ByLawyers News and Updates

Domestic Violence Evidence In Chief – NSW

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A recorded video or audio statement of a domestic violence complainant, known as Domestic Violence Evidence in Chief, or DVEC, is admissible as evidence in chief in criminal proceedings for domestic violence offences and in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007. This is pursuant to the provisions of Chapter 6, Part 4B of the Criminal Procedure Act 1986.

In the recent Supreme Court case of Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363  the court determined that a DVEC may be admitted to evidence even where the complainant is not present at the hearing of the matter – although whether or not it actually will be admitted depends on the provisions of the Evidence Act, as for any other piece of evidence.

The  considerations under the Evidence Act of the complainant’s reliability and the prejudice to the defendant of not being able to cross-examine the complainant still have to be overcome. A defendant’s solicitor should still be prepared to argue strongly against the DVEC being admitted in those circumstances.

The commentaries in the By Lawyers Criminal and Apprehended Violence Orders publications have been amended accordingly.

Complex transactions – Conveyancing – VIC

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Land Use Victoria has mandated that complex transactions for land transfers, currently managed via paper settlement, must be lodged and managed online from 1 August 2019. To meet this requirement, enhancements are being made to Duties Online. These enhancements are scheduled to take effect from 17 June 2019.

This new mandatory requirement applies to solicitors and licensed conveyancers acting for a party or for themselves, as well as PEXA subscribers. Examples include a case comprising withdrawal of a caveat, discharge of a mortgage and transfer and mortgage.

This move to require complex transactions to be managed exclusively via electronic conveyancing means:

  • The Digital Duties Form is mandatory for all transactions.
  • Duties Online (DOL) transaction types listed on the SRO website must be processed electronically using an electronic lodgement network operator.

As a result of this requirement, almost 100 per cent of transactions will now be managed online.

For further information, see the SRO Duties Online page.

See the By Lawyers Conveyancing & Property (VIC) publications for further information about electronic conveyancing and duties requirements.

Electronic Duties – Conveyancing NSW

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Electronic Duties Return (EDR) is a service that allows an approved person to electronically assess and endorse a range of duties transactions in NSW.

Revenue NSW has released a new Electronic Duties Return, effective from 15 April 2019. This release has introduced four new transaction types:

A new digital service called eDuties to replace paper lodgements with Revenue NSW is now available in a beta version.

The OSR Ref ID has changed its name to the Duties Assessment Number (DAN).

For further information, see the NSW Revenue EDR Update newsletter.

The By Lawyers conveyancing publications deal with online duties.

Retaining children overseas – Family Law – FED

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Retaining children overseas is now an offence under the Family Law Act 1975 (Cth).

Existing offences

Subdivision E of Division 6 of Part VII of the Act provides for the ‘Obligations under parenting orders relating to taking or sending children from Australia’. Sections 65Y and 65Z already provide that it is an offence to take or send a child overseas if there is a parenting order in force, or sought in a live application, unless there is written and authenticated consent of each person in whose favour the order was made or sought, or it was done in accordance with a court order. The penalty for contravention is imprisonment for three years.

As part of the Civil Law and Justice Legislation Amendment Act 2018 subdivision E has been amended, with new sections added that deal with retention of children overseas. These amendments have effect from 26 April 2019. Sections 65Y and 65Z have been renamed and re-organised in the Act, but essentially remain the same. The only addition is an exception described below.

New offences

Under the amendments, any person retaining children overseas now commits an offence pursuant to the new sections 65YA and 65ZAA, unless they are doing so in accordance with authenticated consent in writing, or a court order. This applies whether or not the person originally took or sent the child outside Australia. The penalty for contravention is imprisonment for three years.

Statutory exception

There is one legislative exception to the offences created under subsections 65Y(1), 65Z(1), 65YA(1) and 65ZAA(1). The subsections do not apply if the person who takes, sends, or retains the child outside Australia believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as the person perceives them. This applies regardless of whether or not the person who takes, sends, or retains the child is or was the party to the proceedings.

Commentary updated

The Children commentary in the By Lawyers Family Law guide has been updated accordingly.

 

Judicial registrars in the Magistrates’ Court – VIC

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Some recent legislative amendments have expanded the categories of criminal offences which can be dealt with by judicial registrars in the Magistrates’ Court of Victoria.

The offence of Improper Use of a Motor Vehicle has now been added to the list of offences which can be dealt with by a judicial registrar rather than a magistrate.

All traffic offences commence in the Magistrates Court and most traffic offences remain there, as only a relatively few traffic offences such as culpable driving and dangerous driving causing death are serious enough to be dealt with on indictment.

Some criminal offences, including some traffic offences can be dealt with in the Magistrates’ Court by a judicial registrar – see Rule 6(ea) of the Magistrates’ Court (Judicial Registrars) Rules 2015 for a full list of these. This now includes Improper Use of a Motor Vehicle. One of the ways in which that offence can be committed is to drive a motor vehicle in a manner which causes the motor vehicle to undergo loss of traction by one or more of the motor vehicle’s wheels. The maximum penalty for the offence is 5 penalty units.

The Full Commentary in the By Lawyers Victorian Magistrates’ Court – Criminal publication has been updated accordingly.

The commentary also includes, in the Overview, an explanation of the nature and value of ‘penalty units’.

Family Violence Protection amendments – VIC

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Further provisions of the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 commenced on 29 March 2019.

