ByLawyers News and Updates

Family law rules – FED

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Changes to the family law rules from 28 November include the abolition of the need to file a parenting or financial questionnaire with an initiating application. Parties now only file a questionnaire if they have not filed an affidavit with their application or response.

Other amendments to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 include:

  • Rule 1.09: Changing the form for seeking rescission of a divorce order from an Application for Review to an Application in a Proceeding;
  • Rule 2.01: Requiring that an application must concisely state the orders sought;
  • Part 2.6: Making the rules on service of documents in Australia apply to service generally;
  • Part 5.6: Inserting new rules 5.28 and 5.29 requiring that the Annexure to Proposed Consent Parenting Orders be attached to an application for interim parenting orders proposed to be made in chambers, as was already required for final orders;
  • Rule 5.28 and rule 10.04: Allowing draft consent orders to be signed by a party’s legal representative;
  • Rule 6.06 and rule 8.09: Removing the requirement to file parenting or financial questionnaires with an initiating application if the party has filed an affidavit;
  • Rule 7.35: Providing for the court to accept the opinion of a court-appointed assessor unless there are exceptional circumstances; and
  • Rule 14.07: Allowing the court to consider an Application for Review in chambers if the parties consent, and requiring parties to seek leave for any further evidence to be filed in support of an Application for Review.

Amendments to the costs schedule in the rules commence on 1 January 2023.

Amendments have also been made to the delegations table in Schedule 4 to the Rules, with effect from 28 November 2022.

The amended delegations increase the powers of Senior Judicial Registrars and Judicial Registrars in dealing with aspects of case management, including allowing the registrars to:

  • deal with an application for an interlocutory consent order under the new part 5.6 of the Rules;
  • apply on a limited basis the court’s power under s 69ZR of the Family Law Act 1975 to make a finding of fact, determine a matter, or make an order in relation to an issue arising, at any time before final orders are made in child-related proceedings;
  • order a party to undergo drug or alcohol screening or testing;
  • make spousal or de facto maintenance orders on a limited basis;
  • make an order for child maintenance – Senior Judicial Registrars only;
  • make an injunction under s 114 against a third party – Senior Judicial Registrars only;
  • make orders in relation to costs, costs estimates, and assessment of costs under s 117;
  • grant leave to institute proceedings out of time – Senior Judicial Registrars only;
  • grant leave for joinder of a party to a proceeding after the first court date;
  • issue a subpoena, order the production and inspection of documents, and hear subpoena objections;
  • summarily dismiss an application that has no reasonable prospects of success;
  • make summary orders in response to a claim by a party that an application or response is frivolous, vexatious, or an abuse of process, or that an application has no reasonable likelihood of success;
  • make certain case management orders or directions under r 10.11;
  • make orders varying or setting aside orders under the slip rule if the original orders were made by a Senior Judicial Registrar or Judicial Registrar;
  • make declarations regarding the costs of a child, and amend administrative assessments that are more than 18 months old under the Child Support (Assessment) Act 1989; and
  • grant a stay under s 111C of the Child Support (Registration and Collection) Act 1988.

Lighthouse project expands – FED

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From 28 November the Federal Circuit and Family Court of Australia’s Lighthouse Project expands to include all major registries. This follows additional funding provided in the recent federal budget.

The Lighthouse Project is a family-violence and risk-screening initiative for parenting and parenting/financial matters. The legislative framework was provided by the Family Law Amendment (Risk Screening Protections) Act 2020.

The project was initially available in the Adelaide, Brisbane, and Parramatta registries. It now expands to include Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Rockhampton, Sydney, Townsville, and Wollongong registries.

The Lighthouse Project’s key points are:

  • early risk screening through a secure online platform;
  • early identification and management of safety concerns; and
  • assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management.

All cases identified as high-risk following the screening process are referred to a dedicated list in the court, known as the Evatt List. This is a judge-managed list that focuses on early information gathering and intervention through a dedicated support team in appropriate cases.

When commencing or responding to proceedings in the applicable registries, parties will be asked to provide an email and mobile number to enable risk screening. Parties will then receive an email with a secure link and login details to complete the risk screening process.

See the FCFCOA’s Lighthouse expansion – General fact sheet for more information.

The By Lawyers Family Law Children guide has information on The Lighthouse Project under Pre-action procedures in the commentary.

Practitioners are also reminded of the related information on family violence and cross-examination of parties in the Going to court folders, and the separate By Lawyers guides covering apprehended violence, intervention, and restraining orders for family and personal violence under various state laws.

Central Practice Direction – FED

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The Central Practice Direction: Family Law Case Management outlines the core principles applicable to family law proceedings and establishes a consistent national case management system in the Federal Circuit and Family Court of Australia.

