Archive for the ‘Newsletters’ Category

Accessing digital assets – estate planning essentials

The recent death (or purported death) of Gerald Cotton, former Chief Executive Officer of Canadian cryptocurrency exchange company, Quadriga CX, emphasises the importance of planning your electronic after-life.

Mr Cotton’s death in India at the age of 30, has not only raised suspicion as to its authenticity (and allegations of an exit scam), but reiterated the chaos that can be created if digital assets have not been considered in an estate plan.

Mr Cotton was the sole custodian of encrypted passwords ‘protecting’ over $200 million worth of digital assets. His untimely death has left numerous Quadriga customers unable to access their assets with trading on the Quadriga platform suspended while authorities try to work out where to next.

Mr Cotton’s widow states that she played no role in the running of Quadriga and, despite efforts, has been unable to unlock the laptop used by Mr Cotton nor access any of his accounts.

The digital assets referred to in the Quadriga saga comprise cryptocurrency (virtual currency created and stored electronically such as Bitcoin, Litecoins and Ethereum). The cryptocurrency system is decentralised and not subject to a governing authority, raising unique challenges in identifying and ‘locating’ the assets.

Regardless of how the Quadriga saga unfolds, it is a timely reminder of how important it is to consider what happens (or should happen) to our digital assets when we die.

What are digital assets?

A person’s ‘digital life’ may encompass a range of online transactions, activities and accounts such as:

  • cryptocurrency;
  • financial assets including online bank accounts and shares;
  • intellectual property attached to domain names or online literary works;
  • online sporting and gaming accounts;
  • loyalty programs such as Flybuys, Rewards and Frequent Flyers;
  • online shopping accounts such as eBay and Amazon;
  • personal / business social media accounts such as email, Facebook, Linked-In.

All should be considered, and included, in an effective estate plan.

Issues unique to certain digital assets

Traditional cash-based assets such as money deposited in a bank, shares or other paper-based investments are held by title to the owner and can be transferred to the beneficiary of a deceased person with the relevant documentation.

Ownership of digital assets like Bitcoin, however, is anonymous with owners accessing their cryptocurrency with private keys which are used to unlock and deal with the assets. This information may be held on a computer device (via a digital wallet), on a USB, or printed separately. These assets can easily be overlooked or ‘keys’ misplaced, representing unique challenges when it comes to administering an estate.

Many digital assets are also held globally and may therefore raise jurisdictional issues from an estate planning perspective. In most instances, there is no uniform legislation governing access to a deceased person’s online accounts, so it is imperative that these matters are dealt with specifically in an estate plan.

Following are some steps you can take to ensure your online life is appropriately dealt with when you are gone.

Identify your digital assets

You should start by making a list of your digital assets (including online accounts) and determining what you would like to happen to them when you die.

Keep records of your online accounts and subscriptions including user names and passwords and store this information in a secure place.

Remember your online accounts and login details are likely to change frequently and your list should be maintained accordingly.

Understand your online accounts

Understanding how various accounts are dealt with by service providers will help to determine the type of action you would like taken when you die.

For example, Facebook account holders can advise in advance whether their account is to be deleted or memorialised. A memorialised account can provide a place for family and friends to share memories after a person dies on the deceased’s profile, and any content shared by the deceased person remains visible to those with whom it was shared. Nobody can log into a memorialised account.

Some loyalty programs such as Frequent Flyers may not be transferrable or redeemable after a person dies, so it may be wise to keep tabs on these types of accounts to utilise benefits regularly.

Include digital assets in your Will and appoint a technology custodian

Your Will should define and identify important digital assets and provide executors and trustees with appropriate directions and powers to deal with them.

Assign your executor or other trusted person, who is familiar with technology, the role of managing your online life after you die and ensure this direction is included in your Will.

Record your after-life technology instructions with respect to each account separately and ensure these instructions are secure, but accessible to your technology custodian. Never disclose passwords in your Will.

Online maintenance

Online accounts contain personal information which should be protected. Technology presents a real risk of identity fraud and unmonitored accounts can be particularly vulnerable. Regular monitoring and unsubscribing or deleting unused accounts can help minimise risk and keep your technology life tidy.

Regularly downloading photos and videos from your mobile to a storage device can ensure that memories are accessible to your family when you die.

Consider incapacity

It is also important to consider what happens to your online life in the event that you are incapacitated. Appointing a trusted person to manage your online affairs and including specific instructions in an enduring power of attorney is a logical step to ensure the appropriate management of your digital wealth if you are incapacitated.

The instrument making the appointment should be specific to the jurisdiction in which the assets are held, and in this respect, more than one document may be required.

