intended to prevent secondary visa applicants from feeling compelled to remain in a violent relationship with the primary applicant for fear of an adverse visa outcome.

Violent behaviour can include physical abuse, sexual abuse, verbal or emotional abuse, social abuse, and financial abuse.

Eligibility for family violence visas

A secondary applicant must satisfy the primary criteria of being a member of a family unit at the time of being granted a visa.

A member of a family unit is a spouse or de facto partner, or a child or step-child of the primary visa applicant. A person over the age of 18 is deemed to be a child if they have not turned 23, and are dependent on the family head or the spouse or de facto partner of the family head. If they are over 23, they are still a member of the family unit if they are dependent due to a disability. A dependent grandchild or step-grandchild of the primary applicant is also a member of a family unit. 

Without the family violence provisions, a secondary visa applicant whose relationship with the primary visa applicant has broken down would no longer be a member of a family unit and would not satisfy the primary criteria to be granted a visa.

However, a secondary visa applicant who ceases to be a member of a family unit as a result of family violence perpetrated against them by the primary visa applicant can still apply for a visa under the family violence provisions. 

See the Types of domestic and family violence page of the Department of Home Affairs for further details. 

Evidence

A secondary visa applicant who claims family violence must provide evidence to the Department of Home Affairs about the primary applicant’s violent conduct towards them, and their prior relationship status. Evidence of family violence can include medical reports, police statements, court orders, convictions and a statutory declaration for a family violence claim.  See the Family violence provisions – Secondary applicants page of the Department of Home Affairs for further information. 

The family violence provisions have been expanded to include several new visa subclasses previously not covered:

  • Parent (Subclass 103);
  • Remaining Relative (Subclass 115);
  • Carer (Subclass 116);
  • Business Talent (Subclass 132);
  • Contributory Parent (Subclass 143);
  • Pacific Engagement (Subclass 192);
  • Aged Parent (Subclass 804);
  • Remaining Relative (Subclass 835);
  • Carer (Subclass 836);
  • Contributory Aged Parent (Subclass 864); and
  • Business Innovation and Investment (Subclass 888).

Publication updates

The By Lawyers Immigration publication has been updated to include the new visa types. 

Bail and sentencing – WA

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Bail and sentencing options have changed with commencement of the final tranche of amendments under the Family Violence Legislation Reform Act 2024.

From 18 December 2024 Bail authorities can impose electronic monitoring as part of bail and sentencing conditions for certain family violence offenders. In some cases,  an electronic monitoring condition must be applied.

Bail

Schedule 1 of the Bail Act 1982 creates a rebuttable presumption against bail being granted for certain offences. For offences in these categories, the presumption can be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied that bail may properly be granted.

The amendments create new circumstances where the presumption applies, namely to family violence offences as defined in clause 3F(1A) and offenders who have been declared a serial family violence offender as defined in s 3 of the Act. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition.

Clause 3G creates a rebuttable presumption against bail for a person charged with a family violence offence (category A) as defined in the clause who is bound by a family violence restraining order that protects a victim of the current offence. In these cases, bail can only be granted by a judicial officer and must include an electronic monitoring condition. See Schedule 1 Part D and Part E.

Sentencing

When the court is sentencing:

  • for a family violence offence and the offender has been declared a serial family violence offender, if making a CSI the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances;
  • an offender who has been declared a serial family violence offender, if making a PSO the court must consider and may impose an electronic monitoring requirement for the term of the PSO, and must do so if the offence is a family violence offence;
  • an offender for a family violence offence or who has been declared a serial family violence offender, if when making a CBO or an ISO the court must impose an electronic monitoring requirement unless satisfied that there are exceptional circumstances.

Publication updates

The By Lawyers Magistrates Court – Criminal (WA) guide has been updated accordingly. See Bail and Sentencing.

For information on legislative amendments and publication updates arising from the previously commenced parts of the amending Act, see the By Lawyers Restraining Order (WA) guide, and our previous News & Updates post

Costs Court – VIC

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Changes to the way costs are calculated in the Costs Court have effect from 1 January 2025 following amendments to Order 63 of the Supreme Court Rules, and the Appendix that deals with costs.

The new scale of costs is based principally on time costing, whereas the previous scale was based principally on items of legal work or particular services.

