Archive for the ‘Newsletters’ Category

Boundary Disputes – Resolving Divided Interests with Your Neighbours

Unfortunately, disputes between neighbours are some of the most common legal disputes in Australia. Often these disputes arise because of shared fences, overhanging trees, and property boundaries. This article looks at how to resolve a dispute over a dividing boundary line between properties. The information is for general purposes only, and we recommend obtaining professional advice relevant to your specific circumstances.

Determining the Boundary Line

In a new housing estate, the boundary line of a property is usually clear. The developer can supply copies of property plans with all the boundaries marked, and there are usually physical pegs in the ground to represent these boundaries.

Things become more complicated when it comes to older, more established, properties. Buyers of established properties usually rely on the location of fences to determine where the boundary line is located, although this is an unreliable method. For one thing, not every property is fully fenced, especially large rural properties. In addition, even if there is an existing fence, it may not faithfully follow the property line. Property owners build fences in locations other than the boundary line for all sorts of reasons, for example, because of the difficulties of building exactly on the property line due to obstructions or soil conditions.

In rare cases, and usually only with larger rural properties, the boundary of a property may be marked by a physical landmark such as a river. This obviously raises issues if the landmark changes, such as the river changing course over time. There are special complex rules that apply to these sorts of boundaries, and how you should resolve a dispute over this type of boundary.

For most properties, however, establishing the location of the boundary is fairly straightforward (although it can be expensive). A boundary survey will establish the exact lines and corners of a property. It is often worth having a boundary survey carried out prior to buying a property, even if there are established fences or the boundaries seem obvious. It can be especially worthwhile if you intend to build an extension or other improvement and the location of the boundary line might impact your future plans.

Resolving Disputed Boundaries

When neighbours can’t agree on the location of a property’s boundary, this can lead to a boundary dispute. It’s important to deal with boundary disputes as quickly and efficiently as possible to avoid issues arising such as encroachment, adverse possession, and trespassing. Maintaining a harmonious relationship is the first step in trying to resolve the dispute and can be key to resolving it as quickly and inexpensively as possible.

The next step is to identify the real nature of the dispute. If there is no existing fence and no boundary pegs, then both parties may be invested in identifying where the boundary actually falls. If there is an existing fence and one party is concerned that it is mislocated, then that party may have to bear the cost of having a survey done to confirm the true location.

If there is no existing fence to mark the boundary location, or the existing fence is in the wrong place, then the parties need to work together to plan for, and pay the cost of, a new fence. No matter where you are located in Australia, both neighbours have a legal responsibility to contribute to the cost of a reasonable fence. Although this is often a considerable expense, it is far more expensive and stressful to fight a protracted legal battle to avoid paying the cost. There is usually little point in trying to avoid an unavoidable cost of homeownership.

A more complex dispute can result when the boundary has been mislocated for a long period of time, especially if one neighbour has built improvements over the boundary line or uses part of their neighbour’s land to access their own property.

It is important to establish whether there is an easement involved in the boundary dispute. If there is a formal easement marked on the title, then the neighbour benefiting from the easement has a legal and protected right to use their neighbour’s land for a specific purpose (such as to access their own property).

Adverse Possession

Even if there is no easement on the title, this may not be the end of the matter. If someone has had sole use of part of their neighbour’s property over a long period of time, they may be able to claim what is called “adverse possession” of that part of the land. The rules in each state and territory differ, but simply put, if a person has openly and obviously used land for a number of years (especially if they fenced it so that the true owner did not have access) then they may gain legal ownership.

The law of adverse possession is just one reason that knowing the true boundaries of your property may be important. Adverse possession is a complex area of law, and you should seek legal advice if you think that you may be subject to an adverse possession claim or may wish to make such a claim.

Conclusion

The most important thing to remember when resolving any dispute, and especially a dispute with a neighbour, is to try to create and maintain a good relationship before, during and after the dispute. Property law can be complex but there are professionals who can help you resolve and document an agreement reached with your neighbour to resolve your boundary dispute.

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.

International relocation and child abduction

After separation, a parent or guardian may decide to move the children of the relationship overseas. However, this can only be done with the fully informed consent of the other parent, guardian or a court order. International child abduction occurs when a parent or guardian takes their children from their home country without this permission.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) provides a process for seeking the return of children who have been abducted either from or to Australia. The information below provides a guide on this process, however we strongly recommend you seek legal advice immediately as this area of law can be complex.

International Relocation

If you are separated from your partner and want to relocate overseas with your children, you must have the consent from your ex-partner or a court order, otherwise your ex-partner can request the Australian Central Authority to make an application to have your children returned to Australia. This is the Department responsible for administering the Hague Convention.

