ByLawyers News and Updates

Federal Circuit and Family Court of Australia – FED

by

The Federal Circuit and Family Court of Australia (FCFCOA) commences operation on 1 September 2021.

The FCFCOA is an amalgamation of the former Family Court of Australia and Federal Circuit Court of Australia.

The new court has two divisions:

  • Division 1 is a superior court of record that includes the judges from the former Family Court. It deals with the most complex matters and exercises appellate jurisdiction.
  • Division 2 is a court of record that includes the judges from the former Federal Circuit Court, which is the single point of entry for all family law and child support matters.

There is a common set of forms and rules across the two divisions. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules 2021) apply in all family law matters, except in Western Australia where the Family Court Rules 2021 (WA) apply. Western Australia also has its own dedicated portal – the eCourts Portal of Western Australia.

They provide for the practice and procedure in both divisions of the FCFCOA except for a few matters such as transfer from Division 2 to Division 1 as set out in the Family Law Rules 2021.

The new court’s website is available: www.fcfcoa.gov.au.

A practice direction deals with Transitional arrangements.

Division 2 of the new court also has a general federal law jurisdiction, like the former Federal Circuit Court.

All By Lawyers Family law publications – Children, Divorce, Financial Agreements, and Property Settlement – are being updated for the commencement of the new court. This includes a full review of the:

  • commentaries, for the new terminology, procedures and hyperlinks to the new rules;
  • matter plans, with a single Going to court folder reflecting the new process; and
  • precedents, to incorporate all necessary changes.

There is a 90 day grace period for using the old forms in the new court. The new court forms will be added to the By Lawyers matter plans as they become available.

By Lawyers always keep our subscribers up to date!

COVID measures for companies – FED

by

COVID measures for companies have been further extended. These temporary measures are currently set to expire on 31 March 2022.

Company execution

The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (‘the 2021 measures’) commenced on 13 August 2021. They extend and expand on the measures previously introduced in 2020.

A company can execute a document electronically under s 127 of the Corporations Act 2001. Signatories can sign separate counterpart copies.

The method used must:

  • be appropriate in the circumstances,
  • identify the person in the electronic communication, and
  • indicate the person’s intention in respect of the contents of the document.

The measures also allow for alternatives to execution normally requiring a common seal.

Company meetings

The 2021 measures also extend and expand on the previous COVID measures for companies holding meetings. They modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or allow a meeting to be held, or that regulate giving notice of a meeting, or the conduct of a meeting. The provisions include:

  • a meeting can be held using one or more platforms such as Zoom, Skype or Microsoft Teams;
  • all persons participating electronically are taken for all purposes, including quorum requirements, to be ‘present’ at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using technology to give each person entitled to vote the opportunity to participate in the vote in real time or in advance;
  • persons attending the meeting to speak, such as asking questions, can do so using technology;
  • a proxy may be appointed using technology specified in the notice of the meeting; and
  • notice of a meeting may be given by using technologies. For example, a company could send members an email attaching a notice of a meeting and other material, or provide a link to the notice and the other material for viewing or download.

The By Lawyers Dealing with COVID-19 legal issues – Some practical information publication has been updated accordingly. This helpful summary guide to COVID measures in all states is available at the top of all By Lawyers matter plans.

New rules for IVOs – VIC

by

There are new rules for IVOs in the Magistrates’ Court. The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 commenced on 29 August 2021.

Intervention orders are made in the Magistrates’ Court under either the Family Violence Protection Act 2008 or the Personal Safety Intervention Orders Act 2010.

The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 and the Magistrates’ Court (Family Violence Protection) Rules 2018 provide for the practice and procedure in all proceedings under the respective Acts, including service, orders, subpoenas, affidavits and hearings. The two sets of rules are largely uniform and therefore procedure under both Acts is essentially the same.

The new rules for IVOs revoke and replace these previous rules:

  • Magistrates’ Court (Family Violence Protection) Rules 2008;
  • Magistrates’ Court (Family Violence Protection Rules) (Amendment No. 1) Rules 2011;
  • Magistrates’ Court (Vexatious Proceedings Amendments) Rules 2014;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2017;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2018.

The By Lawyers Intervention orders commentary has been updated with links to the new rules. The specialist Intervention orders guide is part of the Criminal – Magistrates Court publication.

Enforcement – VIC

by

The By Lawyers Enforcement (VIC)  guide has been extensively reviewed. It provides practitioners with a wealth of practical information on the options available to recover judgment debts.