The practice direction requires that before filing an Initiating Application or a Response to an Initiating Application, lawyers give their clients a copy of the practice direction. There is a brochure on the matter plans in the By Lawyers family law publications, being a convenient PDF version of the practice direction, for this purpose.

A new precedent letter to the client has been added to the matter plans, enclosing the brochure and summarising its key points. This assists the practitioner to both comply with their obligations and explain the importance of the practice direction to their clients.

The Central Practice Direction incorporates the overarching purpose, enshrined in the Federal Circuit and Family Court of Australia Act 2021 under which the court was created, to facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible.

The ten core principles by which the overarching purpose is to be achieved are in summary:

  1. assessment of risk to vulnerable parties;
  2. rapid and inexpensive agreements;
  3. efficient use of the court’s resources;
  4. effective case management;
  5. active dispute resolution;
  6. adverse consequences for non-compliance;
  7. costs obligations;
  8. full disclosure between parties of all relevant information and focus on the real issues;
  9. hearing preparation; and
  10. resolution or determination of all cases promptly.

Following the principles, the Central Practice Direction makes it clear that the court expects parties and their lawyers to always:

  • minimise costs;
  • promptly give full and frank disclosure of information;
  • communicate productively; and
  • identify and seek to resolve the issues genuinely in dispute.

The Practice Direction prohibits aggressive and unnecessarily adversarial conduct. The safety of parties and children is a priority. Parties are not required to put themselves or their children at risk or compromise if they feel unsafe or believe abuse or violence affects their ability to negotiate fair or reasonable outcomes. The interests of children are always the court’s paramount concern.

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:

  • Conveyancing and Property;
  • Business and Franchise;
  • Criminal;
  • Litigation;
  • Estates;
  • Injuries; and
  • Employment.

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 and Updates posts dealing with those updates.

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

Comparative CPD requirements

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In all states and territories of Australia legal practitioners are required, as a condition of their practising certificates, to participate in compulsory professional development and training. Although the requirements are reasonably uniform, the terminology differs. In some states the requirement is known as Continuing Legal Education (CLE), or Mandatory Continuing Legal Education (MCLE). In others it is known as Compulsory Professional Development (CPD). There are also different requirements for barristers and solicitors.

For consistency, Continuing Professional Development (CPD) is used in this guide.

In each jurisdiction, the relevant one-year period begins on 1 April and ends on 31 March.

The CPD requirements in each state and territory are summarised below:

AUSTRALIAN CAPITAL TERRITORY

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Core Areas

A minimum of one CPD unit from each of the following areas:

  • Legal ethics and professional responsibility;
  • Practice management and business skills;
  • Professional skills; and
  • Substantive law and procedural law.

Section 47 of the Legal Profession Act 2006 (ACT) and the Law Society of the ACT CPD Guidelines.

NEW SOUTH WALES

Annual Mandatory Continuing Professional Development = 10 units

Compulsory Fields

A minimum of one unit per year from each of the following fields:

  • Ethics and Professional Responsibility;
  • Practice Management and Business Skills;
  • Professional Skills; and
  • Substantive Law.

Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 and s 52 of the Legal Profession Uniform Law (NSW).

NORTHERN TERRITORY

Annual Mandatory Continuing Professional Development (CPD) = 10 points

Core Competencies

A minimum of one point per year from each of the following mandatory competency areas:

  • Ethics and professional responsibility;
  • Practice management and business skills; and
  • Professional Skills in legal practice.

Schedule 2 of the Legal Profession Regulations 2007.

QUEENSLAND

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Mandatory Core areas

A minimum of one unit per year in each of the following mandatory core areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills.

Part 6 of the Queensland Law Society Administration Rule 2005.

SOUTH AUSTRALIA

Annual Mandatory Continuing Professional Development (MCPD) = 10 units

Required Areas

A minimum of one unit per year from each of the following required areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills.

Legal Practitioners Education and Admission Council Rules 2018.

TASMANIA

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Mandatory Core Competency Areas

A minimum of one unit per year from each of the following mandatory competency areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills; and
  • Substantive law.

Law Society of Tasmania’s Practice Guideline 4 – Continuing Professional Development Scheme and s 56 of the Legal Profession Act 2007.

VICTORIA

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Compulsory Fields

A minimum of one unit per year from each of the following compulsory fields:

  • Ethics and Professional Responsibility;
  • Professional Skills;
  • Substantive Law; and
  • Practice Management and Business Skills.

Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 and s 52 Legal Profession Uniform Law.

WESTERN AUSTRALIA

Annual Mandatory Continuing Professional Development (CPD) = 10 points

Mandatory Competency Areas

A minimum of one point per year from each of the following mandatory competency areas:

  • Practice management;
  • Professional skills;
  • Ethics and professional responsibility; and
  • Substantive law.

