Archive for the ‘Newsletters’ Category

Studying In Australia – All About Student Visas

Australia has long been a popular destination for international students seeking high-quality education and an exciting overseas experience. Studying in Australia can be a life-changing experience, and one of the key steps to achieving this goal is obtaining the right student visa. This article explores the eligibility requirements for student visas, the different types, the role of accompanying guardians, and restrictions on the right to work. The information is general in nature only, and we recommend obtaining professional advice relevant to your circumstances before taking any course of action.

Eligibility Requirements

Most importantly, to obtain a student visa in Australia, you must genuinely intend to only stay in Australia temporarily for the sole purpose of studying. This requirement is assessed based on your personal circumstances, immigration history, and the course you intend to study.

A primary piece of evidence of your genuine intention to study will be that you hold a confirmed offer of enrolment in a registered course at an Australian educational institution. You must also have the necessary proficiency to be able to study the course in the English language. You will usually demonstrate the capacity to study in English by taking tests like IELTS, TOEFL, or PTE Academic.

In addition, you must have the capacity to support yourself during your studies with only a minimal reliance on employment while in Australia. To do this you will need to demonstrate that you have sufficient funds to cover your tuition fees, living expenses, and travel costs for the duration of your course.

To demonstrate that you are currently (and will remain) healthy enough to study in Australia, you must also undergo health examinations and maintain Overseas Student Health Cover (OSHC) for the entire duration of your stay in Australia. OSHC provides health insurance that covers medical expenses.

To show that you do not pose a danger to the Australian community, you must also provide police clearance certificates from your home country and any country you have lived in for 12 months or more in the past ten years.

During your course of study, you are required to notify the Department of Home Affairs if any of your circumstances change, such as your address, contact details, or educational institution.

Accompanying a Student as a Guardian

If you want to accompany your child while they study in Australia, you can apply for a Student Guardian Visa (Subclass 590). To be eligible for this visa, you must be over 21 years, and be the parent or legal guardian of a student who is under 18 years of age. You also need to prove that you genuinely intend to stay in Australia only to provide support and care for your child.

As a guardian, you are responsible for the welfare and accommodation of the student. You can also study yourself for up to three months, but your primary role is to support your child’s educational and living needs. Therefore, you must be able to demonstrate that you have enough funds to cover your stay in Australia, as well as your child’s education and living costs.

The application process for the Student Guardian Visa is similar to that of the Student Visa. You will need to complete an application form, provide the required documents, and undergo health and character assessments.

Work Restrictions

Most international students are allowed to undertake some work while they are studying in Australia. This can be an important part of a student’s Australian experience, supplementing their financial resources and helping to further develop skills and English language proficiency. Most educational institutions offer a range of services to help international students find suitable employment opportunities, including job fairs, career counselling, and internships.

However, there are restrictions on the amount of work that international students can undertake while on student visas. It is essential to abide by work restrictions to avoid visa violations, which could lead to cancellation or refusal of future visa applications.

If you hold a Student Visa (subclass 500), you are generally allowed to work up to 48 hours per fortnight (every two weeks) during the academic year. You can also work unlimited hours during scheduled course breaks. However, you must not start working until your course has officially commenced.

If you hold a Temporary Graduate Visa (subclass 485), you are allowed to work without restriction in Australia for a specific period, depending on the highest education qualification you have completed. The Graduate Work stream permits you to work for a maximum of 18 months.

It is important to note that student guardians (subclass 590) are not permitted to work at all whilst in Australia, as their primary responsibility is to provide care and support for the student under their guardianship.

Conclusion

An overseas student can obtain a visa to travel to Australia to study a course at an Australian high school, university, technical college, or other professional training course. Key to achieving this goal is choosing the right student visa and preparing a valid application. While Australia’s immigration laws can be complex, an experienced immigration lawyer can help demystify the process and help you through each step of your student visa application. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Choosing the Right Executor for Your Will

Creating a Will protects your loved ones and ensures your wishes are followed after your death. One of the most important decisions in this process is choosing your executor, who will manage your affairs, pay your debts, and distribute your assets according to your Will. Because the role carries significant responsibility – both practical and legal – choosing the right person demands careful thought. This article explains what an executor does and offers guidance on making your choice. The information here is general and does not constitute legal advice; always seek professional advice tailored to your circumstances.​

What Does an Executor Do?

The executor’s job is to administer your estate (everything you own and owe) from the moment of your death until your assets are finally handed over to your beneficiaries. This role can be time-consuming with duties sometimes extending over a year, especially for larger or complex estates.​

Key responsibilities include:

  • Locating the most recent, valid Will.​
  • Arranging the funeral, if necessary (not always a legal duty but often performed by the executor).​
  • Applying for a Grant of Probate. Generally, for estates involving real estate or significant assets, the executor must apply to the Supreme Court for a Grant of Probate. This is the Court’s official recognition that the Will is valid and authorises the executor to deal with the assets.
  • Identifying, securing, and insuring all estate assets, such as bank accounts, property, and valuables.​
  • Valuing the estate and preparing a full inventory of assets and liabilities.​
  • Paying debts, including tax and funeral expenses, from estate funds before making any distributions.​
  • Resolving disputes among beneficiaries or responding to legal challenges to the Will.​
  • Distributing the remaining assets in strict accordance with the Will.​
  • Keeping accurate accounts and providing a final statement to beneficiaries.​

An executor must act honestly, diligently, and solely in the best interests of the estate and its beneficiaries, following all legal requirements and the terms of the Will.​

Who Can Be an Executor?

