ByLawyers News and Updates

Family Law guides – FED

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Author review

A full review of the By Lawyers Family Law guides has been conducted to ensure that all content is in line with current law and practice.

This review was conducted by our experienced author Keleigh Robinson, a Family Law Accredited Specialist.

Resulting updates and enhancements to our Family Law guides include:

Children

  • New commentary on Watch list order applications.
  • New tables summarising:
    • Family violence legislation; and
    • Appeals from the Federal Circuit Court and the Family Court.
  • Amendments to the matter plan to cover potential issues, interim and urgent applications in the one section.
  • New example content precedents:
    • Application in a case for substituted service;
    • Affidavit in support of the application in a case for substituted service; and
    • Changing parenting orders by consent.

Property settlement

  • Expanded commentary on Conciliation conferences in the Federal Circuit Court.
  • A new table summarising appeals from the Federal Circuit Court and the Family Court.
  • ‘Going to Court’ sections on the matter plan updated in line with current practice.
  • New example content precedents:
    • Application in a case for substituted service; and
    • Affidavit in support of the application in a case for substituted service.

Financial agreements

  • Expanded commentary on the Court’s power to set aside a financial or termination agreement and Death of a party to a financial agreement.
  • Expanded table comparing financial agreement legislation for marriages and de facto relationships, including de facto relationships in Western Australia.
  • New precedent letters for drafts of the different types of financial agreements.
  • Improved accessibility on the matter plan to real property transfer forms for the different jurisdictions.

Divorce

  • Expanded commentary on:
    • The filing process for same-sex couples;
    • The application and service;
    • Marriage certificates;
    • Separation under the one roof;
    • Reduction of court fees;
    • Substituted service and dispensation of service; and
    • Finalising the divorce.
  • A new table and accompanying notes on property division.
  • A new same sex couples section on the matter plan.
  • Revised service section to reflect current practice.

101 Family Law Answers

  • New cases and commentary on:
    • Urgent and interim spousal maintenance;
    • Interim costs orders;
    • Amending applications, responses and other documents; and
    • Private mediation and lawyer attendance.

Keep up to date with By Lawyers

This review of our Family Law guides is part of By Lawyers commitment to regular updating and enhancement of our publications. With By Lawyers always keeping you up to date you can enjoy practice more.

Paid parental leave – Fed

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Employment law – Paid parental leave amendments

The Paid Parental Leave Amendment (Work Test) Act 2019 has made the following changes to the ‘work test’ under the Paid Parental Leave Act 2010:

  1. The insertion of s 33(2A) which provides for the work test period for a pregnant woman in an unsafe job. The period begins 13 months immediately before the woman had to cease work if the cessation was due to the hazards connected with her work posing a risk to the pregnancy; and
  2. The permissible break in the work test period provided for in s 36 has increased from 8 weeks to 12 weeks between two working days.

These amendments commence form 1 January 2020.

The By Lawyers Employment Law commentary has been updated accordingly.

By Lawyers wish everyone a happy and safe festive season.

Immigration – FED

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Two important changes to Australian immigration law commence on 16 November 2019.

  • The Skilled Employer Sponsored Regional (Provisional) visa 494 is replacing the Regional Sponsored Migration Scheme visa 187.
  • The Skilled Work Regional (Provisional) visa 491 is replacing the Skilled Regional (Provisional) visa 489.

The new visas allow skilled workers to work in regional Australia. They can be a pathway to permanent residency, via the Permanent Residence (Skilled Regional) visa 191, which commences in November 2022.

Applicants for the Skilled Employer Sponsored (Regional) visa 494 must be under the age of 45 at the time of application, have competent English and at least three years full-time relevant work experience in the nominated occupation, or a related field, at the same level of skill. The visa is for a five-year period.

Applicants for the Skilled Work Regional (Provisional) visa 491 must be under the age of 45 at the time of application, complete a positive skills assessment, be nominated by an Australian state or territory government agency, or be sponsored by an eligible family member residing in the regional area and be invited to apply for the visa after the submission of an expression of interest through SkillSelect. The visa is also for a five-year period.

The By Lawyers Immigration publication will be updated accordingly.

Companies – FED

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Following an extensive author review, the By Lawyers Companies guide has been substantially enhanced. Users will find new commentary and a number of helpful new precedents.

The commentary now includes sections on Running a company and Company disputes.