If your ex-partner does not consent to an overseas relocation, you can apply to the court for an order allowing you to relocate. When the court decides an Application for International Relocation, they are deciding on a parenting matter and like all other parenting matters, the most important concern for the court is determining the child’s “best interests”. For example, if the parent who is the main caregiver wishes to relocate overseas with the children, one of the main concerns for the court is to ensure the children maintain a meaningful relationship with the other parent whilst they are living overseas. The court’s decision can also be affected by circumstances such as family violence, substance abuse, the child’s views and specific needs.

In preparing your Application for international relocation, you need to demonstrate to the court what life will be like when living overseas, for example, where you will be living, working, your potential income and the type of school your children will attend. You should also demonstrate what the children’s social lives would look like and what type of support will be available for the children and more importantly, how the children will maintain and develop a relationship with the other parent.

As mentioned above, international relocation cases are a complex area of law so we strongly recommend you seek legal advice.

The Hague Convention and abducted children

The Hague Convention is the main international agreement that covers international parental child abduction and provides a process through which a parent or guardian can seek to have their child returned to Australia, (if that country is also party to the Hague Convention).

What can I do if my child has been abducted from Australia?

You should carry out the following steps immediately:

  1. Contact the Australian Federal Police for advice on placing your child’s name on the “Family Law Watchlist.” You will need to apply for a court order for this to happen. Your child might still be in Australia so their abduction may still be prevented.
  2. Seek legal advice from an experienced lawyer who can assist with obtaining recovery orders and provide you with legal guidance.
  3. If your child has been taken to a country that is a member of the Hague Convention, contact the Australian Central Authority. For a list of countries who are party to the Hague Convention, visit the Hague Convention webpage.
  4. If you believe your child has been taken to a country not a member of the Hague Convention, contact the Consular Branch of the Department of Foreign Affairs and Trade who will be able to assist you.

Time is of the essence in international abduction cases. As this area of law is complex, we strongly recommend you seek legal advice from an experienced lawyer immediately.

Conclusion

The law regarding international relocation of children is complex, and the outcome of any dispute is dependent on each family’s own set of unique circumstances. Relocating children overseas can only be done with the fully informed consent of the other parent, guardian or a court order.

When children are taken overseas without the consent of the other parent or the court, the Hague Convention provides a process through which a parent can seek to have their child returned to Australia. If the country that the child has been abducted to is a not a member of the Hague Convention, the Consular Branch of the Department of Foreign Affairs and Trade will assist in attempting to bring the abducted children back home.

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.

Why you should use an Immigration Lawyer

Applying for a visa can be a daunting and complex task. While some applications can be relatively straightforward, such as a holiday visa, others can be very complicated and require an in-depth knowledge of the specific country’s laws and visa processes.

The Migration Act 1958 and Migration Regulations 1994 provide pathways allowing eligible people to migrate to Australia. Identifying the most appropriate pathway and visa type is the first step in preparing a valid visa application. Obtaining professional immigration advice before applying for a visa helps to ensure the most appropriate pathway is chosen and your application is properly made.

Save time and money

By working with an immigration lawyer, you can often save time and money by minimising mistakes to obtain a faster result.

Sometimes small things can have a huge impact on your visa outcome. If you are submitting an application for a visa by yourself or making your application based on what a friend did in their case, you could make a costly mistake. And some mistakes can have terrible consequences, such as a refusal or a considerably lengthy delay.

Form filling is only one aspect of the visa application process. If you don’t meet the requirements set by the visa type you wish to apply for, you may be just filling in applications with no chance of obtaining a visa.

Avoid mistakes and traps

An immigration lawyer understands the precise documents required for your visa type, which will help to minimise mistakes and streamline your application. Providing the Department of Home Affairs with all the forms and supporting documents required is referred to as a decision-ready application. These applications are processed faster without unnecessary delay.

Even a small error in terminology or incorrect interpretation can have a significant effect on the validity of a visa application. It is not the job of the Department to check and assist a visa applicant in their visa application. One error, however small, could leave you with an invalid application which will be returned to you without being considered by the Department, or refused.

It is important to remember that immigration laws and policies change frequently, which can mean that you may meet the requirements for a successful visa application on one day and not be eligible for the same visa the next.

Receive objective assessment

An applicant cannot always be expected to have comprehensive knowledge of particular migration laws, policies or visa processes and requirements. Individual circumstances such as education, age, health, family, character and more are taken into consideration by the Department.

By consulting an expert, you will receive objective visa assessment advice, a tested visa strategy, and clear instructions about what documents are needed. The required material can be forwarded to your immigration lawyer who will prepare your application, lodge it, and follow up with the Department on your behalf.

Skill and strategies

By using an experienced immigration lawyer, you will benefit from in-depth knowledge and strategies based on the professional’s experience working with visa applications, as well as access to legislation databases and resources.