Any adult with legal capacity (“of sound mind”) may serve as an executor. There is no requirement for professional qualifications. Common choices are:​

  • Family members (such as a spouse, partner, or adult children), who often know you and your wishes best.​
  • Trusted friends, especially those who are organised and reliable.​
  • Professional executors: solicitors, accountants, or trustee companies (public or private), who bring expertise and impartiality. They will charge a fee, taken from the estate.​

An executor may also be a beneficiary, which is common in practice and perfectly lawful.​

Qualities to Look For

Given the scope of the executor’s responsibilities, capability matters as much as trust. Consider whether your candidate has:

  • Trustworthiness and integrity. Your executor will access and control all estate assets and financial records.​
  • Organisation and attention to detail. The role requires thorough paperwork and meeting statutory deadlines; delays or errors can be costly.​
  • Capability and willingness to serve. Your executor should be able to communicate effectively with third parties such as lawyers, banks, and the Australian Taxation Office, and they must agree to accept the role (renunciation is permitted if they decline after your death).​
  • Impartiality. If conflict is likely among beneficiaries, a neutral executor is crucial for fair administration.​
  • Age and health. Appoint someone likely to survive you and remain capable throughout the administration period.​

Practical Considerations: Sole v Joint Executors

When choosing an executor, you have a few structural options:

OptionDescriptionProsCons
Sole ExecutorOne person manages the estateSimple, clear responsibilityHeavy burden, risk if the executor is unwilling or predeceases you
Joint ExecutorsTwo or more act together (e.g., adult children)Shared workload, more skills, checks and balancesPotential for conflict, possible delays, and coordination, particularly if executors reside in different areas
Substitute ExecutorBackup if primary choice is unable or unwillingEssential safeguard, smooth transitionMust meet same standards as main executor

Note on joint executors: If appointing more than one person, ensure they can cooperate. Naming all children may seem fair, but strained relationships can cause gridlock or delays.​

When to Consider a Professional Executor

You might consider appointing a professional as your executor if:

  • Your estate includes complex assets (business interests, trusts, overseas property)
  • You anticipate possible disputes
  • You wish to spare family members from the administrative burden of your estate
  • Your intended executors are young, elderly, or unfamiliar with financial affairs​

Professional executors charge fees, but expertise may save the estate costs and risks in the long run.​

Final Step: Discuss Your Decision

Always talk to your chosen executor before making your Will. Ensure they are willing to act, explain where your documents are kept, and outline the likely complexity of your estate. Open communication helps prevent future surprises and ensures your intentions are understood.​

State Differences

Estate and probate procedures are governed by state law; exact processes vary between states and territories. All applications for probate and estate administration go through the Supreme Court in the relevant jurisdiction. Consult a lawyer familiar with the state’s requirements for the most accurate advice.​

This is general information only and not legal advice. For guidance tailored to your situation. Please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Family Law Changes: Property Settlements

Recent changes to the Family Law Act, predominantly focused on financial property settlements, are now operational. The amendments aim to make the process of dividing property fairer and more transparent, especially for those who have experienced family violence.

If you’re in the process of separating or working out how to divide property after a breakup, these laws may affect you. The following information is general only, and we recommend consulting an experienced family lawyer for advice tailored to your circumstances.

Additional Considerations in Property Proceedings

Family Violence

In addition to introducing a more structured approach to property division, the changes ensure that family violence is now specifically recognised as a factor to be considered by the court when making property orders.

According to the Family Law Act, family violence is “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family… or causes the family member to be fearful”. Economic abuse or financial abuse is explicitly recognised as a form of family violence. This might include:

  • controlling a party’s money or assets
  • sabotaging a party’s employment or income opportunities
  • forcing a party to take on financial or legal liabilities
  • unreasonably withholding financial support

When making property orders, the court will consider the economic effect of any family violence (if relevant) on a party’s ability to make financial and non-financial contributions to the welfare of the family. Additionally, the court will consider the economic effect of family violence on a party’s current and future circumstances.

The economic effect of family violence also forms part of the considerations when determining whether spousal maintenance should be ordered.

Wastage and Liabilities

The laws also introduce more clarity around how the courts should deal with the wastage of assets and liabilities. This aims to ensure that a party’s reckless or deliberate financial behaviour is taken into account when the property pool is divided.

