ByLawyers News and Updates

Priority Property Pool – FED

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From 30 October 2023, under a new Federal Circuit and Family Court of Australia practice direction, special procedures apply for property matters that qualify as Priority Property Pool (PPP) Cases.

Some registries of the FCFCOA have operated special arrangements under the PPP500 pilot since February 2020. The arrangements will now apply to proceedings in all registries.

Priority Property Pool Cases are those where the net value of the asset pool is, or appears to be, less than $550,000 excluding superannuation interests, or not significantly greater and the court considers it appropriate to include the matter as a PPP case.

Previously, under the pilot program, the cap was $500,000.

Priority property Pool cases can include matters involving applications for property settlement, spouse maintenance, or urgent spouse maintenance.

Cases will not qualify as a PPP Case if:

  1. they involve entities such as a family trust, company, or self-managed superannuation fund the value of which is contested and requires valuation or expert investigation,
  2. only parenting orders are sought,
  3. both parenting and financial orders are sought, or
  4. child support is the issue.

The new Family Law Practice Direction – Priority Property Pool Cases applies. It revokes and replaces the previous Family Law Practice Direction Priority Property Pools Under $500,000, and must be read in conjunction with:

PPP Cases proceed differently to standard cases. The Guide for practitioners in PPP Cases sets out the applicable procedure. Important differences from standard case procedures include:

  • At each court date the parties’ lawyers must inform the judicial registrar of the costs their client has incurred to date, their estimated costs to the conclusion of a final hearing, and the source of the funding for representation.
  • Adjournments are discouraged and will be granted only in exceptional circumstances.

The By Lawyers Family Law Property Settlement publication has been updated accordingly.

Bail provision – NSW

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A new provision of the Bail Act 2013 commenced on 30 October 2023, under the Justice Legislation Amendment (Miscellaneous) Act 2023.

The new provision, s 28A of the Bail Act, enables a bail authority to impose a bail condition that an accused person only be released on bail into the care or company of a specified person or class of persons. This is called an accompaniment requirement.

The bail authority can impose such a condition as a pre-release requirement on an accused person’s bail. The condition is met when the specified person, or a person of the specified class, is present at the place from which the accused person is to be released on bail, and able to accompany them.

The condition is intended to be used to address identified bail concerns.

Reference to a class of persons is intended to ensure an accused person can be accompanied, where applicable, by someone from an organisation such as the National Disability Insurance Service or Youth Justice, in circumstances where the specific identity of the accompanying person may not be known in advance.

This new provision is subject to the existing provisions of the Act. Section 20A requires the bail authority to assess bail concerns and impose conditions that are:

  • reasonably necessary to address a bail concern,
  • no more onerous than necessary to address the bail concern in relation to which it is imposed, and
  • reasonably practicable for the accused person to comply with.

The commentary about bail in the By Lawyers Local Court Criminal guide has been amended accordingly, and the Retainer instructions – Bail precedent has been amended to prompt the practitioner to seek instructions about an accompanying person or persons.

Specialist Family Violence List – NSW

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A Specialist Family Violence List operates in some Local Court locations from 25 September 2023.

The Specialist Family Violence List Pilot Practice Note applies in the Downing Centre Local Court, Blacktown Local Court, Newcastle Local Court, Gunnedah circuit, excluding Tamworth, and Moree circuit. The list may operate at other local courts at the Chief Magistrate’s direction.

The practice note applies to all family violence related proceedings listed at those locations, which include:

  • All domestic violence offences, including breaches of Apprehended Domestic Violence Orders (ADVOs);
  • All applications for ADVOs, whether commenced by police or privately;
  • Family law applications if ancillary to an ADVO application.

Apprehended Personal Violence Orders and personal violence offences that are not domestic violence offences under s 11 of the Crimes (Domestic and Personal Violence) Act 2007 are excluded.

Eligible matters will automatically be placed in the list. Charges and related AVOs will be listed together and remain together as they progress.

There are different procedures for standalone ADVO proceedings and those with related criminal charges.

Lapsing interim order

The practice note provides that the court can deal with standalone ADVO matters in the Specialised Family Violence list by imposing a lapsing interim order (LIO). This is an alternative to a final order and operates to the same effect as a conditional discharge in a criminal matter.

If the court considers it appropriate to impose a LIO, the matter will be adjourned for a period at the court’s discretion and, if there are no breaches of the order during that period, the AVO may be withdrawn and dismissed.

If the defendant agrees to undertake counselling or other intervention during the adjournment period, this will be taken into account by the court when the matter returns.

Either party may return the matter to court at any time during the adjournment period to fix a date for a defended hearing. If a breach of the LIO results in charges, the court may relist the proceedings.