If a client has been charged on the basis of hourly rates for work done, Section 1 of the scale applies and provides that the costs payable to the entitled party are to be allowed on the basis of reasonable hourly rates, up to the maximum hourly rate set out in the scale. There are three tiers of maximum rates according to a practitioner’s years of post-admission experience. There are no minimum rates.

The scale also sets out maximum hourly rates for work done by employees of a law practice who are not legal practitioners. The maximum rates for those employees depend on whether their work required legal skill or knowledge.

The maximum hourly rates are not an endorsement by the Court that those rates are reasonable in every case, or even in most cases, nor an invitation for practitioners to charge clients the maximum hourly rate and then claim that rate as between the parties.

All claims in the Costs Court must be reasonable. In setting rates to be charged to clients, and in making costs claims, practitioners must bear in mind their overarching obligation to ensure that costs are reasonable and proportionate: s 24 of the Civil Procedure Act 2010.

In assessing costs, the Costs Court will determine whether the amount claimed relative to the work performed is reasonable on an item-by-item basis. This means that the same hourly rate will not necessarily be allowed for all time spent or work done by the same individual.  The hourly rate allowed for a lawyer drafting a letter requiring legal skill may be higher than the rate for the same lawyer collating court books.

An application can be made for the Court to allow an increase to the maximum rates if there are special grounds arising out of the nature and importance, difficulty, or urgency of the case. If the matter runs to trial, then the trial judge will usually be best placed to determine such an application.

The time-based model does not mean that a law practice must charge their clients on an hourly basis. The scale provides for the assessment of costs where the entitled party has not been charged on the basis of hourly rates. In such a case, the Costs Court will allow a reasonable amount for the work.

The scale sets out what the court can consider in determining reasonableness for both time-based costing and alternative costing. These include the actual hourly rates charged to the client, the complexity of the matter, the time required, and the difficulty or novelty of the questions involved.

The By Lawyers Supreme Court – Acting for the Plaintiff (VIC) and Supreme Court – Acting for the Defendant publications have been updated accordingly.

Foreign resident capital gains withholding – FED

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The foreign resident capital gains withholding tax regime is changing.

With effect from 1 January 2025:

  • the withholding rate increases from 12.5% to 15%; and
  • the $750,000 threshold is removed.

The foreign resident capital gains withholding regime applies to sales of taxable Australian property, including vacant land, residential property, and commercial property.

Until 1 January 2025, the regime applied only to properties valued at $750,000 or more. From 1 January it applies to all properties.

Buyers must withhold a percentage of the purchase price and pay it to the Australian Taxation Office (ATO) instead of to the seller unless the seller is an Australian resident and provides evidence of that fact by way of a clearance certificate from the ATO. Sellers who are foreign residents can apply to the ATO for a variation notice and potentially reduce the amount required to be withheld.

Without a clearance certificate or a variation notice, all buyers must withhold the required percentage of the purchase price, even if the seller is an Australian resident.

For sales of taxable real property before 1 January 2025, the foreign resident capital gains withholding amount was 12.5%. From 1 January 2025 it is 15%.

The effect of these amendments is that ALL sellers of real property in all states and territories, whether Australian residents or foreign residents, need to apply for a clearance certificate from the ATO and provide it to the buyer before the completion of the sale. If they do not, then the buyer must pay 15% of the purchase price to the Australian Taxation Office on settlement. For those jurisdictions with electronic conveyancing, this may be able to be done via the settlement platform.

All By Lawyers publications that cover foreign resident capital gains withholding have been updated to reflect this change. This includes the Conveyancing and Property and Estates guides in each state and territory, Retirement Villages (NSW), and 1001 Conveyancing Answers (VIC), (NSW), and (QLD).

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.

Probate fees – VIC

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Probate fees for applications in the Supreme Court of Victoria have increased with effect from 18 November 2024.

Changes under the Supreme Court (Fees) Amendment Regulations 2024 have the effect of dramatically increasing, in many cases, the fees payable to file an application for probate or letters of administration at the Probate Office.

The changes to include:

  • new estate value brackets and corresponding fees;
  • changes to the advertising and small estate fees;
  • a new fee for re-advertising an application; and
  • a new fee for filing an amended originating motion.