Consider trusts

It may also be beneficial to hold substantial digital assets through a trust structure, if possible, for greater protection and better taxation outcomes. In doing so, the trust must be considered and dealt with under the Will, which should nominate beneficiaries of the trust or shares in the trustee company and include provisions to ensure the trust can achieve the desired objectives.

Conclusion

It has become increasingly difficult for executors, lawyers and family members to ascertain and access online assets after a person dies, with many financial and other institutions operating in a ‘paperless’ environment. Certain digital assets such as cryptocurrency can present additional problems for a deceased’s family.

Inaccessible online accounts make it difficult to identify assets, and leaving online accounts open indefinitely raises concerns of potential identity theft.

Good online management and ensuring your digital assets are included in your estate plan will help your executors and family manage your online life after you are gone.

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.

Breast Cancer Awareness Month October 2019

How to deal with an unfair Will

In this article we talk about dealing with an unfair Will. We are not considering the validity of a Will or being left out of a Will entirely – rather that the distributions made to one or more beneficiaries might be considered to be unreasonable in the circumstances.

There are many reasons why a Will might actually be, or be perceived as unfair, including:

  • The Will of the deceased person (testator) may be old and was not updated to take account of changing personal or financial circumstances. For example, the testator may have divorced and not revised his or her Will to take into consideration a new relationship or family members.

 

  • A child may have provided significant care during a parent’s final years whilst other siblings carried on with their lives without interruption. The ‘carer’ likely incurred personal and financial expense or missed opportunities due to these commitments, however the Will may not take this into account. In the circumstances, it might seem reasonable that the child be compensated for the gratuitous services.

 

  • A falling out often causes people to act rashly resulting in a hurried decision to cut somebody out of a Will. Even after conciliation, the testator may not turn his or her mind to reinstate that person as a beneficiary.

 

  • The testator may have been unduly influenced or simply had a favourite child to whom he or she chose to benefit at the expense of others. Alternatively, a widow may be left wanting with a greater share of assets being left to the testator’s children or others.

Whatever the reason, an unfair Will raises questions that can no longer be answered, and creates uncertainty between the beneficiaries. If you relate to any of these situations, you may find comfort in knowing that there are ways to deal with an unfair Will.

What can you do about an unfair Will?

The concept of ‘testamentary freedom’ means that people should be free to determine how their assets are dealt with after they die.

Traditionally, Courts have been hesitant to interfere with this principle. However, society’s views and the concept of ‘family’ have changed immensely over the years.  Consequently, a Court has discretion to change the Will of a testator to alter the distribution of his or her estate where a moral obligation to provide for an eligible person exists and the Will fails to provide for the person. This is known as a Family Provision claim.

How is a Family Provision claim made?

Three main steps are involved in making and determining a Family Provision claim.

  1. You must be an eligible person.
  2. It must be shown that at the time of the deceased’s death, he or she had a duty to provide for your proper maintenance and support and the distribution proposed under the Will fails to do that.

 

  1. If the above two elements are satisfied, the Court will determine an appropriate adjustment in the circumstances taking into consideration the size of the estate and the interests of other beneficiaries or claimants.

The definition of an eligible person and the timeframes within which to make a Family Provision claim, differ between State and Territory jurisdictions.

Usually, a spouse, former spouse, de facto partner or child of the deceased will be an eligible person. Step-children, grandchildren, parents, siblings and persons in a ‘close personal relationship’ or who lived in the same household as the deceased, may in some circumstances and jurisdictions, also be eligible.

Your lawyer will assist in determining your eligibility to make a Family Provision claim and advise you on the time limitations applicable for your area.

Proving a Will is unfair

Once eligibility criteria are satisfied, a range of factors are considered in determining whether the Will is unreasonable and if so, what adjustment should be made.

The Court assesses the degree to which the deceased had a moral obligation to provide for the claimant in light of the proposed distribution of the estate. The claimant’s financial situation is taken into account as are the competing financial needs of other beneficiaries.

The Court looks at the Will and any evidence regarding the deceased’s obligations and intentions with respect to the claimant. The person’s character and conduct are relevant as is the nature and length of the relationship with the deceased. The claimant’s age and whether he or she has a physical or mental disability are also factors.

Financial and non-financial contributions made by the claimant to the property of the deceased person, or to the welfare of the deceased person or his or her family, are also important considerations.

Mediation is usually compulsory before a Family Provision claim proceeds to hearing. Settlement out of Court is often preferable, particularly when it appears obvious that a claim is justified and the estate assets can meet that claim. The executor’s role is to preserve the assets of the estate and an out-of-Court settlement is likely to assist in protecting assets from being depleted by legal costs incurred by going to Court.

