ByLawyers News and Updates

Family Law – Divorce publication review

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The By Lawyers Family Law author has reviewed the Divorce publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Application without marriage certificate – If the parties do not have a copy of the marriage certificate, an application should be made at the relevant state Births, Deaths and Marriages. In the case of an overseas marriage, if a copy of the marriage certificate cannot be obtained, the applicant may be able to file an affidavit pursuant to r 25.01(3) of the Federal Circuit Court Rules addressing the reasons for the failure to file the marriage certificate.
  2. Appealing a divorce order – In Price & Underwood (Divorce Appeal) [2009] FamCAFC 127, the Full Court addressed the issue of whether an appeal may be filed after a divorce order has taken effect. The court was split on the issue, with Boland and Ryan JJ finding that s 93 of the Family Law Act is clear and unambiguous – no appeal lies from a divorce order which has become final. Where a divorce order which has become final the only relief available is a declaration under s 113 that the divorce order is void. May J took the view that a divorce order could be subject to an appeal even if it is of effect, on the basis of a miscarriage of justice.

As there have not been any changes in terms of significant case law or legislative changes in the last 12 months, no changes were made to precedents or the matter plan.

The importance of Matter Plans in By Lawyers Guides

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Each of our Legal Guides contains a Matter Plan which follows the typical flow of a matter, with precedents and commentary ordered sequentially, and less commonly used content appearing in ‘If required’ folders.

This structure not only allows members of your team to confidently conduct matters in areas they are perhaps unfamiliar with, but also allows for precise answers to be found quickly. Users have the freedom to access as much or as little guidance as is needed, with the ability to easily navigate to the commentary and precedents required.

Each Matter Plan typically starts with the folder ‘Getting the Matter Underway’. It contains everything you need to get a matter started. There are precedents such as a file cover sheet, retainer instructions, a ‘to do’ list and initial letters. There is also commentary detailing the first things you need to do and be aware of when getting the matter underway. Each Matter Plan proceeds through the logical sequence of a matter, concluding with a ‘Finalisation’ folder, which contains precedents such as a tax invoice and finalisation letters.

This clear structure is a very useful risk management tool and essential to daily practice.

Using the Matter Plan

  1. Open a matter.
  2. From the Details & Correspondence tab, click on the  button. If the Legal Guides tab is not your default view, select the Legal Guides tab to view the By Lawyers Guide for the selected matter type. The Legal Guides tab can be set as your default view from the hamburger menu at the top right of the Guides & Precedents screen.
  3. The Legal Guides tab displays the Matter Plan which proceeds through the logical sequence of the matter.
  4. Commentary is identified by green text and the  icon being C for commentary. Clicking the green commentary title will open the commentary in a browser.
  5. Precedents are identified by blue text and the  icon being W for Word Document. Click the precedent to open it. The precedent will merge information from the matter.

The Matter Plan is your road map for navigating through our Guides, allowing you to maximise the value of our detailed content and get the most from By Lawyers.

Family Law – Financial agreements publication review

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The By Lawyers Family Law author has reviewed the Financial Agreements publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Child support agreements and financial agreements: Whilst a financial agreement may also be a binding child support agreement if it complies with the requirements in the child support legislation, it is recommended that child support ought to be provided for in a Binding Child Support Agreement or a Limited Child Support Agreement; and
  2. Enforcement procedure when a case has not been on foot: i.e. to seek a declaration as to the enforceability of the binding financial agreement under 90KA or 90UN, an initiating application would need to be filed, seeking both a declaration and the orders in relation to enforcement. The practical reality is in most applications seeking enforcement of a binding financial agreement, an initiating application is filed seeking both the declaration and enforcement orders at once.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

Letter submitting financial agreement to other side acting for themselves has been amended by adding the following paragraph:

The agreement cannot be signed without you obtaining independent legal advice and the solicitor needs to sign where indicated on the document to confirm you have been provided with this advice.

Reference Manual – 101 Family Law Answers – additional commentary

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Stamp duty and other charges

Whilst stamp duty is the common duty parties seek an exemption from, s 90(1) does not only provide an exemption from stamp duty. It provides that certain agreements/orders are not subject to any duty or charge under any law of a State or Territory. This may include land titles office fees on a discharge of mortgage, withdrawal of caveat and/or registration of mortgage.

Practitioners need to be mindful when drafting orders to ensure their orders specify what is required: for example, whether a refinance is required, or whether a withdrawal of caveat is provided.

Family Law – Property Settlement publication review

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The By Lawyers Family Law author has reviewed the Property Settlement publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Evidentiary issues with spousal maintenance – the best evidence for the effect of health issues on the earning capacity of the applicant is usually that of a medical practitioner; and regarding the attempts made by the applicant to secure paid employment, if acting for the respondent, evidence from a recruitment expert as to the applicant’s employability and likely salary may be useful;
  2. It is best practice to advise clients, even in consent matters, to provide and request disclosure of at least the basic documents. If they do not want to do so, advising them of the risks for an agreement or orders to be set aside on the basis of non disclosure is recommended;
  3. Consent orders and the registrar seeking further clarification – a requisition may be avoided by providing a covering letter or statement of agreed facts along with the documents to be filed, explaining the orders and background which gives rise to what otherwise may appear unjust;
  4. Federal Circuit Court Practice Direction No. 2 of 2017 providing strict directions for affidavits in interim matters;
  5. Section 79(9) and s 90SM(9) of the Family Law Act provides that the court shall not make an order in a property settlement proceedings, other than an interim order or a consent order, unless the parties have attended a conference with a Registrar or Deputy Registrar, i.e. a conciliation conference. If the matter is urgent or there is another special circumstance, the court may make an order notwithstanding parties have not attended a conference; and
  6. If a party seeks to amend their application or response refer to Federal Circuit Rule 7.01 and Family Law Rule 11.10.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

There were only minor amendments to several letters regarding use of the term “initiating applications” as opposed to “application for final orders”.