When assessing current and future circumstances, the court will now specifically consider:

  • The effect of any material wastage of property or financial resources that was caused intentionally or recklessly by a party, for example, excessive gambling, extravagant spending, or deliberately giving away assets.
  • The nature of any liabilities incurred by a party, and the circumstances surrounding them. This may be relevant, for example, in situations where one partner has accumulated debt in the other’s name.

Housing Needs

When assessing current and future circumstances, the court will give additional consideration to the need for either party to provide appropriate housing for the care of children.

Pets Are No Longer Just “Property”

Previously, a family pet was treated simply as an item of property, like a car or a television. The amendments introduce a new legal category for “companion animals” and give the court the power to make specific orders about them.

While a court cannot order joint care or a shared arrangement for a pet, it can now take into account things like:

  • Any history of abuse or threats towards the animal.
  • The emotional bond between the pet and each party or any children.
  • The ability of each person to care for the pet in the future.

This change recognises the significant emotional role that pets play in many families and ensures that their welfare is a specific consideration in a separation.

Stronger Rules Around Financial Disclosure

The duty for separating couples to provide full and frank financial disclosure has always existed, but the changes advance this obligation. It’s now explicitly set out in the Family Law Act, rather than just in the court rules, with implications for parties who do not comply.

The court has more power to take non-compliance seriously and can impose stronger penalties for failing to disclose financial information. This is designed to ensure that both parties have a complete and accurate picture of the financial circumstances before a property settlement is finalised.

What the Changes Mean for You

If a party has been subjected to family violence, the court can now directly take its financial impact into account when making a property settlement order. These changes aim for a more transparent, fairer family law system. They are designed to address the realities of modern relationships and the complexities that can arise during a separation.

It’s important to remember that these changes apply to all new and existing financial and property matters that are before the court from 10 June 2025, unless a final hearing has already started. If you’re currently involved in a property settlement, these changes may impact your case.

Key Takeaways

  • Family violence is now a specific factor: The court must now consider the economic impact of family violence when dividing assets.
  • Financial behaviour matters: Reckless wastage of assets and the circumstances around liabilities are now explicit considerations.
  • Pets have their own section: Companion animals are no longer just treated as property; their welfare and emotional importance will be considered.
  • Disclosure is more important than ever: The duty of financial disclosure is now enshrined in the Family Law Act, with penalties for non-compliance.

If you or someone you know wants more information or needs help or advice. Please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

I was just having fun – rights and responsibilities at the office Christmas party

Work Christmas parties provide a great opportunity to mix with fellow colleagues and bosses, reflect on the year’s activities and get to know each other on a more personal level.

With each social function however, employers and employees have certain rights and responsibilities. Understanding these and working together should ensure everybody’s welfare is protected and avoid some of the pitfalls that can arise from poorly managed events. Issues can range from the embarrassment of having ‘one too many’ to serious claims of sexual harassment, bullying and discrimination.

So, while preparing to let your hair down for the end of year celebrations, it’s a good idea to brush up on some essential work function responsibilities so that your next event is not too eventful. This information is general only and you should obtain professional advice relevant to your circumstances.

Laying down the law

Despite a work function being held off work premises and out of normal working hours, workplace laws still apply and an employer’s duty of care for its employees remains as if they were at work.

Accordingly, without resorting to becoming the ‘fun police’, it is appropriate for employers to remind their employees about acceptable behaviour, codes of conduct, workplace and social media policies, responsible alcohol consumption and the prohibition of illicit drugs. This reminder should be in writing, issued before the event, and may accompany the invitation.

Employer’s liability

Employers may be liable to compensate an employee if, through a negligent act or omission, they fail in their duty of care to prevent injury and the person suffers harm. This liability extends to work functions and events.

Employers may also be vicariously responsible for the behaviour of their employees both in the workplace and at work functions. Vicarious liability is a type of secondary liability whereby a superior (employer) is responsible for the actions of a subordinate (employee).

An employer can therefore be liable for harm suffered by a worker (such as discrimination, harassment including sexual harassment, and bullying) due to the inappropriate conduct of an employee. The effects of too much alcohol or simply forgetting that the work function is deemed a workplace can often fuel behaviour leading to these issues.

Employee behaviour and misconduct

Employees who behave inappropriately at a work function not only reflect poorly on themselves and their employer but may risk losing their job. Although there are laws to protect employees from unfair and harsh dismissal, certain misconduct and serious misconduct can be grounds for formal disciplinary action and even termination.

Social media

Employees should ensure they comply with their work social media policy – just because it’s a party does not mean that posting inappropriate images and/or comments will not breach policy. Whether or not a social media policy is in place, the best advice is, if in doubt, don’t post.

Top tips for a smooth event

The following checklists for employers and employees may help keep everybody safe and ensure that your next event is enjoyable and runs smoothly for all.