Are there other ways to remedy an unfair Will?

Subject to certain conditions, a Deed of Family Arrangement can be used to document an agreement reached between the beneficiaries to distribute the estate assets contrary to the provisions of a Will.

All beneficiaries must be over 18 years and have full legal capacity. The parties (beneficiaries, executors and third parties, if relevant) should seek independent legal advice.

Where the parties are agreeable, or at least open to negotiation, a Deed of Family Arrangement can be a practical and cost-effective way of mitigating a Family Provision claim by remedying an unfair distribution under a Will.

Good legal advice is essential as such arrangements may have stamp duty and taxation consequences which must be addressed prior to formalising the agreement. The deed will also need to protect the executor from future claims or liability arising under the Will.

Conclusion

If you are a relative or somebody who shared a close relationship with a deceased person and feel that the Will is unfair, then you may be able to make a Family Provision claim. Your lawyer will discuss the eligibility criteria and assist in making the claim or negotiating a settlement with the estate.

It is important to try to avoid Will disputes arising after your death. This can be achieved by ensuring that your Will is up to date and takes account of changing circumstances in your life. Your lawyer can advise on structuring your Will to limit the possibility of a future Family Provision claim.

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.

We’re still friends, why do we need a ‘legal’ property settlement?

Many couples separate on good terms, which is great. The breakdown of a relationship can be difficult, however putting differences aside to move forward can be beneficial, particularly where children are concerned.

Ex-partners who remain on good terms may choose to make informal arrangements regarding the division of their property. However, the failure to legally document a property settlement can be unwise, particularly where the parties have acquired assets and / or liabilities, or where either have had their own assets prior to the relationship.

In most cases, even if you are a ‘happily separated couple’, there are many reasons to seek independent advice and have your financial affairs legally finalised. Following are some of these reasons.

Stamp duty concessions

The transfer of certain property, particularly real estate, is generally liable to stamp duty. However, certain exemptions from duty apply for transactions that are documented in a financial agreement or consent orders pursuant to the Family Law Act 1975 (Cth).

The exemptions are reflected in stamp duty legislation across different jurisdictions in Australia and can result in substantial savings. An informal agreement does not meet the prescribed requirements to obtain these concessions.

Taxation implications

Understanding the tax implications of a proposed property settlement and structuring the division of assets accordingly can have a significant impact on the net result for both parties.

Capital Gains Tax (CGT) is the financial gain made on the disposal of an asset. It is assessable income and must be included in a tax return.

Although the transfer of a matrimonial home between a separating couple does not generally attract CGT under the main residence exemption provisions, CGT liabilities may be triggered when transferring assets such as investment properties, collectables and certain other personal items. The Income Tax Assessment Act 1997 (Cth) however provides roll-over relief pursuant to a financial agreement or consent orders made under the Family Law Act. This means that any CGT liability is deferred until such time as the asset is later transferred by the party acquiring it, although the asset will remain subject to the same CGT conditions as it was before the transfer.

A potential future CGT liability is an important consideration when negotiating a property settlement. Care should also be taken when dealing with companies and trusts where various transactions could raise CGT issues.

Although family lawyers do not provide financial advice, they can flag potential tax issues and recommend working with an accountant to ensure a property settlement delivers the most viable results and avoids, wherever possible, unexpected tax liabilities.

Claims on post-separation assets

An informal property settlement is not legally recognised as bringing the couples’ financial affairs to finality, even if negotiations have been put in writing. Not only is an informal agreement insufficient to obtain relief from stamp duty or relevant tax exemptions, the parties are unprotected against a range of potential issues down the track. These include a subsequent claim by either party on post-separation assets, income and inheritances. The parties are also left vulnerable should one of them become bankrupt and the joint ownership of assets has not been severed.

The failure to formally discharge obligations under a joint loan or guarantor arrangements can also leave a party in a precarious financial state.

An informal settlement may not preclude one party, particularly if his or her financial circumstances change, from applying for a different division of property through the Court at a later time.

Finalising your property division

Once separated parties have agreed on the division of assets and liabilities, and obtained independent legal and / or financial advice, the negotiations can be made legally binding through a financial agreement or by consent orders.

A financial agreement is a contract between the parties – each have certain rights and responsibilities and must perform their obligations according to its terms. Financial agreements are not approved or registered in Court but, provided they are properly prepared, and each party obtains independent legal advice, they are generally enforceable by a Court.

