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Family law property dealings – FED

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For the assistance of practitioners conducting family law property dealings, a new folder has been added to the By Lawyers Family Law publication. Commentary and precedents are available to assist family law practitioners at the point of a matter where real property needs to be transferred between the parties.

The new folder is called If required – Real property dealings. The commentary and precedents within the new folder are extracted from the By Lawyers Conveyancing and Property publications. They provide guidance and the necessary forms and precedents to verify the client’s identity to the relevant standard for electronic lodgments of transfers and dealings with real property.

The new folder contains the following precedents and commentary required for the electronic settlements process:

This useful content has been added to the Property Settlement guide and the Financial Agreements guide. The new folder can be found in Finalising the matter on both matter plans. The location of this new content reflects the fact that family law property dealings are typically effected upon finalisation of the matter.

Family law practitioners are reminded that the commentary in both the Family Law Property settlement and Financial agreements guides cover the considerations and procedure for transfers of real property in family law matters. The By Lawyers 101 Family Law Answers reference guide also provides helpful information which includes valuing real property in the family law context, stamp duty implications of real property transfers in family law, together with coverage of capital gains tax and foreign resident withholding payments.

This enhancement arises from feedback from a By Lawyers subscriber. We value such feedback and always love to hear our users. Don’t hesitate to get in contact: askus@bylawyers.com.au

Visa changes – FED

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Recent amendments to immigration legislation have resulted in visa changes from 1 July 2021.

Visa changes

The Home Affairs Legislation Amendment (2021 Measures No. 1) Regulations 2021 repealed the Subclass 132 (Business Talent) visa. The  criteria and conditions for the Subclass 188 (Business Innovation and Investment (Provisional)) and Subclass 888 (Business Innovation and Investment (Permanent)) visas have also been amended.

The repeal of the Subclass 132 visa includes both its streams; the Significant Business History and Venture Capital Entrepreneur streams. This removes the direct-to-permanent pathway and instead focuses on the provisional-to-permanent pathway provided by the Subclass 188 visa pathway to a Subclass 888 visa.

The amending regulations also repeal the Premium Investor stream of the Subclass 188 visa. This visa stream was assessed by the government as unsuccessful.

Current applicants and holders for these three streams of visa are not affected by these changes.

Summary of changes

The amendments to the criteria and conditions for the Subclass 188 (Business Innovation and Investment (Provisional)) and Subclass 888 (Business Innovation and Investment (Permanent)) visas entail:

  • The assets and turnover requirements for the Business Innovation stream of the Subclass 188 visa have been increased to attract business migrants with more financial capital to invest in Australia.
  • The designated investment requirement, based on passive investment in government securities, has been changed. The requirement is now to make a complying significant investment. This change is made through various amendments to the Subclass 188 visa and by increasing the minimum investment required from $1,500,000 to $2,500,000.
  • The requirements for the Entrepreneur stream have been adjusted to make this stream more attractive for start-up and early-stage entrepreneurs. These amendments to the Subclass 188 and 888 visas include:
    • Removal of the requirement for applicants to secure significant investment by way of a $200,000 funding threshold and limits on eligible sources of funding; and
    • A new requirement for applicants to be endorsed by a State or Territory government and innovation industry partners.
  • The extension of the Subclass 188 provisional visa validity period to five years and amending the period of provisional residence required for grant of the Subclass 888 permanent visa. For most streams this represents a reduction of the period required from four to three years, meaning holders can seek to progress to permanent residence more quickly.

The By Lawyers Immigration publication has been updated to reflect these amendments.

Franchising – All states

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Franchising laws across Australia have been amended.

Franchising Code of Conduct

The Franchising Code of Conduct is a mandatory industry code that regulates the conduct of franchising parties across Australia.

Significant amendments to the code introduced by the Competition and Consumer (Industry Codes—Franchising) Amendment (Fairness in Franchising) Regulations 2021 give further protection to franchisees. There are new rights in relation to disclosure, remedies and termination.

Dispute resolution amendments apply to disputes notified on or after 2 June 2021.

The amendments providing franchisees with the right to greater information and remedies apply from 1 July 2021.

Changes to the required disclosure document apply from 1 November 2021.

Some of the key changes include:

  • Franchisors are required to provide a mandatory fact sheet in addition to the disclosure document, and to including additional information in the disclosure document. The disclosure requirements also apply to the transfer of an existing franchise agreement.
  • Franchisors are prohibited, in certain circumstances, from requiring franchisees to undertake significant capital expenditure.
  • New arbitration and conciliation mechanisms are available.
  • Cooling off periods have been extended from 7 to 14 days. They also apply to a broader range of scenarios.
  • Franchisees have the right to request early termination of a franchise agreement.
  • The ability for franchisors to terminate agreements for special circumstances without notice has been restricted.

Updates to By Lawyers publications

The commentary and precedents within the By Lawyers Business and Franchise publications have been updated to reflect these amendments.

See Folder ‘E. IF REQUIRED – FRANCHISES‘ on the matter plans. This includes the Franchise Agreement precedent and Model disclosure document for franchisee or prospective franchisee precedent. Links are available on the mater plan to the new Information statement for prospective franchisees published by the ACCC, and to the new Key facts sheet smart form.

