ByLawyers News and Updates

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.

ACT – Wills – Complete publication including Wills commentary and new precedents

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We have had a Wills publication in the ACT for some time, but up until now it has been just the basics.

Our Wills ACT publication now has a comprehensive commentary to accompany the matter plan, with custom ACT precedents such as retainer instructions.

This is a good opportunity to introduce our ACT author, Doug Dawson. Before joining the By Lawyers team, Doug practiced law in the ACT across a broad range of areas.

The Powers of Attorney, Appointment of Guardians and Managers and Advance Care Planning ACT publication will follow shortly.

 

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.

VIC Criminal – Proposed bail reform

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A summary of the proposed amendments to the Bail Act 1977 has been added to the Commentary in the Criminal Magistrates’ Court (VIC) Guide.

The cumulative effect of these amendments is a significant overhaul of bail procedure in Victoria. They may or may not achieve their objectives, but regardless the impact is potentially significant.

The commentary will be updated when the legislation commences.

The first stage of these amendments is expected to commence 1 July 2018 with the second stage likely to commence later in the year.

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)

Wills retainer instructions – All states – Burial, cremation and medical research details

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Retainer instructions in all states – for individuals and couples – have been enhanced with the addition of burial, cremation and medical research client details.

For instance, does the client wish to:

  • detail funeral service arrangements;
  • detail wishes regarding burial or cremation of their remains; or
  • make provision for ongoing cemetery or crematorium fees?

VIC – Powers and Advance Care Directives – Precedent coding – New table types

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The Medical Treatment Planning and Decisions Act 2016 came into effect on 12 March 2018 and our Powers and Advance Care Directive publication was updated accordingly.

New precedents reflecting those changes were added:

  • Advance care directive and corresponding revocation form;
  • Appointment of medical treatment decision maker and corresponding resignation and revocation forms;
  • Appointment of support person and corresponding resignation and revocation forms.

These precedents have now been coded with the new table types – Medical Decision Maker and Support Person. You will need to add these table types to existing matters for your forms to populate.

Customising precedents – Importance of routinely comparing to original

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By Lawyers precedents can be customised by duplicating the original precedent and saving the duplicated precedent after the desired changes have been made. It is important however that if a precedent letter is being customised, changes are made only within the ‘body bookmark’.

Identifying which precedents have been customised is easy, as they will be coloured purple under the ‘Browse’ tab in the ‘Guides and Precedents’ window. While we encourage all users to access our content from the ‘Legal Guides’ tab, customised precedents are only shown in the Browse tab, so the use of this tab is necessary to view your customised precedents.

It is also important to remember that duplicated precedents will no longer automatically receive the usual updates from By Lawyers. It is therefore a good idea to routinely compare all duplicated precedents to the original By Lawyers version, to ensure that they remain up to date and correct.

EMPLOYMENT – Tuition reimbursement on termination

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Employers typically deduct from termination monies when an employee terminates after receiving recent employer-funded tuition. Deductions from monies owed is regulated by the Fair Work Act and employers should tread carefully.

Under the Act, employers are required to pay their employees all amounts owing to them in relation to the performance of their work in full. This includes wages, bonuses, loadings, allowances, overtime and leave payments. …

The Act allows for some deductions to be made by employers, but only in four limited circumstances, one being where the deduction is authorised by the employee in writing, and it is principally for the employee’s benefit …

In some cases, deductions for employer paid training courses can be lawful authorised deductions. It will depend on the circumstances of the case but as a general statement, deductions for training course fees are more likely to be considered lawful if the severance of the employee concerned occurs within a short time following the payment of the fee, for example, 6 months or 12 months. Each situation will turn on its facts.

The Standard Individual Employment Agreement and the Executive Employment Agreement precedents have been updated with a clause relating to Refund of tuition expenses by the employee.

 

 

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