An immigration lawyer can assist you and guide you through the different types of visas that may suit your circumstances and provide you with up-to-date information on immigration requirements and laws.

In addition to providing details of the visa requirements, immigration lawyers can complete the required paperwork on your behalf and lodge the application which can streamline the entire process.

If your circumstances mean that you are unable to obtain the visa you want, an immigration lawyer may be able to provide you with other avenues or bridging visa options that you may wish to consider, which could provide a pathway to obtaining the desired visa at a later time.

Conclusion

Australia’s migration laws and policies are constantly evolving. Getting the right information and advice from the outset can avoid costly mistakes and delays in processing your visa application. Using an experienced immigration lawyer with a sound knowledge and understanding of migration laws and procedures can make a big difference when preparing your 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.

Helping Your Kids Step into the Property Market

Buying a first home has always been a financial challenge, but housing affordability in Australia has declined so much in recent decades that younger generations are struggling to gain entry to the property market at all. As a result, more parents wish to take practical steps to help their children step onto the property ladder.

This article explores three common ways that parents can assist their kids buy a home: through a gift of cash, a loan, or by acting as a guarantor. In addition, we will look at two less common approaches: co-ownership purchases and using trusts to assist children to make their first home purchase. We’ll delve into the pros and cons of each approach, highlighting key considerations and the main risks of each option. The information is general only and we strongly recommend that you seek professional advice before taking any course of action.

Gifts

Many parents choose to simply provide their children with a monetary gift to assist with their first property purchase. This gift can be used for a deposit or to reduce the mortgage amount.

This is a generous gesture that provides children with the maximum freedom to immediately use the funds to assist them with a property purchase. In addition, receiving this gift should have no tax implications for the recipient.

However, such a gift will have an irrevocable impact on the parents’ finances, without the promise of future repayment. Parents should only make such a gift if it will have no impact on their financial security in the future.

Loans

Alternatively, parents can opt to provide a loan to their children to be repaid over time, with or without interest. These loans may be recorded in a formal written loan document, although it is not uncommon for these loans to be verbally agreed between the family members.

Loaning money provides a structured approach to assist children with the purchase of a home. With a carefully drafted loan agreement, including a structured repayment schedule, this can be a way for parents to help with less risk to their own financial security.

However, loans between families can be a source of relationship conflict, especially if the loan is not repaid in a timely fashion. Moreover, family loans are often not well documented, and this can result in the parties having a very different understanding of their obligations. In the worst case, these arrangements can result in legal challenges and a breakdown of family relations.

Seeking legal advice when loaning money is a wise step. A legal professional can draft clear agreements and ensure that all parties fully understand the terms and consequences.

Guarantor

Going guarantor usually means that parents use their own property or assets as collateral to secure a home loan for their children. This approach can help their kids avoid paying Lender’s Mortgage Insurance and may allow a purchase to go ahead with a substantially smaller deposit.

This approach enables parents with assets, such as a family home, but limited free cash, to help their children without having to put up any money of their own. Most significantly, by reducing the need for a large deposit, going guarantor can assist children to enter the property market many years earlier than they may be able to manage without assistance.

However, it is very important that parents realise that this is not a low-risk option. Too often, parents will go guarantor without fully understanding that they can lose their own assets (including their home) and are personally liable for repayment of the loan if their children fail to meet their mortgage repayments.

Property Co-ownership

A less common option is for parents to purchase a property with their children, sharing both the financial and legal responsibility. This provides a sense of security for the younger buyer and allows for sharing property expenses. It also has the benefit that both parties will gain from any increased equity. This can be an especially good option for parents of young adult children, who can share a house purchase with a child that would otherwise have to wait many years to afford their own property.

However, like the other options discussed, this approach can be fraught with challenges. First, it is vital that the correct ownership structure is chosen, so that there is no doubt as to what happens to the property if one party passes away or wishes to sell. It is also important that there is an agreement about how issues will be dealt with during the life of the co-ownership, such as unexpected property expenses. You should plan for various future scenarios, such as what happens if your child decides to sell the property or if you want to reclaim your investment. Having an exit strategy in place can help prevent potential disputes.

Finally, consideration should be given to any benefits that the children will miss out on due to the joint enterprise, such as benefits only available when all purchasers are first home buyers.

Family Trusts

Often families with significant or complex assets will use a family trust to assist their children, or even grandchildren, to purchase property. A trust can offer various options for transferring property or assets to children while allowing parents to maintain control and direction over the assets.

This approach can have tax benefits, although this is an area where it is necessary to obtain expert advice tailored to the circumstances. The need for ongoing legal and financial advice and administration can make this a complex and expensive option. It is usually only advisable for families with significant or complicated assets, or where control and protection of the asset is an important consideration.