Three new precedents have been added to the matter plan and the commentary has been revised and updated.

New precedents

  • Example content – Affidavit in support of application for charging order summons. A judgment or order for the payment of a sum of money may be enforced by obtaining a charging order from the Supreme or County courts. This creates an equitable charge over stocks and shares, or any funds in court in which the judgment debtor has a beneficial interest.
  • Example content – Affidavit in support of application for garnishee summons.
  • Example content – Affidavit in support of application for warrant for seizure or sale or for possession of land.

Commentary enhancements

  • New commentary on stop orders, which prevent funds in court being paid out without notice being given to the person who applied for the order.
  • New commentary on the proper use of bankruptcy procedures, which should not be used for the purpose of putting pressure on a debtor to pay the debt.
  • Enhanced commentary on conduct money, the need for it to be sufficient and outlining some practical considerations.
  • Expanded commentary on post-examination procedures, including examination of the debtor on ‘the material questions’ in the  Supreme or County courts.
  • Further commentary on the instalment order process, including attachment of earnings, and the reluctance of the courts to make orders that will force the debtor into extreme hardship or to live a life of deprivation.
  • Expanded commentary on garnishee orders.
  • Expanded commentary on warrants of seizure and the sale of property – goods and land.
  • Enhanced commentary highlighting the difficulties and reality of enforcing judgment debts and managing client expectations, providing practical guidance on securing the best outcome for the client.

The Enforcement guide review, undertaken by our Victorian litigation author Nawaar Hassan, reflects the commitment of By Lawyers to updating and enhancing our publications.

Immigration status – Divorce – FED

by

A new section ‘Immigration status’ has been added to the Divorce section of the By Lawyers reference manual 101 Family Law Answers.

This new section provides guidance on establishing whether a party is ‘habitually resident’ in Australia when both the applicant and the respondent hold a temporary visa.

Section 39(3) of the Family Law Act 1975 provides that for the court to have jurisdiction to grant a divorce order, either the applicant or the respondent must be:

  1. an Australian citizen;
  2. a person domiciled in Australia; or
  3. ordinarily resident in Australia for one year immediately preceding the filing date.

Section 4(1) of the Family Law Act 1975 provides that ‘ordinarily resident’ includes ‘habitually resident’.

If both the applicant and the respondent hold a temporary visa, and either has been living in Australia for 12 months, the next step is to establish whether they are habitually resident. The applicant or respondent will need to establish they have settled, or intend to settle, in Australia by providing evidence of accommodation, employment and other community connections. The type of visa currently held and an intention to apply for permanent residency will also be relevant.

The claim to habitual residence is best addressed in an affidavit in support of the divorce application. This will avoid the application being adjourned or listed for submissions on the residency issue.

101 Family Law Answers provides practitioners with valuable information on the more unusual and detailed aspects of family law and includes many helpful links to cases and legislation. It can be found in the Reference Materials folder on all of the matter plans in the Family Law publication.

For more information on temporary visas, see the By Lawyers Immigration publication.

 

New family law court – FED

by

The new family law court, the Federal Circuit and Family Court of Australia (FCFCOA), commences 1 September 2021.

The FCFCOA will have 2 divisions. Essentially Division 1 replaces the existing Family Court and Division 2 replaces the existing family law functions of the Federal Circuit Court. There will be a single point of entry to the new family law court through Division 2.

Summary of the changes

  • There will be harmonised rules, new practice directions, updated forms and one website.
  • The new court’s website will be launched on 1 September 2021 with simplified access and navigation.
  • All forms will be updated. An Application in a Case will become an Application in a Proceeding.
  • Transitional arrangements will allow for the use of new forms, with a 90 day grace period for old forms.
  • Existing matters will generally remain in the existing courts, unless the parties are advised otherwise.
  • Division 2 will have a general federal law jurisdiction similar to that of the Federal Circuit Court currently.
  • Division 1 will have jurisdiction to hear family law appeals and there will be a single national appeals filing registry.
  • A National Contravention List will be introduced and a practice direction will accompany the commencement of the list.
  • The new court will have Senior Judicial Registrars, Judicial Registrars, and Deputy Registrars. While the titles change, their powers and roles will be the same as existing Registrars.
  • Child Disputes Services will be known as the Court Children’s Service. Family Consultants will be known as Court Child Experts.
  • Parties in children’s matters will receive assistance earlier, with a greater emphasis on expert guidance.