COVID signing provisions – QLD

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From 1 July 2021, some of the COVID signing provisions applicable in Queensland during the pandemic will cease.

The Justice Legislation (COVID-19 Emergency Response– Documents and Oaths) Amendment Regulation (No.2) 2021 means that from 1 July any ‘enduring’ documents – wills, enduring powers of attorney, and advance health directives – to be signed by a signatory or substitute signatory need to be made, signed and witnessed under the ordinary law.

One remaining exception is the modified COVID signing provisions that enable nursing practitioners, in addition to doctors, to complete a certificate in an advance health directive stating that the signatory appeared to have the necessary capacity to make it.

This regulation also does not affect the modified arrangements under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 in relation to the making, signing and witnessing of affidavits, statutory declarations, oaths, deeds, particular mortgages and general powers of attorney under the documents regulation. These measures are currently scheduled to expire on 30 September 2021.

The By Lawyers dedicated Dealing with COVID-19 legal issues commentary will be updated. This guide, accessed via a link at the top of every By Lawyers matter plan, provides practitioners with helpful information about all relevant COVID signing provisions and other important temporary COVID measures.

See the By Lawyers Wills, Powers of Attorney & Advance Health Directives and Mortgages publications for more information. See also the folder of Blank deeds, agreements, statutory declarations and execution clauses in folder A. Getting the matter underway folder on the matter plan in every By Lawyers publication.

Statutory demand – FED

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The minimum amount for issue of a statutory demand increases from 1 July 2021.

The Corporations Amendment (Statutory Minimum) Regulations 2021 permanently increases the amount at which a creditor can issue a statutory demand to a company. This ‘statutory minimum’ will be increased from $2,000 to $4,000.

The By Lawyers Insolvency – Company liquidation Guide has been updated with an Alert, to assist practitioners who may be advising clients about their debt recovery options and need to consider the forthcoming increase. The commentary will be amended accordingly in due course.

A statutory demand, under s 459E of the Corporations Act 2001, for a company to pay a debt due and owing, can be a precursor to an application for winding up the company, relying upon non-compliance with the demand to establish a presumption of insolvency. The demand may be contested on the grounds of a genuine dispute about the debt, given that the demand does not need to be based upon a judgment.

Small business clients – FED

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A folder of new precedents for clients who are commencing or operating small businesses has been added to all Purchase of Business, Companies and Partnerships guides.

The new library of precedents provides a suite of documents which practitioners can provide to their clients who own and operate small businesses, to assist them with the day-to-day running of their businesses. These documents can be provided to clients both when they are setting up or purchasing a new business and when required for existing businesses. The documents are general in nature so they can be customised and amended as required for the needs of different clients. The precedents are designed to apply across various sectors, whether traditional storefront retail or online and whether supplying products or services.

The helpful new precedents available in the folder include:

  • Website terms of use – multiple precedents catering for different types of small business;
  • Example tax invoice;
  • Credit application form;
  • Liability waiver and consent form; and
  • Returns and refunds policy.

Subscribers will find the new ‘If Required – Library of precedents for small business clients’ folder located in:

  • Purchase of Business matter plan for each state – in the Reference materials folder;
  • Companies matter plan – in folder D. Running a company; and
  • Partnerships matter plan – in folder B. Establishing a partnership.

This practical material was added to these existing By Lawyers publications in response to requests and suggestions from By Lawyers subscribers. The precedents provide practitioners with additional tools so they can better assist their clients with all aspects of their businesses.

Casual employment – FED

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Recent amendments to the Fair Work Act

There is a new statutory definition of ‘casual employee’ from 27 March 2021. There is also an expanded statutory pathway for regular casual employees to convert their employment status to full time. Employers now have an obligation to offer permanent employment in certain circumstances.

Some relief has been granted to employers for underpayment claims from employees incorrectly classified as casual. This addresses instances of ‘double dipping’.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has introduced significant amendments to the Fair Work Act 2009 including:

Statutory definition

Section 15A provides that a person is a casual employee if they have been offered and have accepted employment on the basis that the employer gave ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern…’.

Conversion to permanent employment

Additionally, for casual employees who fall outside the modern award framework there is a statutory obligation for employers to offer conversion to full or part-time employment, unless there are reasonable business grounds not to do so. This does not apply to small business employers.

Casual Employment Information Statement

Employers must provide casual employees with a Casual Employment Information Statement, before, or as soon as practicable after, they start their employment. This is additional to the Fair Work Information Statement.

Off-setting casual loading to prevent ‘double-dipping’

Employers are provided with relief for underpayment claims from employees incorrectly classified as casual.

Regular casual employee

The previous definition of ‘long term casual’ is replaced with ‘regular casual employee’. The definition relates to the element of employment on a regular and systematic basis, but without any specific time requirement.

By Lawyers keeps you up to date

For further details see the By Lawyers Employment Law publication which has been updated accordingly.