Conclusion

Money can strain even the most amicable relationships. Consider the potential impact on family dynamics when providing financial assistance to your children and discuss expectations and obligations openly.

Each method, whether gifting, loaning, going guarantor, co-ownership, or establishing family trusts, comes with its own set of advantages and drawbacks. Consider the potential impact on family relationships, document financial transactions to mitigate risks, and seek legal and financial advice to make informed decisions.

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.

Can I Stop Somebody from Contacting or Seeing my Child

In the complex landscape of family law, few issues are as emotionally charged as the care of children. It is common for parents to question what they are legally obliged to do and their decision-making rights about their children. For instance, parents often struggle with knowing whether they can stop someone from contacting or seeing their child. Sometimes this is about contact with the other parent, but at other times the contact is with another significant person, such as a grandparent. Unfortunately, in neither case does the law provide clear-cut guidance, although there are principles that can help to determine these issues.

Contact with the Other Parent

In Australia, the law concerning the care of children is generally governed by the Family Law Act 1975 and exercised by the Federal Circuit and Family Court of Australia (or, in Western Australia, the Family Court of Western Australia). Family law prioritises the best interests of the child above all else.

Historically, when the care of a child has become a decision for the Court, it has favoured arrangements that allow for ongoing contact with both parents, even in cases of parental conflict or estrangement. This is not because parents have ‘rights’ regarding their children, but rather because there  was a presumption that both parents had ‘equal shared parental responsibilities’ towards their children. Therefore, if both parents have equal decision-making power about their child, it was presumed by the Court that neither parent should prevent contact between the child and the other parent.

However, this presumption was always rebuttable. There were circumstances in which the Court would limit or restrict contact between a parent and their child to ensure the child’s safety and well-being. These circumstances typically involved abuse, neglect, substance abuse, domestic violence, or other factors that posed a risk to the child’s physical or emotional health. Accordingly, outside of the courtroom parents were empowered to limit or restrict contact with the other parent if it endangered their child’s safety or well-being.

If the other parent believed that this power was being used inappropriately or punitively, they could seek legal intervention to establish contact. In such cases, the Court would carefully consider the evidence presented and make a decision based on the best interests of the child.

More recently, the Court is being guided by legislative changes to acknowledge, from the outset, that a child may not benefit from spending significant time with a parent and the presumption of shared parental responsibility has been removed. The Court will now consider an amended set of factors when making decisions about parental contact.

These factors include what arrangements promote the safety of the child and each person who has care of the child, the views expressed by the child, the developmental, psychological, emotional and cultural needs of the child, and the capacity of each parent to meet those needs. In addition, the Court will consider the benefits to the child of having a relationship with their parents and other people who are significant to them and anything else that is relevant to the particular circumstances of the child.

Despite this changed emphasis and provided the best interests of the child are at the forefront, it is likely to remain uncommon for the Court to order that a child has no contact with one of their parents. There is a significant body of research that shows that in most circumstances it is in the best interests of children to have a relationship with both parents. As such, parents outside the courtroom should consider withholding a child’s contact with the other parent to be a course of last resort and only taken when it is necessary in the interests of the child. Parents should also be mindful that withholding a child from contact with another parent without valid justification can have serious consequences. The Court takes a dim view of parents who engage in ‘parental alienation’, which involves manipulating or coercing a child to reject the other parent.

Other Significant People

Ultimately, the goal of Australian family law is to promote the well-being of children. Within this broader mission, the Court not only considers contact between the child and their parents but also contact with other people who are significant to the child. For instance, if a child has developed a relationship with a grandparent, perhaps through regular visits, it may not be in their interests to have this relationship severed. Again, this is not because of any concept of ‘grandparent’s rights’, which is not a recognised legal principle in Australia. Rather, it is because the Court recognises that when someone is important to a child, it can be harmful for them to lose this person and that this should only happen if it is unavoidable. For instance, if a grandparent is abusive or alienating, then it would be reasonable to prevent them from having contact with the child, even if this goes against the child’s expressed wishes. However, it would not be sufficient for a parent to withhold access to their child simply because they wish to do so, or to punish the grandparent, in circumstances where the child has a positive and longstanding relationship with their grandparent.

Conclusion

At all times a parent must consider the best interests of their child when determining who can and cannot have contact with their child. As long as it is the child’s interests that are being prioritised, the parent may decide to prevent contact. If the other person has the necessary standing, they may challenge this decision before the Court, at which time consideration will be given to what is in the overall best interests of the child. This consideration will include the impact on the child if their parent is forced into contact which is not healthy, such as with a parent with whom they have a negative relationship.

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.