Consent orders are similar to financial agreements however a Court must approve the proposed orders. The parties to consent orders do not need to attend Court for the orders to be finalised.

Financial agreements or consent orders may provide for a range of matters concerning the division of assets and liabilities, including:

  • the transfer of property from one party to the other;
  • the payment of funds in exchange for the transfer of property;
  • the sale of real estate or other property including terms regarding the appointment of an agent, method of valuation and distribution of surplus funds;
  • the splitting of superannuation;
  • requirements for paying out loans, credit cards and closing bank accounts;
  • financial support (maintenance) of one spouse by the other; and
  • any incidental issues.

Conclusion

Generally, family lawyers will support a reasonable agreement reached between a separating couple. In doing so however, they will ensure their clients are fully aware of the implications of a proposed property settlement, flag potential taxation issues and address future matters that may not have been contemplated between the parties. The negotiations can then be recorded in a legally binding agreement that meets the requirements for stamp duty concessions and, where relevant, tax relief.

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 secretly record my spouse?

We’ve all had times when we can’t recall a conversation someone else swears we had. Often, one person in a relationship is more adamant about their memory than the other person. Usually, those mini-disputes are minor blips in an intact relationship. But what if it’s no longer an intact relationship? What if the “he said/ she said” dispute becomes part of family law proceedings?

One party might be tempted to secretly record their conversations with their ex-spouse or partner. But, is that lawful, and even if it is, is it a good idea?

Is it lawful to intercept a phone conversation?

The short answer is no. It is a federal offence to intercept (or tap) a phone conversation or other form of telecommunication. There are, of course, exceptions for ASIO, the police and similar organisations, but those exceptions wouldn’t apply in a family law situation.

Similarly, Australian law generally prohibits the recording of a private conversation between other people, to which the person doing the recording was not a party.

But what if you’re a party to the conversation?

Whether or not it’s lawful to secretly record a conversation (phone or otherwise) to which the person doing the recording is a party depends on the State or Territory in which the recording takes place. That is, such secret recording are permissible in Victoria, Queensland and the Northern Territory. However, it is prohibited in the other States and Territories – the ACT, New South Wales, Tasmania, South Australia and Western Australia.

The penalties for breaching the laws about intercepting or secretly recording a conversation vary, but can include paying damages to the other person and a term of imprisonment.

Can a secret recording be used as evidence in the Family Court?

Again, that will depend on where the recording took place and whether it was lawful in that State or Territory. In other words, if the secret recording took place in Victoria, Queensland or the NT and was, therefore, lawful, that recording could be used as evidence in family law proceedings.

However, if the recording was made in one of the States or Territories in which it is prohibited (ACT, NSW, Tasmania, SA and WA), the Court would have discretion whether or not to admit the recording into evidence. The Court would weigh up the benefit to the determination of the case in admitting the recording evidence, compared to the detriment to the parties and the justice of the case in allowing one of them to rely on illegally obtained evidence. Further, just because the illegal secret recording is admitted into evidence, the person who made the recording may still be liable to prosecution or damages for their offence.

Even if it’s lawful, should you do it?

The answer to this question will, of course, depend on the particular circumstances of the individual case. In a case where there are serious, regular disagreements about who said what and when, perhaps because drug or alcohol abuse or significant mental illness are involved, secretly recording conversations might be justified, in those jurisdictions where it is legal to do so.

However, even in cases where the secret recording of conversations might be tempting or may even seem warranted, before embarking on that course of action, the person wishing to do the recording should consider the future impact of considerable breakdown of trust in their relationship with the other person. It would be difficult, if not impossible, to continue to trust someone if you find out they have been recording their conversations with you without your knowledge. Ongoing trust between a separating couple is particularly important where children are involved and the couple need to share a parenting relationship into the future.

A middle ground option to secretly recording conversations with an ex-partner, regardless of whether or not it is lawful to do so in the particular jurisdiction, would be to make detailed notes of the conversations, as soon as possible after the conversations have ended. Such notes would be of significant benefit in preparing evidence for any family law proceedings, without jeopardising trust by secretly recording the conversations.

Conclusion

Whether or not it is lawful to secretly record a conversation, phone or otherwise, with an ex-partner depends on the State or Territory in which the recording is made. If the recording is unlawful, not only is there a risk that it will not be admitted into evidence in family law proceedings, the person making the recording could be liable to both civil damages and criminal prosecution. Even if it is lawful to secretly record a conversation with an ex, it isn’t necessarily a good idea to do so. A safer course of action might be to make notes of, rather than secretly record, the conversation.

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.