Employers

  • Consider your employees’ religious and cultural beliefs, family and caring responsibilities, and travel requirements when planning, to foster an inclusive event.
  • Remind employees before the function that workplace policies and codes of conduct will apply, a breach of which may result in disciplinary action.
  • A mere reminder about workplace policies may be insufficient if employees do not have access to, nor training in, such policies.
  • Set specific starting and finishing times, reminding employees that a decision to ‘party-on’ after the event will not be condoned by the employer.
  • Ensure sufficient food, non-alcoholic beverages and water are available.
  • Liaise with function centre management to ensure that responsible service of alcohol rules will be upheld and that a key employer will be notified of any employee or guest in danger of excessive alcohol consumption.
  • Provide employees with access to safe transportation after the party and ensure that they start their journey home from the event safely.

Employees

  • Be respectful of others, their opinions and beliefs and conduct yourself appropriately. Try to avoid topics that are likely to become heated and, if discussions get too controversial, walk away and get on with enjoying the party.
  • Make sure you are familiar with company policies and codes of conduct.
  • Drink sensibly and eat well to slow alcohol absorption.
  • Look out for your colleagues and guests and ask for assistance if you believe somebody’s welfare might be compromised.
  • Don’t get drawn into office gossip or behaviour that may be perceived as offensive, lude or explicit.
  • Be mindful about social media – apart from checking on the children and calling a taxi to get home safely, why not just leave the mobile aside and get on with enjoying the night.

Conclusion

Well-planned end of year work celebrations can be rewarding and build morale within the workplace. By following some simple steps, employers and employees can help to ensure the party is inclusive and fun for everybody, while keeping professional and personal reputations intact and avoiding complications. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Suspended Licence? Applying for a Special Hardship or Work Licence in Queensland

Losing your driver’s licence can throw your life into complete disarray, especially if you rely on driving for your job, family responsibilities, or essential activities. In Queensland, there are special court applications that might allow you to keep driving under very specific, restricted conditions.

These special allowances are known as Special Hardship Orders or Restricted (Work) Licences. They are two distinct orders, used in different situations, and have strict rules about who can apply.

This article provides an overview of each type and the key steps involved in the application process. The information is general only and does not constitute legal advice. For assistance tailored to your circumstances, we recommend speaking to an experienced lawyer.

Summary of Key Differences

FeatureSpecial Hardship OrderRestricted (Work) Licence
Why is your licence suspended?High-speed offence (40km/h or more over the limit), or breaking a “good behaviour” demerit point limitA drink driving or drug driving offence (provided your BAC was under 0.15 and you weren’t driving under the influence)
When to Apply?Within 21 days of the licence suspension taking effectAt the time you are convicted by the court, before the Magistrate orders your disqualification
What can you drive for?Allows driving for specific reasons, which must be proven to the court. This could be for work or other severe hardship reasons (like medical appointments)Allows driving only for specific work purposes, including travel to and from work (if no other reasonable transport exists) and driving is required as part of your job
Required Licence TypeQueensland Provisional or Open LicenceQueensland Open Licence

1. Special Hardship Order

A Special Hardship Order is for drivers whose licence has been suspended due to:

  • A high-speed offence (driving more than 40km/h over the posted speed limit); or
  • Accumulating two or more demerit points while driving under a Good Driving Behaviour period (if you previously elected this option instead of an initial suspension).

Who is Eligible to Apply?

To be eligible, you must meet strict criteria, including:

  • You held a Queensland Provisional or Open Licence immediately before the suspension.
  • Your suspension is for one of the two reasons listed above.
  • You have not had your licence suspended, cancelled, or disqualified (with some exceptions) within the last five years.
  • You have not been convicted of dangerous driving within the last five years.

What You Must Prove to the Court

Eligibility alone is not enough; you must convince the Magistrate that the loss of your licence would cause:

  • Extreme hardship to you or your family by depriving you of your means of earning a living (i.e., losing your job); or
  • Severe and unusual hardship to you or your family for other reasons (e.g., being the only person available to drive a family member to regular, necessary medical treatment).

Simply needing the licence for convenience, or for basic tasks like grocery shopping or the school run, will generally not be enough to satisfy the court.

Key Application Steps for a Special Hardship Order

  • Act quickly: You must lodge your application with the Magistrates Court within 21 days of your licence suspension taking effect.
  • Gather evidence: You will need to prepare a detailed affidavit (a sworn statement) from yourself, and usually one from your employer (or other person whose life would be severely impacted), setting out all the facts to support your claim of hardship.
  • Lodge documents: File your application and supporting evidence at a Magistrates Court registry in your district. A court fee applies.
  • Notify Transport and Main Roads (TMR): Once your documents are accepted and stamped by the court, you must give a copy to TMR at least seven days before your court hearing. Your suspension is usually lifted until the day before the hearing, allowing you to drive once TMR has received the stamped copies.
  • Attend Court: You or your legal representative must attend the court hearing to speak to the Magistrate and ask for the Order to be granted.