Lawyers doing immigration work – FED

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Removal of dual registration requirement

Barriers to lawyers doing immigration work have finally been lifted. From 22 March 2021 amendments to the Migration Act 1958 (Cth) remove the requirement for lawyers to also be registered as migration agents before doing immigration work for their clients.

Amendments to the Migration Act

Australian legal practitioners who hold an unrestricted practising certificate, as defined in the Migration Act, can now conduct immigration matters as part of their usual practice, with no requirement to register as migration agents under the Act.

Amendments to the Act by the Migration Amendment (Regulation of Migration Agents) Act 2020 effectively define an ‘unrestricted’ Australian legal practitioner as one who has completed their compulsory period of supervised practice after first being admitted. Those who hold an ‘unrestricted’ practising certificate are permitted to give immigration assistance in connection with legal practice without being registered as migration agents. They will no longer be able to be registered migration agents: s 276 of the Act.

Newly admitted Australian legal practitioners still within their supervision period may still become registered migration agents. In fact those practitioners may not provide immigration assistance to their clients unless they are registered migration agents. Their dual registration may continue for up to 4 years. This is intended to facilitate such lawyers doing immigration work while completing their supervision period.

The definition of Australian legal practitioner in s 275 of the Act, as amended, excludes lawyers who are admitted but who do not hold a practising certificate. It also excludes lawyers who are eligible to practice under the law of a country other than Australia or New Zealand. Those practitioners will need to register as a migration agent to be able to give immigration assistance in Australia.

Regulation

‘Unrestricted’ Australian legal practitioners are not subject to regulation by the Office of the Migration Agents Registration Authority (OMARA), whereas registered migration agents – including those who are ‘restricted’ Australian legal practitioners – are.

To be registered as a migration agent, an eligible ‘restricted’ Australian legal practitioner must satisfy the requirements of s 289A of the Act.

A registered migration agent must notify OMARA in writing within 28 days of becoming a legal practitioner, with a penalty of 100 penalty units for failure to do so: see s 312 of the Act. They will then be de-registered by OMARA.

Forms

From 22 March 2021 a legal practitioner who wishes to commence providing immigration assistance and has never been issued a Migration Agent Registration Number (MARN), will
need to complete the Australian Legal Practitioner Number (LPN) form from the Department of Home Affairs website. Al link to this form is available on the Immigration matter plan.

Appointment of a Registered Migration Agent, Legal Practitioner or Exempt Person, form 956 allows the holder of an Australian Legal Practising Certificate to advise the Department of Home Affairs that they have been appointed by a client to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.

The By Lawyers Immigration Guide has been updated accordingly. This publication is available to assist lawyers doing immigration work for their clients.

Children – Family Law – FED

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The By Lawyers Family Law Children publication has been reviewed. Resulting updates and enhancements to the commentary and precedents include:

  • Parenting Orders commentary re-ordered and streamlined, with consequent amendments to the matter plan and new section on applications by ‘Other persons’.
  • Transfer of less frequently used forms and precedents into ‘If required’ folders, for example, subpoenas.
  • A new top-level folder on the matter plan dedicated to the final hearing.
  • New commentary on Undertakings.
  • Restructure of the enforcement/contravention section of the matter plan into Dealing with breaches of orders with detailed commentary on both applications.
  • Updated case summaries in 101 Family Law Answers for binding child support agreements, applications by grandparents, and the variation of parenting orders.

This review is part of our current preparation for the commencement of the new court structure. Practitioners will be aware that the Commonwealth parliament has passed the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021, commencing 1 September at the latest. The new Acts create an amalgamated Federal Circuit and Family Court of Australia (FCFCA) with two divisions. The FCFCA will be the single point of entry for family law and child support cases.

The new court will continue to have a statutory obligation to protect the rights of children, promote their welfare, and protect them from family violence.

All four of the By Lawyers Family Law publications – Children, Property Settlement, Financial Agreements, and Divorce – will be revised and updated as required when the new court commences. Going forward, relevant decisions of the FCFCA will also be added to 101 Family Law Answers as they are published.

Family law cases – FED

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A number of recent family law cases have been added to 101 Family Law Answers.

These new family law cases are located in the following sections of this helpful reference manual:

Costs orders

For a discussion of interim lump sum payments see Russo and Russo & Ors [2020] FCWA 182 at [61]-[66].

Settlement offers

In Paradin & Paradin [2020] FamCAFC 245 an order that the husband pay the wife’s costs was set aside. The husband had rejected the wife’s Calderbank offer because it was ambiguous and was not specific as to breakdown of payments. Strickland J stated at [57]:

… I am reminded … of what the Full Court said in Pennisi, namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.

Contributions – Conduct and family violence

Benson & Drury [2020] FamCAFC 303 saw the Full Court dismiss an appeal by the de facto husband against a 5% adjustment in the de facto wife’s favour. The adjustment had been made due to the impact of family violence upon her contributions, based on the arguments raised in Kennon. However, the Full Court stated that the primary judge was in error for not considering the Kennon argument in a holistic way. At [35] they stated:

…The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

101 Family Law Answers is available as a related guide and also in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant family law cases. It is separated into the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers general procedural issues and the enforcement of orders.

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