Can I Change the Locks After We Separate

Separation is often a challenging and emotionally charged time in a person’s life, usually accompanied by significant decisions regarding living arrangements. One common question that arises during this period is whether it is legally permissible to change the locks on a property after separation. Unfortunately, it is difficult to give a simple answer to this question as it depends on a number of factors, including whether the property is rented or owned, and whose name is on the relevant paperwork. Understanding the law regarding the occupancy of a property is crucial in navigating this situation within the bounds of the law.

Leased Property

When the property is leased or rented, all tenants listed on the lease have the right to live in the property during the term. However, in this situation, the paperwork is largely irrelevant, as tenants are generally prohibited from changing the locks without the landlord’s permission, even in the context of a separation. As such, altering locks without proper authorisation could lead to eviction or breach of lease terms.

This does not mean that a person in a leased property must continue to reside with someone until the end of the lease, especially in situations involving domestic or family violence. In such situations, it is wise to speak to a tenant advisory service in the relevant state or territory, as there are options to help tenants break leases to escape unsafe situations.

Owned Property

Joint owners have equal rights to access and occupy a jointly owned property unless and until a legal agreement or court order dictates otherwise. Therefore, if both partners have joint ownership of the property, neither party can unilaterally change the locks without the other’s consent.

By contrast, in cases where one party solely owns the property, that owner generally has the right to change the locks, denying access to the other party. However, even if one party is the sole owner, changing the locks without prior discussion can be viewed as an aggressive move and may escalate tensions during separation negotiations.

In addition, changing the locks, even with full legal authority as the sole legal owner, may be subject to challenge in family court proceedings. If there are children involved, locking a co-parent out of the home can have significant emotional and psychological consequences for the children. As the court prioritises the best interests of the children, in most cases it is important to not take unilateral steps that will disrupt the relationship between the children and the other parent.

What Orders Can the Court Make?

When disputes over the occupancy of a property arise after separation, parties can seek court intervention to resolve the issue. The court has the authority to make various orders, depending on the circumstances. For instance, the court can grant an exclusive occupancy order, allowing one party to remain in the property while the other is required to vacate, regardless of the legal ownership of the property. This order is typically issued to ensure the stability and well-being of children or the safety of one of the parties.

In contrast, the court can also issue a non-removal order, preventing either party from removing the other from the property. This order aims to maintain the status quo and protect both parties’ rights until a final resolution is reached. Moreover, if one party has been locked out of a jointly owned property, the court can order financial compensation or reimbursement for expenses incurred as a result of being denied access. Finally, the court may order the sale of the property and the division of proceeds between the parties, effectively ending their co-ownership.

It is important to note that obtaining court orders requires legal proceedings, and both parties will have the opportunity to present their case and provide evidence of their respective positions. The court will consider factors such as the best interests of children, financial circumstances, and safety concerns when making these orders. However, this is likely to be a difficult and time-consuming process and may incur substantial legal fees.

Seek Assistance

Navigating property issues after separation in Australia can be complex and emotionally charged. While changing the locks after separation may be legally permissible in certain situations, it is essential to consider the implications and consequences of such actions, especially in cases involving joint ownership, children, or leased properties.

If in doubt, you should seek legal advice and explore mediation or negotiation options to resolve disputes amicably whenever possible. When disputes cannot be resolved privately, turning to the court system for orders regarding property occupancy is an option.

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.

The importance of estate planning before capacity becomes an issue

We should all plan for our future. Certainly, we should all have a current will, especially those of us who need to make special arrangements for the care of children or pets. Many of us would also benefit from making a formal arrangement to account for a time when we could find ourselves unable to make our own decisions. These arrangements have different names according to where you live in Australia, but they are alike in that they give authority to someone we trust to make decisions – whether financial or personal – in our best interests.

However, it is important to understand that these arrangements for the future can only be put in place while you have the necessary mental capacity. Your loved ones cannot make a will on your behalf or appoint a power of attorney or guardian if you begin to lose capacity to make decisions for yourself.

What Is the Presumption of Capacity?

You need legal capacity to make decisions when making a will, buying or selling property, taking out a loan or investing money, making a power of attorney, appointing a guardian, or entering into a contract.  “Capacity” requires the ability to understand the facts, evaluate the choices and their consequences, and make a decision based on a reasoned assessment.

In Australia there is a basic legal presumption that every adult has the mental capacity to make legal decisions for themselves. (This contrasts with the presumption that children lack this capacity and cannot make important decisions without the input of their parents or guardians.) However, this presumption of mental capacity in adults can be rebutted if there is evidence that the adult does not have the necessary decision-making ability. An adult may not have mental capacity to make certain decisions due to a lifelong intellectual disability, an acquired brain injury, an age-related cognitive condition, or a mental illness.

How Do You Determine If Someone Has Capacity?

Unfortunately, it is not an easy task to determine if someone has mental capacity. In fact, there is not even a single legal definition of what constitutes “mental capacity”. This is because different forms of capacity are needed to make different types of decisions.