2. Restricted (Work) Licence

A Restricted Licence is available for certain drivers facing disqualification for:

  • Driving with a blood alcohol concentration (BAC) between 0.05% and less than 0.15%.
  • Driving with a relevant drug present in your blood or saliva (but not driving under the influence of drugs).

Who is Eligible to Apply?

To be eligible for a Restricted (Work) Licence, you must meet several criteria, including:

  • You held a Queensland Open Licence at the time of the offence.
  • You must be facing a disqualification for one of the specific drink or drug driving offences mentioned above (you are ineligible if your BAC was 0.15% or higher, or if you were charged with driving under the influence).
  • You have not been convicted of a drink driving, drug driving, or dangerous driving offence in the last five years.
  • You have not had your licence suspended or disqualified (with some exceptions) in the last five years.

What You Must Prove to the Court

You must satisfy the court that:

  • You are a “fit and proper person” to hold a licence, having regard to the safety of other road users.
  • Failing to grant the work licence would cause extreme hardship to you or your family by depriving you of your means of earning a living.
  • You must show that losing your job and your income is a likely result if you cannot drive. It is not enough to say that it would be inconvenient or make your job harder.

Key Application Steps for a Work Licence

  • Preparation is key: Unlike the Special Hardship Order, you must apply for the Restricted (Work) Licence at the time you are convicted and sentenced for the driving offence. This means you must have all your documents ready before your court date.
  • Affidavits: You will need to prepare detailed affidavits from yourself and your employer explaining your essential need to drive for work and the extreme financial hardship that would result if you lost your licence.
  • Court hearing: At your court appearance, you plead guilty to the charge and then make the application for the Restricted (Work) Licence.

The Importance of Legal Advice

Both the Special Hardship Order and the Restricted (Work) Licence applications are highly technical processes with strict time limits and complicated legal requirements. The courts do not take these applications lightly. If you fail to meet all the criteria, or if your application documents are incorrect or not persuasive, the Magistrate will refuse the order, and you will lose your only chance to apply.

An experienced Queensland traffic lawyer can:

  • Confirm your eligibility.
  • Prepare your application and detailed affidavits to maximise your chance of success.
  • Represent you in the Magistrates Court.

If you or someone you know is facing a licence suspension or disqualification in Queensland, please contact us today to discuss your circumstances and eligibility for a Special Hardship Order or Restricted (Work) Licence. Please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Social media and family law – Just don’t do it!

Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life.  Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones.  But what happens when people going through a relationship breakdown take to social media? Usually little good comes of it, and sometimes quite a lot of bad can result.

Social media as evidence

If you are going through a separation, you should expect your former partner, their lawyer or the children’s lawyer to search social media to see if they can find out anything damaging about you that could be used as evidence. For example, if you are involved in a financial dispute and might be claiming that you cannot afford to pay spouse maintenance or increased child support, it would probably not be a good idea to share on Instagram photos of your latest holiday or new car.

Similarly, when involved in a parenting dispute, you would be wise not to post to Facebook about your latest “big night out”, especially if the children were in your care at that time.

When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another.  So, it is not likely to be helpful if the Court is shown evidence of abusive or derogatory posts you have made on social media about your former partner.

Of course, many people have social media privacy settings which limit the information that can be seen by non-“friends”. If you haven’t set your social media privacy in that way, you would be wise to do that while you’re sorting out the issues arising from your relationship breakdown. However, even with tight privacy settings, it’s still better to be very careful about what you post, or just don’t do it at all.

Social media and prosecution

The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.

That prohibition has not prevented some people involved in family law proceedings from using social media as a weapon against their former partner, by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.

In two recent cases involving such unlawful social media publication, the Court focused primarily on two things.

Firstly, the Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.

Secondly, the Court considers it in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, which some litigants have used social media to attack.

In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.

In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.

Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.

Can social media be good?

The cases referred to above involved ongoing bitterness and acrimony between the separated couple. Happily, that isn’t always the case, and some separating parents can respectfully communicate and cooperate with each other for the benefit of their children. In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.

Conclusion

Unless you and your former partner can find a way to privately use electronic communication to help you co-parent your children after separation, the general guideline when it comes to social media and family law disputes is just don’t do it.

Not only would you not want to find your Facebook posts being used as evidence against you in court proceedings, you could even expose yourself to prosecution by the Federal Police for breaching the law against publication of information relating to family law proceedings. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

The Relevance of a De Facto Relationship in Australia

Australian society has long recognised the existence of non-traditional domestic partnerships. This has been reflected across various laws, with de facto relationships holding significant weight from a legal perspective. This can be a confusing area, especially when it comes to understanding what a de facto relationship actually is and why it matters from a legal stance.

So, why is this important, and what does it mean for you?

This article breaks down what constitutes a de facto relationship in Australia, how the law determines if one exists, and why this status is so relevant, particularly in areas like family law and financial matters. The information is general only and is not intended to be legal advice. If you need guidance, we recommend consulting an experienced lawyer.

What is a De Facto Relationship?