With trademark By Lawyers practicality, the new sections of commentary assist practitioners to advise clients about most of the common issues which arise in the operation of small private companies, from managing company business, conducting meetings, issuing new shares and dealing with various types of company disputes, to negotiating share sales, handling insolvency events and participating in voluntarily winding up. Some aspects of the existing commentary on Setting up a company have also been enhanced and new precedents added.

Users will find the following new precedents have been added to the By Lawyers Companies Guide:

  • Retainer instructions – Company disputes;
  • Initial letter to company which has received a statutory demand;
  • Letter to the client  to make an appointment to sign documentation required for incorporation;
  • Letter to the client advising that the company has been incorporated;
  • Letter to the client with draft shareholder’s agreement;
  • New letters gathering information relevant to company disputes:
    • Letter to client requesting relevant documents;
    • Letter to director requesting inspection of company minutes;
    • Letter to director requesting company records; and
    • Letter to director advising of intention to seek a s 247A order to inspect company records;
  • New option precedents:
    • Notice of exercise of call option;
    • Notice of exercise of option to purchase
    • Notice of exercise of put option;
    • Notice of appointment of nominee;
    • Letter to seller’s solicitor exercising option; and
    • Letter to buyer’s solicitor exercising option;
  • Company resolution; and
  • Minutes of meeting – Directors.

These substantial enhancements to this already popular publication are part of By Lawyers commitment to constantly add value for our users and keep our content updated.

We invite you to peruse the new commentary and precedents in the Companies Guide, located in the Companies, Trusts, Partnerships and Superannuation publication. Also available in the Reference materials folder on each of these matter plans is the helpful reference manual Business structures and comparative table, which compares and contrasts the different types of business structures and considers their advantages and disadvantages, including from a taxation point of view.

 

 

 

Legal professional privilege – FED

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Legal professional privilege can be a complex area. But it can also be a very important area for practitioners and their clients. Fast, accurate answers to difficult questions about legal professional privilege can be extremely valuable. By Lawyers provides substantial commentary, cases and legislation on legal professional privilege in both Practice Management and 101 Subpoena Answers publications.

Evidence Act or common law?

A critical consideration when dealing with legal professional privilege is whether the uniform evidence law or the common law applies. Generally, in state courts the applicable state Evidence Act applies in all situations. However in federal jurisdictions, the Commonwealth Evidence Act applies at trial, but the common law applies in interlocutory proceedings.

The recent case of Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 dealt with legal professional privilege in a federal jurisdiction. The matter involved an objection taken to the production of documents under subpoena. The objection was on the basis of legal professional privilege, and specifically litigation privilege.

Being an interlocutory application Griffiths J applied (at [12]) the common law test where ‘litigation privilege attaches to confidential communications between a legal advisor or client and a third party if made for the dominant purpose of use in, or in relation to, litigation which is then on foot or is reasonably anticipated’.

Evidence

The court held that whomever claims privilege bears the onus of establishing the basis for the claim. That party is required to adduce admissible direct evidence to demonstrate that the claim is properly made. This means revealing the relevant characteristics of each document that will allow the court to uphold a claim for privilege. Simply tendering the relevant document and asking the court to test for privilege will not be sufficient. This affirms Brereton J’s decision in Hancock v Rinehart (Privilege) [2016] NSWSC 12 that the court’s power to inspect a document is not to facilitate the requisite proof, but to scrutinise and test the claim.

This is an important point for practitioners instructed to make such a claim. Detailed evidence must be filed as to the reason for and circumstances of the creation of the documents, including how confidentiality was maintained. The deponent of the affidavit may be cross-examined. For this reason the solicitor with carriage of the matter should think very hard before being the one to swear such an affidavit.

‘Reasonably anticipated’

Griffiths J also affirmed that, for the privilege to apply, the litigation must be reasonably anticipated, not simply a mere possibility. This does not mean more likely than not. It is to be determined objectively.

More information

See the By Lawyers Practice Management guide, or the 101 Subpoena Answers publication in the Reference materials folder of every By Lawyers litigation guide, for more detail about this case and more information on legal professional privilege generally.

Setting aside financial agreements – FED

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A recent case on setting aside financial agreements has been added to the By Lawyers 101 Family Law Answers publication.

Section 90K(1) of the Family Law Act 1975 provides for the limited circumstances in which a court will consider setting aside financial agreements entered into by married couples. The equivalent section for de facto couples is s 90UM.

In Frederick & Frederick [2019] FamCAFC 87, the Full Bench of the Family Court set aside a financial agreement on the grounds that there had been a material change in the circumstances relating to the care, welfare and development of a child of the marriage and the applicant would suffer hardship if the agreement were not set aside – s 90K(1)(d).