The lack of a single definition of mental capacity can make it difficult for everyone involved to determine if someone has the capacity to make a particular decision. However, there are some general principles that can help clarify what is meant by legal capacity, and what happens when there is a question about the legal capacity of an adult.

What Capacity is Required?

It is important to understand that capacity is not a diagnosis, where someone is assessed as “incapable” and is then unable to make any legal decisions. Rather, if there is a question about the capacity of a person, then an assessment is made on a case-by-case basis as to whether the person has the capacity for each particular decision. This assessment is often made by the solicitor involved in the legal matter and is usually based on expert advice from a medical report.

For instance, if someone approaches a solicitor to make a will, the solicitor starts by assuming that the person has the necessary capacity. If there is evidence to rebut this presumption (such as the person has difficulty understanding the purpose of a will when it is explained to them) then the solicitor may ask the person to obtain a medical assessment. This assessment will focus on the specific question: Does this person have the capacity to make a will?

Some legal decisions require more capacity than others. For instance, it is broadly understood that a person requires more capacity to manage all of their financial affairs than to simply make a will. Conversely, a person who is deemed incapable of making a will may still have the capacity to revoke an existing will; and someone with the capacity to make a will may not be able to appoint an enduring power of attorney. These comparisons are based on the complexity of the information that the person must be able to understand and evaluate to make the decision that is right for them.

What Can I Do for My Loved One?

Solicitors often have requests from someone who wants to be appointed as the power of attorney for a loved one who is losing capacity. It is important that everyone involved understands that only the person who is the subject of the power can appoint the attorney, and they must do this while they still have the capacity to make the decision.

It is also worth noting that appointing a power of attorney is considered a complex decision, at least relative to decisions such as making or revoking a will. This is because the decisions contained in a will cannot harm the will-maker but a power of attorney exposes the person to a risk of harm and exploitation.

If you have a loved one who has lost capacity to manage their own affairs, and they do not have arrangements in place to have someone make a decision for them, then you will need to seek an order from the Tribunal in your state or territory to give you (or someone else) the authority to make decisions for them.

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.

Beyond Reasonable Doubt – Proving the Elements of a Criminal Offence

A criminal prosecution must prove their case to a high degree of certainty, so that there is no reasonable doubt in the mind of the jury as to the guilt of the accused. This serves as a safeguard against wrongful convictions and ensures that the burden of proof remains on the prosecution throughout a criminal trial.

Burden of proof / standard of proof

Burden of proof and standard of proof are two key concepts in criminal law. The burden of proof refers to the obligation of the prosecution to prove their case against the accused. The standard of proof refers to the level of proof required to establish guilt in a criminal trial.

In Australia, the prosecution bears the burden of proof. It is up to the state to present evidence that is sufficient to convince a jury or judge that the accused committed the crime in question. The accused does not have to prove their innocence.

The standard of proof that the prosecution must reach is very high. Beyond a reasonable doubt requires a very high level of certainty, although not an absolute level of certainty. It is a higher standard of proof than the “balance of probabilities” standard that is used in civil law cases.

Why such a high burden of proof for criminal charges?

The reason the burden of proof rests on the prosecution to such a high standard is to ensure that innocent people are not wrongly convicted of crimes. Criminal convictions can have serious consequences, such as financial penalty or imprisonment, and can have a long-lasting impact on a person’s life. Before imposing such serious consequences, the prosecution must produce evidence that is strong enough to eliminate any reasonable doubt that the accused did not commit the crime.

Elements of a criminal offence

The elements of a criminal offence are the specific components that the prosecution must prove beyond a reasonable doubt in order to obtain a conviction for that offence.

In general, criminal offences are composed of two key components: the physical acts that constitute the offence (the actus reus) and the mental state or intention to commit the act (the mens rea). The prosecution has the burden of proving both the physical acts and intention of each element of a criminal offence beyond reasonable doubt. For example, in a charge of theft, the prosecution must prove that the accused person took someone else’s property without their consent, and that they intended to permanently deprive the owner of that property.

What about strict liability offences?

With certain types of offences, known as strict liability offences, the prosecution does not need to prove intention. Strict liability offences are those where the accused person can be convicted based solely on the physical act or conduct that constitutes the offence. In other words, the prosecution does not need to prove that the accused person had the intention or knowledge to commit the offence.

Strict liability offences are typically minor offences, such as traffic violations, and are often designed to protect public safety or to enforce regulatory compliance. Examples include speeding, parking violations, and breaches of certain environmental regulations.

The rationale behind strict liability offences is that these offences do not require proof of intention because they are generally minor offences that do not carry significant penalties or imprisonment. It is important to note that with strict liability offences the accused person may still be able to argue that they did not commit the actual act (or that there was a reasonable excuse or defence for their conduct).