The Latin term “de facto” simply means “in fact” or “in reality”. In a legal sense, it means a couple is living together on a genuine domestic basis, even though they aren’t married.

The definition of a de facto relationship is found in section 4AA of the Family Law Act 1975 (Cth). The Act is a federal law, and its principles are applied across Australia, although some states have their own specific laws that also deal with de facto relationships, particularly in areas outside of family law.

According to the Family Law Act, a person is in a de facto relationship with another person if:

  • They are not legally married to each other.
  • They are not related by family.
  • They live together on a genuine domestic basis.

The third point is the one that often requires the most thought, and the law looks beyond simply sharing a house. To determine if a genuine domestic basis exists, a court will consider various factors. No single factor is more important than another, and a court will look at all of them to get a complete picture of the relationship.

These factors include:

  • The duration of the relationship: How long have you been together? Generally, a de facto relationship needs to have lasted for at least two years. However, this is not a strict rule, and there are exceptions.
  • The nature and extent of your common residence: Do you live together? Do you have shared responsibilities for the home?
  • Whether a sexual relationship exists: This is one of the factors, but it is not a defining one. A couple can be in a de facto relationship even if they no longer have a sexual relationship.
  • The degree of financial dependence or interdependence, and any arrangements for financial support: Do you share bank accounts, split bills?
  • The ownership, use, and acquisition of property: Do you own assets together, like a car or a house?
  • The degree of mutual commitment to a shared life: Do you consider yourselves a couple and present as such to the world?
  • Whether the relationship is registered under a prescribed law of a state or territory: In some states, you can register a relationship, which provides formal legal recognition.
  • The care and support of children: Do you have children together, or do you care for each other’s children?
  • The reputation and public aspects of the relationship: Do friends, family, and the community see you as a couple?

The law looks at the combination of these factors to decide whether a de facto relationship exists.

Why a De Facto Relationship is Relevant in Australia

The legal recognition of de facto relationships is a big deal because it grants de facto couples many of the same rights and responsibilities as married couples. This is most obvious in two key areas: family law and financial matters.

Family Law

For many years, couples who were not married had limited legal recourse if their relationship ended. That changed with reforms to the Family Law Act that came into effect in 2009. These changes gave de facto couples the right to ask a court to make orders about property settlement and spousal maintenance after a relationship breakdown, just like a married couple.

The principles for dividing assets in a de facto relationship are largely the same as for a married couple. A court will consider:

  • The assets and debts of the relationship.
  • The financial contributions each person made, such as income, savings, and assets brought into the relationship.
  • The non-financial contributions. These can include caring for children, looking after the home, or supporting the other person’s career.
  • The future needs of each person, such as their age, health, income, and who has care of the children.

This legal recognition means that if you are in a de facto relationship and it ends, you are protected by the same legal framework as a married couple when it comes to property division.

Financial Matters

Beyond family law, being in a de facto relationship can impact a range of other financial and legal areas:

  • Superannuation: Many superannuation funds recognise de facto partners as beneficiaries for death benefits.
  • Wills and inheritance: In some cases, a de facto partner can make a claim on a deceased partner’s estate, even if they were not included in the will. The law in each state and territory varies on this point.
  • Social security and government benefits: Your de facto status can affect your eligibility for benefits from Centrelink, as they assess your combined income and assets.

Key Takeaways

The concept of a de facto relationship acknowledges that many people choose not to marry but still want the same legal protections and recognition as married couples.

If you are in a relationship that you think might be a de facto relationship, it is important to understand your rights and obligations, especially if you are considering buying property together or if the relationship ends. The law’s purpose is to ensure that both partners are treated fairly and that any children of the relationship are properly cared for.

The detailed and comprehensive definition of de facto in the Family Law Act ensures that the unique circumstances of each couple are taken into account, providing a flexible framework for addressing a wide range of situations.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Navigating Resident Return Visas Australia

Australia’s dynamic immigration landscape often involves individuals who, having previously held citizenship or permanent residency, find themselves needing to navigate the intricacies of Resident Return Visas (RRVs). This article sheds some light on what RRVs entail, their usage, eligibility criteria, and the residency requirements individuals must meet to ensure a smooth transition or return to Australia.

What is an RRV?

An RRV is a travel document issued by the Australian government that allows individuals who hold or have held, permanent residency to return to Australia after their initial visa has expired. It serves as a bridge between the expiration of the original permanent residency visa and the acquisition of citizenship, providing flexibility for individuals to travel in and out of Australia.

When is an RRV Used?

There are several specific circumstances when an RRV may be required. The most common examples are:

Expired Permanent Residency Visa

Individuals with an expired permanent residency visa who wish to return to Australia need an RRV. This is particularly crucial for those whose initial visa has expired, and who have not yet acquired Australian citizenship.

Existing Permanent Residents Leaving Australia

Permanent residents planning to leave Australia temporarily and return after an extended period must ensure they hold a valid RRV to avoid complications upon re-entry.