The new estate value brackets and corresponding application fees are:

Gross value of estate for commencement of an application for a grant of representation Filing fee
$0 – $249,999.99 NIL
$250,000 – $499,999.99 $514.40
$500,000 – $999,999.99 $1,028.80
$1,000,000 – $1,999,999.99 $2,400.50
$2,000,000 – $2,999,999.99 $4,801.00
$3,000,000 – $4,999,999.99 $7,185.20
$5,000,000 – $6,999,999.99 $12,002.60
$7,000,000 and over $16,803.60

The full list of fees is available on the Supreme Court’s Probate Office fees webpage.

The By Lawyers Estates (VIC) publication has been updated, including the Retainer Instructions and Costs Agreements precedents, on the Probate and Letters of Administration matter plans.

These amendments come hot on the heels of a change to the way applications for probate, letters of administration, and reseal are advertised. See our recent News and Updates post concerning probate advertising for more information.

Family violence – WA

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Changes under Part 7 of the Family Violence Legislation Reform Act 2024 (WA) (the Reform Act) commenced on 14 November 2024.

These provisions amend critical definitions in the Restraining Orders Act 1997 (the Act). The Act provides for family violence restraining orders.

Sections 3 to 6A of the Act define all relevant terms used in the Act, including what constitutes family violence. The amendments introduce the concept that a pattern of behaviour can constitute family violence, as well as a single act of violence or a series of such acts.

Section 5A(1) of the Act, as amended by the Reform Act, now defines family violence as:

(a) violence, or a threat of violence, by a person towards a family member of the person; or

(b) any other behaviour or pattern of behaviour by the person that coerces or controls the family member or causes the member to be fearful.

The Act now makes it clear that relevant behaviour, or a pattern of behaviour, can occur over a period of time, may be more than one act or a series of acts that cumulatively coerce or control a family member or causes them to be fearful, and is to be considered in the context of the parties relationship as a whole: s 5A(1A).

Section 5A(2) of the Act provides a non-exhaustive list of examples of behaviour, or patterns of behaviour, that may constitute family violence.

The By Lawyers Restraining Orders (WA) publication has been updated accordingly.

Other amendments under the Reform Act that affect bail and the way the criminal justice system deals with mentally impaired accused are yet to commence. The By Lawyers Magistrates Court Criminal (WA) guide will be updated when those further changes are proclaimed to commence.

Administrative Review Tribunal – FED

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The Administrative Review Tribunal (ART) commenced on 14 October 2024. It replaced the Administrative Appeals Tribunal (AAT) and the Immigration Assessment Authority (IAA) which are both abolished.

The new tribunal was set up with the stated objective of providing an independent mechanism for review that:

  • is fair and just;
  • ensures that applications to the tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the tribunal permits;
  • is accessible and responsive to the diverse needs of parties to proceedings;
  • improves the transparency and quality of government decision‑making; and
  • promotes public trust and confidence in the tribunal.

The ART consists of a President and a Deputy President, both of whom must be judges, as well as senior members and general members.

The tribunal’s governing legislation is the Administrative Review Tribunal Act 2024 (the Act) and the Administrative Review Tribunal Regulations 2024 (the Regulations).

Provisions of other legislation can apply in addition to or instead of the Act. The Migration Act 1958 contains several such provisions.

The Minister has rule-making power under the Act, and the President of the ART can make practice directions.

Publication updates – Immigration

The Administrative Review Tribunal deals with matters including reviewable migration decisions and reviewable protection decisions. The By Lawyers Immigration guide has been updated accordingly.

Changes concerning how reviews of visa decisions are dealt with include:

  • The divisions of the previous tribunal have been replaced with eight jurisdictional areas, one of which is migration. Lists within each jurisdictional area led by a Deputy President or Senior Member will focus expertise on particular types of applications.
  • The procedures of the tribunal are harmonised and contained in the Regulations, the Rules and Practice Directions.
  • Fast-track reviews under the provisions of Part 7AA of the Migration Act 1958 in relation to protection visa decisions, previously dealt with by the IAA, are no longer available and the provisions have been repealed.
  • Reviews under Parts 5 and 7 of the Migration Act 1958 are now heard by the Administrative Review Tribunal.
  • Appeals and reference of questions of law can be made from the ART to the Federal Court under Part 7 of the Act.
  • A guidance and appeals panel has been established consisting of senior tribunal members to review tribunal decisions if there is an issue of significance to administrative decision-making, or an error of fact or law materially affecting the tribunal’s decision.
  • The ART is subject to monitoring by the newly established Administrative Review Council with regard to the overall administration of justice, not individual decisions.