Relevant amendments include:

  • Examples have been added to the definition of Family Violence in s 5 (10) (b) of the Family Violence Protection Act 2008;
  • Interim or final protection orders for children at the court’s own initiative have been added to s 53AB (2) and s 77B (3) of the Family Violence Protection Act 2008 where an interim or final order has not been made for  affected family member of the child;
  • A new Specialist Family Violence Court Division has been established under the Magistrates’ Court Act 1989 which has jurisdiction to deal with proceedings in respect to the Family Violence Protection Act 2008 and other relevant acts.

Corresponding updates to the By Lawyers Intervention Orders guide, found in the Magistrates’ Court Criminal and Magistrates’ Court Civil publications for Victoria, have occurred or are  underway.

Remaining provisions of the amending act commence on 1 September 2020 if not proclaimed before.

Amendments to Family Law Act – FED

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Amendments to the Family Law Act commenced 10 March 2019 relating to family violence and cross-examination of parties.

They will apply to cross-examinations occurring on 10 September 2019 and thereafter, regardless of when proceedings were instituted.

The following sections have been added to the Family Law Act 1975:

  • 102NA Mandatory protections for parties in certain cases; and
  • 102NB Court‑ordered protections in other cases.

Section 102NA provides greater protection for parties in circumstances of family violence where there are self-represented parties.

If a party intends to cross-examine the other party, in certain circumstances, they may not do so personally and cross-examination may only be conducted by a legal representative. Those circumstances are:

  1. there is an allegation of family violence between the examining party and the witness party; and
  2. any of the following are satisfied:
    • either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
    • a family violence order, other than an interim order, applies to both parties;
    • an injunction under s 68B or s 114 for the personal protection of either party is directed against the other party;
    • the court makes an order that the requirements of legal representation for cross-examination are to apply.

If a party intends to cross-examine the other party personally and there are allegations of family violence, the court must ensure that during the cross-examination there are appropriate protections for the party who is the alleged victim of the family violence.

The By Lawyers Children and Property Settlement commentaries have been updated accordingly.

ARNECC Model Participation Rules Version 5

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The ARNECC Model Participation Rules Version 5 for e-conveyancing are in effect from 25 February 2019 in NSW, VIC, QLD, WA and SA.

Client Authorisation Forms

There are now two separate types of Client Authorisation Forms:

  • Client Authorisation Representative– authorises a solicitor or conveyancer to act for the client in a conveyancing transaction;
  • Client Authorisation Attorney– authorises a person acting under a power of attorney to act for the donor in a conveyancing transaction, the donor being the person giving the power.

The Client Authorisation Attorney form only applies to Subscribers signing as Attorneys and not any other Subscriber who may happen to be an Attorney e.g. a conveyancer or lawyer generally acting as their Client’s Attorney. A Representative Subscriber (conveyancers and lawyers) should continue to use the Client Authorisation – Representative form.

See rules 5.6 and 6.3 for requirements.

A new Guidance Note is currently being drafted by ARNECC that will provide further information regarding this new provision.

Practitioners must ensure they use the correct Client Authorisation Form for each conveyancing transaction.

These forms are available on all By Lawyers Conveyancing matter plans within Folder ‘A. Getting the matter underway > Verification of identity folder’.

Verification of Identity in mortgage transactions

Responsibilities for verifying the identity of mortgagors have been updated. Practitioners acting for a mortgagee, must take reasonable steps to verify the identity of mortgagors in accordance with r 6.5.1(b), even where the mortgagor is represented.

Additional identity documents

Australian Evidence of Immigration Status ‘ImmiCard’ and Australian Migration Status ‘ImmiCards’ are now acceptable types of identity documents and have been added to the table in Schedule 8 of the Model Participation Rules.

All relevant By Lawyers publications have been updated to reflect the ARNECC Model Participation Rules Version 5, including the detailed Verification of Identity commentary located in all conveyancing and property matter plans under Folder ‘A. Getting the matter underway’.

Jurisdiction of Small Claims Division increased – NSW

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An amendment to section 29(1)(b) of the Local Court Act sees the jurisdiction of the Small Claims Division increased from 28 February 2019.

The jurisdictional limit of the Local Court when sitting in its Small Claims Division will now be $20,000 as of 28 February.

Previously the jurisdictional limit was $10,000. The amendment does not apply to proceedings instituted in the Court before 28 February 2019.

This increase was legislated under the Justice Legislation Amendment Act (No 3) 2018 No 87 with commencement upon proclamation. The Governor of NSW made the proclamation on 13 February 2019.

The By Lawyers Local Court Civil publication has been updated accordingly.

Changes to Family Court Consent Orders kit and eFiling

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Changes to Family Court Consent Orders Kit and eFiling procedures have now taken effect, arising out of the Civil Law and Justice Legislation Amendment Act 2018. These include:

  • Updated information pages in the Application for Consent Orders Kit;
  • References to ‘husband’ and ‘wife’ replaced with ‘party to a marriage’ and/or ‘party to a de facto relationship’; and
  • Updated sectional references in the Family Law Act for superannuation in the Application for Consent Orders form.

The updated kit and form are now available in the By Lawyers Family Law publications.

eFiling

The Court recommends that practitioners use the ‘unguided’ process for uploading Application for Consent Orders forms. This process was introduced as part of the Digital Court Program and makes it easier to upload forms without having to input information twice. The ‘guided’ eFiling process will only remain available until 31 March 2019.

For more information about eFiling and the ‘unguided’ process see the By Lawyers Family Law guide, or visit the Digital Court Program on the Family Court website.

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