Australian Citizens Leaving and Returning

Australian citizens do not require an RRV for travel. However, dual citizens or individuals holding citizenship in another country may need an RRV if they wish to enter Australia as a permanent resident.

Eligibility Requirements and Conditions

Obtaining an RRV is contingent upon meeting specific eligibility criteria and adhering to certain conditions.

Previous Permanent Residency

To be eligible for an RRV, applicants must have previously held a permanent residency visa or previously been an Australian citizen. The type of visa held previously can impact the validity and conditions of the RRV.

The applicant must demonstrate a substantial period of residence in Australia or significant ties to the country. This is assessed by considering the number of days the individual has spent in Australia during the preceding five years. To be eligible for a five-year RRV, applicants must have spent at least two years in the last five years as permanent residents or citizens in Australia. This establishes a reasonable connection to the country. For those who do not meet the five-year criterion, a one-year RRV may be granted if they have spent at least one day in the last five years as a permanent resident or citizen in Australia.

Compassionate Grounds

Even if individuals do not meet the standard residency requirements, an application for an RRV may be made on compassionate grounds. This involves demonstrating compelling situations concerning employment, family commitments, or unique personal circumstances.

Substantial Ties to Australia

If an applicant does not meet the traditional residency requirements, they can still qualify if they can prove substantial ties to Australia. This includes family connections, business interests, or cultural affiliations.

Australian Values Statement

Applicants aged 18 years and over applying for entry on an RRV must sign an Australian Values Statement, affirming their commitment to uphold Australian values while in the country.

Navigating the Application Process

The application for an RRV is typically submitted online through the official immigration portal. The online platform allows for efficient processing and communication with the Department of Home Affairs. The processing time for RRV applications can vary. It is advisable to apply well in advance of planned travel to ensure timely approval.

An application fee is applicable and varies based on the type of visa sought and the individual circumstances. The fee must be paid when submitting the RRV application. Applicants must provide supporting documentation, including proof of previous residency, compelling reasons for absence, evidence of substantial ties, and any other relevant information to strengthen their case.

 

Conclusion

To navigate the complexities of RRVs in Australia you will need a thorough understanding of the eligibility criteria, residency requirements, and the application process. For individuals seeking to return to Australia after the expiration of their initial permanent residency visa, or those planning extended stays abroad, obtaining a valid RRV is crucial. By carefully assessing individual circumstances, meeting residency requirements, and providing compelling reasons for absence, applicants can enhance their chances of a successful RRV application and enjoy the benefits of continued connection to Australia.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

How to Locate an Original Will

Losing a loved one is often an emotionally overwhelming experience, and amidst the grief, managing legal matters can add another layer of complexity. Yet it most often falls to those closest to the deceased to manage the administrative burden created by death. A crucial document in such circumstances is the Last Will and Testament of the deceased. A Will outlines the deceased person’s wishes regarding the distribution of their assets but may also express their intentions in relation to the care of children and pets, and other critical instructions. Unfortunately, the location of this critical document is often not obvious, and locating the Will is frequently a considerable source of frustration for those administering the estate.

What Makes a Will Valid?

The formal requirements for a Will to be considered valid in Australia usually include it being in writing, signed by the testator (the person making the Will), and witnessed by at least two competent witnesses who also sign the document. Each state and territory in Australia sets out the legal requirements for a formal Will in that jurisdiction.

When a document intended as a Will does not satisfy these requirements, it is known as an “Informal Will”. For example, if a Will has not been properly signed or witnessed, it will fail to meet the requirement of a Will as set out in the legislation, even if it is correct in every other aspect. In some circumstances, an Informal Will may be admitted to probate by the Supreme Court even if it does not meet the strict legal requirements.

How Do You Locate a Will?

The initial step to locating a Will is to start by searching the deceased’s home for a physical copy of the Will. You should look in secure places like safes and filing cabinets, or other places where the deceased tended to keep important papers. For instance, the Will might be held in safe custody with a bank or a storage facility. You can reach out to these institutions to inquire if the deceased had a safe deposit box or storage unit.

You can also contact the deceased’s lawyer who may have drafted the Will. Lawyers often retain the original of the Will for safekeeping, or they might have information about the location of the original document. You can also check with the relevant state or territory’s Supreme Court registry. They maintain records of Wills that have been registered, although it is important to know that most people do not register their Will.

Finally, you can conduct a Probate Search at the relevant Supreme Court to discover any lodged or granted probate of the deceased’s Will, which may help if another family member or friend already located the Will and began the administration of the deceased’s estate.

Legal Assistance

When a Will cannot be located using these initial strategies, you may need to seek guidance from a qualified legal professional or lawyer experienced in estate planning and probate matters. They can offer tailored advice, clarify legal obligations, and assist in addressing any concerns regarding administering the estate without a valid, original Will. Ultimately, proper documentation and legal guidance can significantly contribute to honouring the deceased’s wishes and minimising potential conflicts during the probate proceedings.

Do You Need the Original Document?