Each party can be heard on the suitability of an LIO. In determining whether to impose an LIO, the court may consider:

  • if it is by consent;
  • the complainant’s views, including if they do not want a final order and whether they have received independent advice;
  • the relationship between the complainant and defendant;
  • the seriousness of the allegations and the conditions being sought;
  • whether any LIO has been sought previously;
  • any impact of imposing an interim order rather than a final order;
  • whether the defendant is seeking treatment or counselling; and
  • any other matter the court thinks appropriate.

The commentaries in the By Lawyers Apprehended Violence Order (NSW) and Local Court (NSW) – Criminal guides have been updated accordingly.

Domestic violence leave – FED

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Family and domestic violence leave entitlements are extended to small business employees from 1 August 2023.

Under the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 paid leave replaced the previous entitlement to unpaid leave for all non-small business employees from 1 February 2023. That entitlement is now extended to small business employees, so it covers everyone. A small business is one with less than 15 employees.

Full-time, part-time, and casual employees are entitled to 10 days of paid family and domestic violence leave in every 12-month period of employment. It is not calculated on a pro-rata basis for casual employees and is all available up-front, which means a new employee has an immediate entitlement to the full ten days. The leave does not accumulate if not taken.

The leave can be taken for any purpose relating to the impact of family and domestic violence, which might include relocating, attending court, or attending medical, legal, counselling, and financial advice appointments.

Employers cannot include information in an employee’s pay slip identifying the type of leave paid.

Family and domestic violence is defined as violent, threatening, or other abusive behaviour by an employee’s close relative, current or former intimate partner, or a member of their household that both seeks to coerce or control them and causes them harm or fear.

The leave can be taken during a period of personal or carer’s leave, or annual leave.

The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply, including the requirement for the employer to maintain confidentiality: s 106C.

See the Fair Work Ombudsman website for more information.

The By Lawyers Employment Law publication has been updated accordingly.

Subpoenas – FED

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From 31 July subpoenas for production of documents, in most family law matters can be eFiled on the Commonwealth Courts Portal.

The Federal Circuit and Family Court of Australia (FCFCOA) has introduced eFiling through the Commonwealth Courts Portal for subpoenas seeking the production of documents where there is an ongoing family law final orders application on foot. Online filing is not available for interim applications, contravention applications or subpoenas for attendance and for attendance and production of documents.

There is a new option available in relevant matters on the portal for Request to issue a subpoena.

New subpoena forms apply. The old forms will still be accepted until Friday 29 September 2023.

Once the subpoena is issued the court will apply a Subpoena (Family Law) Coversheet which includes the last date for service, the date for production, and how the documents are to be produced. The new coversheets will be applied to all subpoenas, not only those able to be eFiled.

Documents in response to a subpoena cannot be produced through the portal. If possible, they are produced by sending an email to the court registry at the address noted on the subpoena’s cover sheet. All family law registries have a subpoena email address. If production by email is not possible the documents need to be otherwise delivered to the registry.

As part of this change the Notice of Objection has been removed from the new subpoena form. An updated version of the Notice of Objection is now a separate form available on the FCFCOA’s website.

By Lawyers Family Law Property Settlement and Children guides have been updated accordingly, with amended commentary and new hyperlinks covering the new processes for subpoenas, and the new forms added to the matter plans. The previous forms will remain available on the matter plan until at least 29 September.

Probate – NSW

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From 1 August 2023 most applications for an uncontested grant of representation must be applied for and filed online. The lodgment platform is available via the Probate tab on the Supreme Court website, and on the NSW Online Registry website. New users are required to register for an account.

The online process provides guidance as to the evidence required for a grant to be determined. It is intended to facilitate uncontested probate matters being processed quickly and accurately.

The new system applies also to applications for Reseal, and Letters of Administration.

Under the new process applicants are no longer required to lodge notice of an intended application at least 14 days prior to filing a summons. Instead, a notice of intended application will automatically be generated when an online application is filed.

The current paper forms will no longer be used. The new Probate system will generate the summons, affidavit of executor or administrator, inventory of property, and grant based on the information provided in the online application. These documents are then downloaded, executed, and filed via the online system. The system prompts for and allows additional affidavit evidence to be uploaded.

Rather than the previous process where applicants provided the court with a pre-paid envelope for the sealed copies to be returned when the grant is made, the new Probate system will generate these documents with a digital seal on each page. Copies of the grant will be immediately available for download once the grant issues.

Copies of testamentary documents, such as wills and codicils, are scanned and uploaded into the new Probate system. The originals of testamentary documents must still be filed with the court registry, either personally or by mail. They must be accompanied by a coversheet. See our previous News & Updates post: Wills coversheet.

The court has advised that  the registry will continue to accept paper-based applications up to and including 1 September 2023 to assist with the transition.

The By Lawyers Probate (NSW) and Letters of Administration (NSW) guides have been updated accordingly.