Updates for the FCFCOA commencement on 1 September 2021

All By Lawyers Family law guides – Children, Divorce, Financial Agreements, and Property Settlement – will be updated to reflect the commencement of the new court. This will include a full review of the:

  • commentaries for the new procedures and rules;
  • matter plans with a single Going to court section reflecting the new process;
  • forms – with all new forms on the matter plans; and
  • precedents, to incorporate the changes where necessary.

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

Employment law publication – FED

by

The Employment Law publication has been extensively reviewed and enhanced. This work is part of By Lawyers continual commitment to updating and enhancing our publications.

Key components of the Employment Law publication – the matter plan, commentary and 101 Employment Law Answers reference materials – have been re-organised and augmented.

Matter plan

The matter plan has been reordered to:

  • better reflect the distinction between matters relating to employment agreements and employment disputes;
  • separate the content – both commentary and precedents – on employment agreements and non-employment agreements, such as independent contractor agreements;
  • add a new dedicated folder for the important content on workplace bullying.

Commentary

Updates include the following:

  • Getting the matter underway – initial consideration of employment status;
  • Awards –  expanded discussion of applicability and effect of awards;
  • Coverage of The National Employment Standards (NES) and a link to the Fair Work Ombudsman’s new Small Business Employer Advisory Service;
  • The new provisions for casual conversion;
  • Other rights and entitlements – additional commentary on children in the workplace, overtime, vehicles, deductions, access to records and employers in liquidation;
  • Employment agreements – considerations for negotiating and documenting terms, with a link to the Commonwealth Government’s helpful Employment contract tool;
  • Termination of employment, including when it happens during workers compensation claims;
  • Redundancy – entitlement under the NES and the connection to unfair dismissal;
  • Unfair dismissal claims – coverage of all relevant considerations, including who is protected, the small business exception, high-income threshold, what the Fair Work Commission considers, the application and response, the claims procedure, conciliation, hearings and conferences, remedies and costs orders;
  • General protections claims – coverage of adverse action, discrimination, other protections and sham contracts; and
  • Dedicated commentary on unlawful termination claims.

The comprehensive History of legislative changes has been relocated to 101 Employment Law Answers. This will assist when the rights of a client need to be determined as at a certain prior date.

101 Employment Law Answers

This handy reference material has received a comprehensive revamp that is a precursor to a more detailed review. As with all By Lawyers reference materials 101 Employment Law Answers provides relevant and up-to-date case law summaries and links to legislation. It covers such topics as leave entitlements, the multi-indicia test, abandonment, non-solicitation, redundancy entitlement, and unfair dismissal.

Family law property dealings – FED

by

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

New personal injury guide – NSW

by

By Lawyers are pleased to announce the publication of a new personal injury guide: Personal injury – Acting for the defendant.

With a separate matter plan, commentary and precedents, the new guide is now available along with Personal injury – Acting for the plaintiff.

The new Personal injury – Acting for the defendant guide concentrates on the defence of negligence claims to which the provisions of the Civil Liability Act 2002 apply, while also covering the common law to some extent, with regard to intentional torts. It assists practitioners acting for defendants and insurers, in both un-litigated and litigated personal injury claims.

The commentary discusses all the relevant considerations and necessary steps to investigate and progress claims to resolution. Commentary sections include:

  • Duty of care, including general principles of liability, specific legislative provisions, obvious and inherent risks, mental harm, causation and contributory negligence.
  • Damages, with coverage of economic and non-economic loss, attendant care services and also exemplary, punitive and aggravated damages.
  • Responding to the claim, with guidance and practical tips for dealing with un-litigated claims, gathering factual evidence and obtaining expert opinion.
  • Settling it early, with helpful commentary on preparing for and attending mediations.
  • Going to court, including the procedure for responding to claims in either the District Court or the Supreme Court.

The guide also contains many helpful precedents, including:

  • Letters to various sources gathering information
  • Medical authorities
  • Example content for a mediation position paper for the defendant
  • Offers of compromise
  • Example content for pleadings and other documents
  • Letters to clients finalising the matter after settlement or hearing.

Practitioners using the By Lawyers personal injury publications will also benefit from the By Lawyers litigation publications: District Court – Civil and Supreme Court – Civil – Common Law Division.

Visa changes – FED

by

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.

Connect with us