When a Will is made in Australia, especially when it is drafted by a lawyer, it is often copied. In such cases, the testator will usually take a copy for their records and the original is stored in a safe location. Understandably, it is often this copy that is found by the deceased’s family, but it is the original that is considered the primary document. This original document holds significant legal weight and is typically required for the probate process to validate its authenticity.

However, circumstances might arise where the original Will cannot be located after a person’s passing. In such cases, there are procedures in place that may accept a copy of the Will under specific conditions. These conditions often involve proving the authenticity of the copy through various means, such as presenting witness statements, providing evidence that the original was not destroyed with the intent to revoke it, or demonstrating that the copy reflects the true intentions of the deceased.

While a copy of the Will might be accepted under certain circumstances, it can complicate the probate process and potentially lead to delays or disputes among beneficiaries or interested parties. Therefore, it is strongly advisable to keep original Wills in a safe and easily accessible location, such as with a trusted legal advisor, the executor, or in a secure place like a safety deposit box.

Conclusion

The process of locating an original Will can demand patience, diligence, and often legal assistance. Understanding the avenues available and systematically exploring each option increases the likelihood of finding the document. While it may seem daunting, the efforts put into locating the original Will are invaluable in honouring the wishes of the departed and navigating the legalities of estate distribution.

This information is general only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Assessing Eligibility for a Partner Visa in Australia

A visa is a form of permission for a non-citizen to enter, transit or remain in a particular country. In Australia, a partner visa offers a pathway for individuals to join their partners and establish a life together in this country. This visa category recognises and supports genuine relationships, enabling partners to live, work, and study in Australia. However, before embarking on an application for a partner visa, it is crucial to understand the eligibility criteria and the factors used to assess the genuineness of a relationship. By understanding the requirements, individuals can navigate the partner visa process with confidence and increase their chances of a successful application.

What Can a Visa Partner Allow You to Do?

Obtaining a partner visa opens up numerous opportunities. With a partner visa, you can live in Australia for an indefinite period, work and study, access Medicare (Australia’s healthcare system), and even apply for Australian citizenship if you meet the requirements. This visa provides a solid foundation for building a life with your partner in this country.

Types of Partner Visas

There are different types of partner visas available in Australia, depending on the circumstances of the relationship. The most common ones include the “prospective marriage” visa and the “partner” visa.

A prospective marriage visa (also known as a “fiancé” visa) is for individuals who are engaged to an Australian citizen, permanent resident, or eligible New Zealand citizen. It allows the visa holder to enter Australia and marry their partner within the validity period of the visa.

A partner visa is for individuals who are already in Australia and are in a genuine and committed relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen. Both the applicant and their partner must be at least 18 years old, and the applicant and their dependents must meet certain health and character requirements. To obtain a partner visa, evidence must be provided to demonstrate the genuineness of the relationship.

What is a Genuine Relationship?

A genuine relationship is the cornerstone of a successful partner visa application. The Department of Home Affairs assesses the genuineness of the relationship based on specific factors, but it is important to note that this assessment is not limited to these factors alone. Each case is unique, and the Department of Home Affairs evaluates the overall circumstances to determine the genuineness of the relationship.

The first step of proving a genuine relationship is each person describing their commitment and emotional support for their partner, along with evidence of communication, such as emails, letters, or phone records. Another significant factor in establishing a genuine relationship is evidence of joint financial commitments, such as shared bank accounts, joint ownership of property, or joint liabilities. Proof of cohabitation is often also provided, which can be demonstrated by joint leases or rental agreements, utility bills in both names, or correspondence addressed to both partners at the same address.

Parties applying for a partner visa will often also show evidence of a shared social life, such as joint invitations to family events, travel documents showing joint travel, or photographs and testimonies from friends and family. Applicants may also produce documentation showing joint future plans, such as wills, joint investments, or joint participation in long-term commitments, like purchasing property together.

Refusal

If your application for a partner visa has been refused, you should read your refusal notice carefully because each decision is different. This letter should advise:

  • if you have the right to appeal your decision
  • the timeframe available to lodge an appeal
  • the relevant body your appeal should be directed to.

If you are already in Australia, you will probably be granted the right to appeal the refusal to an Australian tribunal or a court. Alternatively, if your partner visa application was lodged offshore, your Australian citizen partner may be able to lodge the appeal.

The most common place to appeal a partner visa refusal decision is to the Administrative Appeals Tribunal (AAT). There are strict time limits when appealing to the AAT, so it is very important to read the appeal deadline in your visa refusal letter carefully. Unfortunately, AAT appeal deadlines cannot be extended, and we recommend obtaining legal advice to assist with a proposed appeal.

Conclusion

A partner visa supports genuine relationships by allowing partners to live, work, and study in Australia. Immigration laws, however, are complex and it is important to understand the eligibility criteria and potential issues before making an application. An experienced immigration lawyer can guide you through the process to ensure your application meets the necessary conditions to give you the best possible chance of having a visa granted.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.