 

LEAP users – Getting the most out of your By Lawyers Guides and Precedents

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By Lawyers is Australia’s leading provider of practical Legal Guides, with over 140 Matter Plans, 7000 Precedents and detailed Reference Manuals in various areas of law. Our legal guides are designed to help you find answers quickly enabling you to work faster and smarter.

Legal Guides Tab

Using the Legal Guides tab properly is the key to getting the most out of each By Lawyers guide.

In the Guides and Precedents window, the Legal Guides tab is the best way to view and use By Lawyers content. Using the Legal Guides tab is an important risk management tool and we encourage all users to set Legal Guides as their default tab, instead of the Browse tab. This can be set in the ‘hamburger’ menu from the Legal Guides tab.

The Browse tab does not show the commentary, the layout is more difficult to navigate, and the precedents and folders do not always appear in the order intended.

The Legal Guides tab shows the relevant guide for the matter type associated with your matter and defaults to your last viewed folder in the guide. Each guide contains a Matter Plan which follows the typical flow of a matter, with precedents and commentary ordered sequentially, and less commonly used content appearing in ‘If required’ folders.

At the top of the Legal Guides tab, you will see:

  • a ‘Related Guides’ drop down;
  • a ‘Browse more guides’ button; and
  • a Search Bar.

Related Guides drop down

The Related Guides drop down will show other guides that are related to the current guide, including any Reference Manuals. For example:

 

Browse more guides button

If you are looking for a guide that is not related to your current matter type, you can search for and open any other guide from the ‘Browse more guides’ button which allows you to narrow your navigation and searching by state. Any precedent that you open from another guide will merge with your current matter and can be saved into this matter.

Search Bar

If you are unable to find a precedent after navigating the Matter Plan, you can use the Search Bar at the top of each guide. You can search both precedents and commentary, or you can confine the search to either precedents or commentary. For example:

If you are still having trouble, please contact our Client Services Manager on (02) 4858 0619 or by email at support@bylawyers.com.au who is always happy to help.

Family Law – Children publication review

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The By Lawyers Family Law author has reviewed the Children publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Practical application of s 65DAC –  Equal shared parental responsibility requires parents to consult one another and make a genuine effort to jointly make decisions on major long term issues relating to a child. The practical application of the obligation in s 65DAC can be difficult in some cases and is sometimes misinterpreted. The requirement is to consult and to make a genuine attempt to jointly make a decision;
  2. Practical use of parenting plans in situations where there is not high conflict; and
  3. Federal Circuit Court Practice Direction No. 2 of 2017 providing strict directions for affidavits in interim matters.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

The author also created a new precedent letter: Letter of appointment to psychologist for a private family report located in the Going to Court section. The letter covers party representation, what the report needs to address and a list of enclosed documents filed in the proceedings.

New Joint Ventures Guide

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Within the must have commercial publication ‘Companies, Trusts, Partnerships and Superannuation’ we have created a new guide focusing extensively on the topic of Joint Ventures.

The guide contains commentary and precedents that have been drafted to provide an end to end solution for the joint venture trading structure such as:

  • establishing a new joint venture and the joint venture agreement;
  • a project management agreement;
  • a joint venture agreement for property development projects;
  • methods for selling an interest in a joint venture; and
  • withdrawal and terminating a joint venture.

The commentary also discusses the taxation and property ownership implications of operating under a joint venture structure.

 

101 Employment Answers – commentary added

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By Lawyers Reference Manual – 101 Employment Answers has been enhanced with the addition of commentary regarding Unfair dismissal – period of continuous employment and Casual Employment.

An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee: see s 384(1).

Under s 384(2), a ‘period of service’ as a casual employee does not count towards the employee’s period of employment unless:

  • the casual employee was employed on a regular and systematic basis; and
  • the casual employee had a reasonable expectation of continuing employment on a regular and systematic basis.

The Full Bench decision of the Fair Work Commission in Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237 (particularly paragraphs 10 to 13) provides guidance as to the approach to take for calculating a ‘period of service’ as a casual employee.

Immigration – New letters added to Guide

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Seven helpful new precedents have been added to our Immigration Guide to make common communications quicker and easier:

–              Cover letter – Skilled visa (BLFL:FED:IMM:045)

–              Cover letter – Visitor visa (BLFL:FED:IMM:051)

–              Letter of advice – Employer Nomination Scheme visa (BLFL:FED:IMM:049)

–              Letter of advice – Prospective marriage (BLFL:FED:IMM:050)

–              Letter of advice – Temporary skill shortage visa (BLFL:FED:IMM:047)

–              Letter to client – Request for further information (BLFL:FED:IMM:048)

–              Response to request for further information (BLFL:FED:IMM:046)

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