Legal Profession Act 2008, Legal Profession Rules 2009 and Legal Profession Regulations 2009.

Summary of continuing professional development activities

CPD Activity Activity format Formula
Max CPD Maximum number of CPD units that can be completed in a day.

  • TAS maximum = 6.
 N/A
Attendance Course, seminar, workshop, lecture, conference, discussion group, multimedia or web-based program.

  • TAS maximum = 3
  • WA maximum = 6
  • All other Jurisdictions = No limit.
 1 Hour = 1 CPD
Study Private study of audio/visual material recording of an event that occurred in the CPD year.

  • NT maximum = 5
  • QLD, VIC, ACT = No limit.
 1 Hour = 1 CPD
View View or listen multimedia or web-based program.

  • ACT – No limit
  • NT maximum =5
  • SA maximum = 5
  • TAS maximum = 5
  • WA maximum = 4.
 1 Hour = 1 CPD
Private Private study of audio/visual material update solicitor’s knowledge and skills.

  • ACT – No limit
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • VIC maximum = 5.
 1 Hour = 1 CPD
Research Research, preparation or editing of a legal article.

  • ACT maximum = 5
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =5
  • TAS maximum = 3
  • VIC maximum = 5
  • WA maximum = 5.
 1,000 words = 1 CPD
Activity preparation Preparation of CPD activities.

  • ACT maximum = 5
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =4
  • TAS maximum = 4
  • VIC maximum = 5.
 1 Hour = 1 CPD
Presenting. Presentation of a CPD activity.

  • ACT maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =4
  • VIC maximum = 5.
 1 Hour = 1 CPD
Present WA Presentation of a CPD activity and commentator.

  • WA maximum = 6.
 1 hour – 2 CPD
Membership actives Membership of legal committee, taskforce or practice section of a law association or similar body.

  • ACT maximum = 3
  • NSW maximum = 3
  • NT maximum =3
  • QLD maximum = 3
  • SA maximum =5
  • TAS maximum = 3
  • VIC maximum = 3.
 2 hours = 1 CPD
Graduate study Post graduate study.

  • NT maximum = 5
  • TAS maximum =5.
 1 Hour = 1 CPD
Specialist Completion of a specialist accreditation program. 10 points incl compulsory
Practice Management Completion of practice management course. 10 points incl compulsory

Adverse action – FED

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The recent employment law case of Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 considered adverse action under the Fair Work Act 2009 and the obligation on an employer to establish that a decision affecting a worker is not contrary to the prohibitions in the Act.

Adverse action is covered in the By Lawyers Employment Law guide.

Sections 340 to 345 of the Fair Work Act prevent an employer from taking adverse action, as defined in s 342, against an employee who exercises a workplace right, defined in s 341.

For example, if an employee is dismissed, which constitutes adverse action being taken against them, because they made a complaint against their employer, which constitutes their exercise of a workplace right, then the employee may be able to bring a general protections claim against the employer.

In the recent case Qantas made a decision, while its fleet was grounded for the pandemic, to outsource ground handling operations at Australian airports. That resulted in Qantas employees losing their jobs to external providers. The union sought reinstatement of the employees on the basis that Qantas’ decision constituted adverse action on a number of bases. Qantas denied this and argued that the decision was made for operational business reasons.

The court found for the employees on one of the adverse action grounds, namely that the real reason for Qantas’ action in standing down employees was to prevent the exercise of a workplace right, being their right to negotiate a new Enterprise Bargaining Agreement which fell due shortly afterwards. Interestingly, that meant the court upheld the adverse action claim on the basis of a workplace right that did not exist at the time of the decision, but may exist at some future point in time.

The court looked in detail at how the decision was made, what the company took into account, and its knowledge of the future workplace right. The court found that Qantas knew it was circumventing the future right, whereas if it had no such knowledge the outcome may have been different.

The case may go on appeal, but it serves to remind workers of the robust nature of their rights under the Act and employers of the extent of their obligations.

This case will be added to the By Lawyers 101 Employment Law Answers publication and any developments on any appeal will be monitored.

Franchise disclosure – FED

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New franchise disclosure requirements apply from 1 April 2022.

A free online franchise disclosure register has been established. The new Part 5A to the Franchising Code of Conduct requires franchisors to upload key franchise systems data. This is intended to allow prospective franchisees to make more informed decisions.

Franchisors have until 14 November 2022 to supply the information. The particulars the franchisor is required to disclose include:

The obligation for franchise disclosure is ongoing. Franchisors must annually publish updated disclosure documents within four months of the end of their financial year.

Franchise disclosure data must be uploaded for at least 14 days before a franchisor can enter into a franchise agreement. Fines of up to 600 penalty units apply for non-compliance.