1 July updates – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News & Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

First home buyers – NSW

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New caps and rules over first home buyers schemes in New South Wales come into force on 1 July 2023.

The newly elected New South Wales government has announced extensions to the First Home Buyer Assistance (FHBA) scheme. First home buyers purchasing a new or existing property valued at less than $800,000 will pay no transfer duty. The cap increases on 1 July 2023 from $650,000. First home buyers who buy a new or existing property valued between $800,000 and $1,000,000 can apply for a concessional transfer duty rate. The qualifying range increases on 1 July 2023 from the previous band of between $650,000 and $800,000.

Purchasers who exchange on or after 1 July 2023 will receive the benefit of these higher caps.

The Minns state government has honoured its pre-election commitment to reverse the annual property tax opt-in for first home buyers. The First Home Buyer Choice scheme does not apply to contracts exchanged after 30 June 2023. Full transfer duty is payable on all contacts exchanged on or after 1 July 2023. Purchasers who exchanged between 16 January 2023 and 30 June 2023 have until settlement to make an election between an annual property tax and full transfer duty.

The residence requirement has been extended – eligible first home buyers must now occupy their home for a continuous period of 12 months instead of six months, within 12 months of settlement. The residence requirement applies to the First Home Buyers Assistance scheme, the First Home Owner grant, and the deferral of transfer duty payment for off the plan transactions.

The  By Lawyers New South Wales conveyancing publications have been updated accordingly. The Purchase of Real Property (NSW) and 1001 Conveyancing Answers (NSW) guides contain detailed coverage of transfer duty concessions and government grants for the purchase of real property.

Employment Law – FED

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The By Lawyers Employment Law guide has been updated for the latest legislative amendments.

From 1 July 2023 the maximum amount that can be ordered under the civil remedy provisions of the Fair Work Act in small claims proceedings increased from $20,000 to $100,000.

Failure to pay wages and entitlements can give rise to civil remedies for contravention of statutory obligations. Chapter 4 – Part 4.1 of the Fair Work Act 2009 deals with civil remedies.

An offending employer can be ordered to pay a pecuniary penalty on top of the wages and contractual or statutory entitlements unpaid or underpaid, plus interest up to judgment.

Division 3 of Part 4.1 provides that applications for most contraventions of civil remedy provisions under the Fair Work Act, although not pecuniary penalty orders, may be dealt with as small claims proceedings in a state magistrates court or the Federal Circuit and Family Court of Australia (Division 2), with awards limited to $100,000 or any higher amount prescribed by the regulations.

The section on Underpaid and unpaid wages and entitlements in the By Lawyers Employment Law commentary has been updated accordingly.

These amendments are under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 which makes numerous changes to the Fair Work Act 2009. These amendments commence in phases over the course of several years and include:

  • expansion of the objects of the Fair Work Act;
  • equal pay provisions to address gender inequality;
  • prohibition of pay secrecy – designed to augment the equal pay provisions;
  • prohibition of sexual harassment in the workplace, including Stop Sexual Harassment Orders via the Fair Work Commission. These provisions commenced on 6 March 2023 – see our previous News & Updates post;
  • additional grounds for anti-discrimination in the workplace;
  • fixed-term contracts are generally no longer permitted;
  • expanded availability of flexible work arrangements.

See our previous News & Updates post for further details.

The By Lawyers Employment Law guide and 101 Employment Law Answers will be updated as these relevant provisions commence.

Unoccupied land – NSW

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The period for which unoccupied land in New South Wales may be treated as a person’s principal place of residence for land tax purposes has been extended.

The Revenue Legislation Amendment Act 2023 (NSW) commenced on 1 July 2023. The Act permits the Chief Commissioner of Taxation to extend from four tax years to six tax years the maximum period during which unoccupied land may deemed a person’s principal place of residence.

The Chief Commissioner’s discretion is enlivened if they are satisfied that delays in completing building or other work has rendered the land uninhabitable. Any such delays must also have been due to circumstances outside the control of the property owner that they could not have reasonably avoided.

The Act is intended to ensure that owners who faced building and construction delays due to the exceptional circumstances during the COVID-19 pandemic, or the recent bushfires and floods, will not be penalised by being required to pay land tax on their still unoccupied land. Any four-tax year period that ended on or after 31 December 2019 may be extended to six years, at the Chief Commissioner’s discretion. Any property owner granted an extension will have up to six tax years in total to complete their building or renovation work, and to occupy the property as a principal place of residence, before land tax is charged.

The By Lawyers New South Wales conveyancing publications have been updated accordingly. The Purchase of Real Property (NSW), Sale of Real Property (NSW), and 1001 Conveyancing Answers (NSW) guides include extensive sections of commentary on land tax and land tax exemptions.

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