Defences

In criminal law, the prosecution must prove their case beyond a reasonable doubt in order to obtain a conviction. However, the accused person is entitled to raise defences to the charges against them. If the defence can raise a reasonable doubt as to any element of the prosecution’s case, the accused person may be acquitted. Some common defences that can raise reasonable doubt in a criminal case include alibi, self-defence, duress, insanity, mistake of fact, and necessity.

It is important to note that the burden of proof still lies with the prosecution, even when the accused person raises a defence. In other words, it is not necessary for the accused person to prove their defence beyond a reasonable doubt; rather, it is up to the prosecution to prove that the defence is not valid.

Case example

One notable case in Australia that illustrates the application of the standard of proof beyond a reasonable doubt is the case of R v. Chamberlain. In this case, a family was camping in Uluru when the mother reported that a dingo had taken their infant daughter from their tent. Despite extensive searches, the baby’s body was not found, and the mother was subsequently charged with murder.

At her trial, the prosecution argued that the mother had killed her child and they presented various pieces of circumstantial evidence to support their case. The defence argued that a dingo had taken the child, and they presented expert evidence to support this theory.

After a lengthy trial, the jury found the mother guilty. This conviction was based overwhelmingly on circumstantial evidence, which the jury considered sufficient to overcome any reasonable doubt. However, six years later, a piece of clothing identified as belonging to the infant was found near a dingo lair, which supported the defence’s theory. The mother’s conviction was subsequently overturned, and she was released from prison, because the existence of the clothing gave rise to a reasonable doubt that had previously not existed.

Conclusion

While the criminal law is in place to protect the community and punish those who commit serious crimes, the system is imperfect and there are measures in place to help ensure those charged with a criminal offence have certain protections. The job of a criminal defence lawyer is to force the prosecution to prove every element of a crime, and to help the court understand the circumstances of a person who has been charged.

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.

Subpoenas and family law court proceedings

Subpoenas play a very important role in discovering evidence and information in family law matters, especially when the other party is not complying with requests for information.

There is a lot of work involved in applying, filing, and serving a subpoena, which can quickly become a complex exercise. Generally, subpoenas should only be used as a last resort, and we recommend seeking legal advice before applying for a subpoena.

What is a subpoena?

In essence, a subpoena compels a person to produce documents or give evidence. It is a legal document issued by the court at the request of a party to the proceedings. The court does not issue subpoenas unless requested to do so.

An example of when you may wish to request a subpoena in your family law matter, is when the other party refuses to disclose their financial documents, such as bank account statements. Once issued, the subpoena can be served to the other party’s bank, requiring them to produce the other party’s bank statements directly to the court.

Generally, you should take all reasonable steps possible to extract information you need from the other party before applying for a subpoena.

Types of different subpoenas in family law

  1. A subpoena for production. This is where a party is ordered to produce documents by the court, such as bank accounts, superannuation details or any other thing described in the subpoena, by a specific date and time. The court will specify when the documents or things are to be provided.

 

Subpoenas must specifically state the type of document sought otherwise the other party may dispute the validity of the subpoena. It is vital the subpoena is served on the person it is intended for by ordinary service, at least ten days before the date they are required to produce the material.

 

  1. A subpoena to give evidence. This is an order for someone to attend court to give evidence. A party that has been subpoenaed to give evidence must attend court on a date and time specified, unless excused by the court. It is important that the subpoena is served on the named person by hand at least seven daysbefore they are required to give evidence.

 

  1. A subpoena for production and to give evidence is a combination of the above two subpoenas. You should not issue a subpoena for both production and to give evidence if producing the documents on their own would be sufficient to obtain the desired information.

If you believe you may need to apply for a subpoena, we recommend you speak to an experienced family lawyer.

Filing a subpoena

The original subpoena must be filed at the Federal Circuit and Family Court of Australia (FCFCA) registry. It is important to file sufficient copies for the subpoena to be served on each party in the proceedings, especially for the person or organisation being asked to produce material.

Filing a subpoena is different to filing other family law documents. You cannot file or upload the document onto the online court portal as with other family law documents. The subpoena must be emailed directly to the relevant Court Registry. We also recommend that a letter in support of the subpoena accompanies the email. If the subpoena is not correctly filed, it may have no legal standing.

What is ’conduct money’?

Conduct money is money that is paid to the named person on the subpoena to help cover their costs in complying with it.

Conduct money must be paid to cover the costs of traveling from a person’s home to court if they have been served with a subpoena to give evidence. They must also be provided with a reasonable allowance to cover accommodation and meals during the period of attendance at court.