The By Lawyers commentary on Franchises has been updated. This useful resource can found in the Reference materials folder on the matter plans for both the Sale and Purchase of Business. This includes updated links to the new regulation clauses.

Letter of offer – FED

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Two new Letter of offer precedents have been added to the By Lawyers Employment Law guide.

Letters of offer can be used to create an employment relationship between employer and employee when a full employment agreement is not required. These precedent letters set out the terms and conditions upon which the employment position is offered. The use of an optional schedule allows greater detail of the position description and the employee’s duties and responsibilities to be added if it is considered necessary.

The employee signs and returns a copy of the letter to confirm their acceptance of the position and the terms of employment.

One of the new precedents is for general use, the other is specific to employing apprentices.

The apprentice version extends the employee’s responsibilities to attending and undertaking the necessary training for completion of their apprenticeship. It also includes reference to the relevant requirements such as:

  • training contracts with an Australian Apprenticeship Support Network Provider;
  • specific state-based apprentice training legislation;
  • registered training organisations, such as TAFE;
  • training plans;
  • training records.

The apprentice version of the precedent also provides for the employee’s employment to terminate upon completion, cessation or transfer of the apprenticeship.

These new precedents Letter of offer and Letter of offer for an apprentice have been added to the matter plan in the Acting for Employer sub-folder under Folder B. Employment agreements.

By Lawyers comprehensive employment agreement precedents are also available in Folder B. for use when clients require a more detailed and flexible document. These precedents include:

  • Standard individual employment agreement;
  • Casual employment agreement; and
  • Executive employment agreement.

The new precedents have been added by our employment law author following a subscriber request. By Lawyers loves to receive feedback from our users – don’t hesitate to contact us if there are precedents you need.

Meetings and documents – FED

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COVID-related changes which affected the way companies deal with meetings and documents have been made permanent.

Companies and registered management investment schemes are now permanently able to use technology to hold meetings and execute documents under the Corporations Act 2001.

The Corporations Amendment (Meeting and Documents) Act 2022 makes permanent the previous COVID-related changes in the Treasury Laws Amendment (2021 Measures No. 1) Act 2021.

Meetings

A company can choose to hold a meeting:

  • in one or more physical locations;
  • as a hybrid at one or more physical locations and using technology;
  • virtually, if expressly permitted by the company’s constitution.

Members are to be provided with a reasonable opportunity to participate in meetings s 249S. Appropriate notice and provision of sufficient technology for members to participate and vote is required.

Documents

At least once each financial year members may elect to receive documents either electronically or in paper form. A member can request not to be sent any document prescribed in the regulations. The company is required to make notices available on a website and take reasonable steps to provide the member with any requested documents.

The following documents may be provided by the company in electronic or physical form:

  • notices of meetings;
  • resolutions;
  • matters to be considered at a meeting; and
  • minute books.

Execution

Corporate documents can be signed and executed electronically, with company signatories no longer required to sign the document in the presence of a witness physically.

A copy or counterpart of the document can be signed instead of the original therefore split execution is permitted.

Where there is a sole director, but no company secretary, a document is validly executed if:

  • the sole director signs the document; or
  • the sole director witnesses the fixing of the seal.

Where the new rules are followed people dealing with companies are entitled to assume that a document is validly executed.

The permanent changes apply to documents sent and meetings held on or after 1 April 2022.

The By Lawyers Companies guide has been updated to reflect these changes in the way companies may deal with meetings and documents.

Employee or independent contractor – FED

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A new section Employee or independent contractor has been added to 101 Employment Law Answers summarising and providing links to these important recent cases:

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; and

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

These appeals from the full Court of the Federal Court both turned on the question of determining the workers’ status as employee or independent contractor and were heard together. The High Court held that where parties have comprehensively committed the terms of their relationship to a written contract, which is not challenged as a sham or otherwise ineffective under general law, the characterisation of the relationship as one of employment, or otherwise must proceed by reference to the rights and obligations of the parties under that contract.

Only where there is no written agreement, or the agreement is ineffective, will the traditional multi-factorial test be required to determine the nature and conditions of the parties relationship.

Whether a worker is an employee or independent contractor is important for a number reasons including:

  • vicarious liability – which generally extends to employees but not independent contractors;
  • workers compensation insurance – who is covered and who is responsible for obtaining it;
  • superannuation guarantee payments – whether they apply;
  • unfair dismissal claims – whether a worker has recourse;
  • taxation responsibilities – including whether PAYG tax is required to be deducted from worker payments;
  • long service leave and other leave entitlements – whether they apply;
  • availability of remedies for workers; and
  • the jurisdiction of tribunals.

See 101 Employment Law Answers in the Reference materials folder on the Employment Law matter plan, and the Employment Law commentary for more information.

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