See 101 Family Law Answers and the By Lawyers Family Law commentary for more information.

Training and supervision – Podcast

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Training and supervision of junior professional staff is a critical area for law firms. It impacts directly on many key areas of the practice: quality and consistency of output, productivity, team harmony and staff retention – and perhaps most importantly of all client satisfaction.

Our Managing Director Brad Watts recently shared some thoughts, as part of a LEAP global podcast series, about how By Lawyers practical legal guides can assist with training and supervising junior lawyers. Brad has 25 years of legal practice experience and is one of the contributors to the By Lawyers Practice Management guide.

Listen to the podcast to hear how By Lawyers guides can assist firms and individual solicitors with their training and supervision requirements.

By Lawyers guides include detailed commentaries and reference materials which are powerful tools to help ensure junior lawyers  have the guidance and support they need, improving productivity and retention of staff, while easing the pressure on principals and more senior lawyers.

Enjoy practice more, with By Lawyers.

 

 

Insolvency To Do lists – FED

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The By Lawyers Bankruptcy and Liquidation guides have been updated with the inclusion of four Insolvency To do lists.

These new precedents provide practical guidance for practitioners as they progress through a matter.

The To Do lists provide helpful prompts for each important step to be taken in a matter when acting for either the creditor or the debtor in both personal and corporate insolvency matters, including:

  • Liquidation;
  • Winding up;
  • Deeds of company arrangement;
  • Debt agreements;
  • Personal insolvency agreements; and
  • Bankruptcy proceedings.

The new To Do lists can be found in folder A. Getting the Matter Underway in the By Lawyers Bankruptcy and Insolvency guides and will assist practitioners in safely and efficiently managing their matters.

Partnerships – updated precedents- FED

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The By Lawyers Partnerships publication has been updated, as follows:

Partnership agreements amended in Partnerships guide

The Partnership agreement and Limited partnership agreement precedents have been amended in a number of respects, including:

    • The ‘Duration of partnership’ clause has been removed, as this is sufficiently covered in the ‘Expulsion, retirement or death of a partner’ and ‘Dissolution’ clauses;
    • A new clause 4 (b) has been inserted, to allow for non-monetary capital contributions if these are agreed between the partners. A corresponding clause has been inserted as 8(d) in the Limited partnership agreement;
    • The ‘Expulsion of a partner’ clause has been updated to become ‘Expulsion, retirement or death of a partner’ and now has improved function. Please review the clause for the changes made. The corresponding clause in the Limited partnership agreement is named ‘Termination of partner’;
    • The ‘Winding up’ clause in the Partnership agreement has been renamed ‘Dissolution’ and amended to provide additionally for the situation where the partners agree to dissolve the partnership;
    • The ‘Notices’ clause has been amended to remove facsimile delivery;
    • Various other small amendments have been made to improve readability.

New letters added to Partnerships matter plan

Two new precedents letters have been added to the Partnerships matter plan:

      • Letter to client with draft partnership agreement – for originally sending the draft partnership agreement to the client;
      • Letter to client with draft agreement – for sending later variations of the document to the client.

These additions and amendments have been made as a result of user feedback and author review, to enhance the publication and assist solicitors in their daily practice when advising upon and preparing documents for clients entering into partnerships.

Practitioners who are regular users of these precedents may benefit from a careful review of each clause in the agreements, to ensure they are familiar with the amendments.

New sponsored parent visa – Immigration – FED

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A new Sponsored Parent (Temporary) visa (subclass 870)has been created.

Applications for the new visa will open on 1 July 2019.

This visa allows biological parents, adoptive parents, step-parents or parents-in-law of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to visit Australia for periods of 3 or 5 years at a time, but with a maximum combined period of 10 years.

Applications for the new visa can only be made outside Australia and online through ImmiAccount.

An applicant must be sponsored by an ‘approved parent sponsor’.

The application must be lodged within 6 months of approval of the applicant’s sponsor as an approved parent sponsor. The criteria for an approved parent sponsor is set out in Division 2.13A – Criteria for approval of family sponsor, of the Migration Regulations 1994.

The sponsored parent visa will only be granted to maximum of 15,000 applicants each year.

Because of the advance warning regarding the commencement date for the new visa, practitioners might expect to commence receiving enquiries about it now, so the commentary in the By Lawyers Immigration guide has been updated accordingly. The expected average processing times for the new sponsored parent visa are currently unknown.

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