Conduct money must be paid to cover costs of identifying, photocopying, and collating material when a subpoena requires a person to produce information. To help speed up the completion of the subpoena, you can provide a cheque for the conduct money together with the subpoena when you serve it on the named person.

What happens once a subpoena is served?

If a subpoena is filed and served in accordance with the rules, and conduct money is paid, the named person must comply with the subpoena. However, the named person may object to producing a document if they consider the document requested is too broad, is irrelevant, or covered by privilege. If you have been served with a subpoena and you believe that these circumstances apply to your situation, we recommend you obtain legal advice.

Once all the material has been produced in response to the subpoena, you may file a Notice of Request to Inspect the material. When leave is granted to inspect, each party may make an appointment to view the material.

You are allowed to issue a maximum of five subpoenas. If you would like to issue more than five, you must seek leave from the court.

Conclusion

Preparing, applying, filing, and serving a subpoena can be a complex process. A subpoena must be the correct type and suitable for your circumstances. Subpoenas should only be used when you have exhausted all other avenues to obtain information from the other party to your family law matter.

This information is for general purposes only. We recommend seeking legal advice before applying for a subpoena to ensure the subpoena is prepared and served correctly the first time.

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.

When is a guarantee unenforceable?

A guarantee is a binding promise of one person (the guarantor), to be answerable for the debt or obligation of another (the debtor), if that other defaults. Guarantees become enforceable by the person to whom the guarantee has been given (the creditor) when debtors have defaulted on their obligations.

In this article, we consider the circumstances where a guarantee may be unenforceable.

Formal requirements

A guarantee is a contract and will not generally be enforceable unless all the formalities of contract formation have been satisfied. As such, like all other contracts, a contract of guarantee must be supported by consideration passing from the creditor to the guarantor, unless the contract takes the form of a deed.

Typically, a guarantee is given in consideration for the creditor agreeing to enter into some type of agreement with the debtor at the request of the guarantor. Accordingly, a guarantee should proceed the provision of credit otherwise a guarantor can argue that it received nothing in exchange for giving the guarantee and the document will not be binding.

In addition to the above:

  • in states where the Statute of Frauds continues to apply, guarantees are required to be in writing; and
  • if obligations of co-guarantors are joint and several, there is authority that a guarantee is not binding unless each guarantor named in the document executes it.

Enforcement of guarantees

Even if a guarantee has been created in a manner which the law of contract considers to be binding, other laws are available to guarantors to avoid the obligation the guarantor has agreed to take on in the guarantee. These laws, which are discussed below, are found in legislation as well as the common law.

Misleading or deceptive conduct

Like any other contract, a guarantee can be set aside on the grounds that a party has entered into it acting on the misleading and deceptive conduct of the creditor or debtor.

Non-Disclosure

Creditors have a limited general duty of disclosure to a guarantor. Guarantees have been set aside on the basis of a failure by the creditor to disclose unusual information. Furthermore, if a guarantor asks a question of the creditor, the creditor must answer it truthfully. A creditor must also disclose the truth about any misapprehension or unfounded assumption a guarantor may be acting upon.

Duress or Undue Influence

If a guarantee is procured by duress or undue influence by the creditor or debtor, it may be voidable. To succeed, a guarantor would need to show that the provision of the guarantee was not an independent act of the guarantor, acting of its own free will and based on full information.

Married Women

In Australia, where a creditor relies upon the husband to procure his wife’s consent to act as guarantor and there is actual undue influence by the husband, the transaction may be set aside by the wife unless she has received competent and independent advice.

In the absence of undue influence, the Courts have found that it would be unconscionable for a creditor to enforce a guarantee against a wife if she fails to understand the significance and effect of the transaction.

Unconscionable dealing

This is the most utilised ground for seeking to set aside a guarantee. Where it can be established that a guarantor was under a special disability or disadvantage in dealing with a creditor and the creditor seeks to take advantage of this, a court may set aside the guarantee. Examples of circumstances involving unconscionability include poverty, sickness, age, drunkenness and/or illiteracy.

Statutory relief against unconscionable conduct is provided by the Australian Securities and Investments Commission Act 2001 (Cth), the Competition and Consumer Act (Cth), and the Corporations Act 2001 (Cth) and, in NSW, by the Contracts Review Act 1980 (NSW).

Non est factum

This defence focuses on the absence of any consent of the guarantor to the document signed. It is available to those who are unable to read due to blindness or illiteracy and to those who are unable to have any understanding of the significance of the transaction because of some other disability.

Illegality

A contract of guarantee can be unenforceable because of illegality. Some examples include:

  • where the making of the guarantee is expressly or impliedly prohibited by statute; and
  • where the effect of the guarantee is contrary to public policy or infringes public policy.

Conclusion

If you are seeking to obtain a guarantee or become a guarantor, we recommend that you seek legal advice.

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.