Commencement and transitional provisions

The new law applies to all new and existing cases from 14 October 2024. Proceedings commenced in the AAT of IAA under the old statutory regime will automatically be transferred to the ART and dealt with under the new law.

Proceedings for review of a reviewable protection decision previously fast-tracked by the IAA will be continued and finalised by the ART.

New forms will be created, but the old forms can continue to be used for review applications after 14 October 2024.

AML/CTF – All states

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A Bill currently before Federal parliament expands the existing AML/CTF regime under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (the Act) to real estate professionals, dealers in precious metals and precious stones, and professional service providers, including lawyers, conveyancers, accountants, and trust and company service providers. These are all known as reporting entities.

The Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024 (Cth) will have a substantial impact on law firms and some preparation will be required before its commencement.

Commencement

The Bill’s main provisions commence in March 2026.

Customer due diligence

Requirements for a reporting entity to identify their customer through initial Customer Due Diligence (CDD) include:

  • if the customer is an individual, taking reasonable steps to establish they are who they claim to be, including if they are a politically exposed person;
  • identifying the customer’s ML/TF risk;
  • collecting information about the customer appropriate to ML/TF risk; and
  • verifying the customer information using independent and reliable data that is appropriate to ML/TF risk.

Ongoing CDD requirements require reporting entities to monitor their customers to appropriately identify, assess, manage, and mitigate the ML/TF risks they may reasonably face in providing services. This includes reviewing and updating customer information and monitoring for unusual transactions and behaviours that may give rise to a suspicious matter reporting (SMR) obligation.

Reporting entities may apply simplified CDD, and must apply enhanced CDD, as part of initial and ongoing CDD in certain prescribed circumstances.

Simplified CDD gives reporting entities more discretion, provided the customer’s ML/TF risk is low and other requirements are met, to apply simplified initial and ongoing CDD.

Reporting entities must apply enhanced CDD appropriate to customer risk in certain specified circumstances, or if the customer is high ML/TF risk. In these cases, reporting entities are required to collect and/or verify additional information relevant to mitigating the identified higher risk, and must be reasonably satisfied that they know and understand the identity of their customer.

In enhanced CDD scenarios, ongoing CDD must also be adjusted to ensure it is appropriate to the ML/TF risk of the customer and meets specific requirements to be set out in the AML/CTF Rules.

Policies

Reporting entities must have internal policies for AML/CTF that meet the requirements of the Rules that need to cover:

  • how the reporting entity will inform its governing body of the money laundering, terrorism financing, and proliferation financing risks faced by the reporting entity in its provision of designated services;
  • designating an AML/CTF compliance officer;
  • designating a senior manager responsible for approving any changes to the ML/TF risk assessment or AML/CTF policies;
  • how the reporting entity will undertake due diligence on staff engaged by the reporting entity whose role in the reporting entity may allow them to facilitate serious financial crimes or whose role is relevant to AML/CTF compliance;
  • how a reporting entity will provide risk awareness and management training to staff engaged by the reporting entity;
  • how, and when, to conduct an independent review of its AML/CTF program; and
  • any other matters provided for in the AML/CTF Rules.

Privilege

Section 242 of the Act already provides that it does not affect the law relating to legal professional privilege. The Bill provides stronger protections for the disclosure of information or documents that are subject to legal professional privilege to reflect the fact that lawyers are to be included in the regime.

Offence

The Bill creates a new offence intended to prevent the reporting entity disclosing information to their clients, such as the fact they have made a suspicious matter report, if it could reasonably prejudice an investigation.

Act repealed

The Bill also repeals the Financial Transaction Reports Act 1988 (FTR Act).

Guidance

The Law Council of Australia has issued Guidance for the profession on these changes.

Publication updates

By Lawyers publications will be amended as required to account for these changes. Specific amendments are likely to include First steps in all commentaries, the Conveyancing and Property guides in each jurisdiction, and the Practice Management guide.

In the interim, this overview of the Bill’s impact is being added to the Looking to the Future summary of forthcoming significant amendments in the Reference Materials folder of all By Lawyers publications.

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