Risks of purchasing property after separation and before financial settlement

If you have recently separated and wish to move on with your financial matters, it is important to close off on your previous property affairs with your ex-partner first.

Whilst it might be tempting to purchase real estate or other assets, particularly if you find a ‘great buy’, there can be issues if you do so before finalising property matters with your ex.

What are the issues?

The Family Law Act 1975 (Cth) requires parties to make genuine efforts to resolve disputes and to follow pre-action procedures before commencing Court proceedings.

Part of this process includes a duty of disclosure – parties must exchange information and documents (whether or not these are known to both parties) that are relevant to an issue in the case.

The disclosure obligations exist from the beginning of the matter and continue until the case is resolved. This means that a party must disclose new information when certain circumstances change or further documents that come to a person’s attention.

Disclosure is important so that an understanding of the parties’ asset pool can be ascertained and the parties properly advised of their legal rights and entitlements.

The acquisition of a new property will certainly fall within the disclosure requirements whether or not you consider your ex-partner should be privy to the details. Consequently, if you purchase property, either alone or with a new partner, this fact will need to be disclosed and the property will become part of the asset pool.

Disclosure will mean providing the address, purchase price and details of any loan or mortgage over the property, and of course details of any third party who is registered on the title. This is unlikely to be ideal however failure to disclose the new acquisition will be considered non-compliance with your obligations and may attract serious penalties.

Whilst the Court has a discretionary role in family law matters and will take into consideration the circumstances and financial contributions towards the new asset, it is safer to be certain that the acquisition of new property does not adversely affect your property settlement rights. Consequently, it is advisable to wait for a clean break before jumping into the market again.

Settling your financial affairs out of Court

Even if you and your ex-partner agree on how your property should be divided it is important to formalise your negotiations through a financial agreement or by filing consent orders in the Court.

A financial agreement (often referred to as a binding financial agreement) formalises how property is to be divided. The agreement may include the transfer or sale of real estate or other assets, the distribution of proceeds from the sale, the paying out and closing of credit cards or other loan accounts, the transfer of liabilities between the parties and the ongoing payment towards certain expenses.

When negotiating the agreement, parties must be honest in their dealings and give proper disclosure of their assets and financial resources.

Each party must obtain independent legal advice and, if prepared in accordance with the statutory requirements, financial agreements can be a less formal and cost-effective solution to dividing property. The agreement will be binding on the parties with the same force as any other contract.

Alternatively, separating couples may be advised to have their agreement endorsed by the Court through consent orders. This is a more formal process because the Court will need to approve the proposed orders.

An application for consent orders must include full financial disclosure by both parties and the Court will only approve the orders if, on the information provided, it is just and equitable to do so.

Because of the Court’s involvement in consenting to the orders, in certain circumstances, they can provide greater finality than a financial agreement.

Time limits

Separating parties should be aware of the time limits applicable in commencing proceedings under the Family Law Act 1975 (Cth) for a financial property settlement.

The grant of a divorce triggers a 12-month limitation period within which to commence proceedings for property settlement or spousal maintenance.

For de facto partners, proceedings must be commenced within 2 years of separation.

Whilst the Court may grant leave to apply out of the statutory time limits for extenuating circumstances, parties should endeavour to resolve their financial affairs without delay.

Conclusion

Full financial disclosure is essential to enable a lawyer to properly advise a party on his or her rights or a Court to ascertain the property pool if proceedings are commenced.

Disclosure obligations must be followed even if the parties settle their financial affairs without going to Court, and the parties have an ongoing obligation to disclose matters until their property settlement is finalised.

The decision to resist purchasing a significant asset before you have finalised your property settlement is likely a wise choice.

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.

Queensland criminalises revenge porn

The issue of revenge pornography (‘revenge porn’) has received considerable attention in the press, not only in Australia but worldwide.

Broadly, revenge porn refers to sharing, revealing or distributing sexually explicit images or videos of a person through an internet service without that person’s consent, usually with the motive of causing humiliation, embarrassment and distress.

Whilst the conduct may occur in different circumstances and the motivations for distributing the images vary, the perpetrator is often a former partner of the victim, and the victim undoubtedly suffers long-lasting and traumatic effects.

Australia has a matrix of civil and criminal laws relating to image-based conduct over the internet. Although national laws presently exist to prohibit the use of a carriage service to offend, harass or menace another person, these laws have not effectively or specifically been utilised to target the issues associated with revenge porn.

Various state and territory governments are considering or have passed legislation that criminalises revenge porn, with Queensland now introducing new laws. The policy objective of the new laws is to fill a current gap by creating a specific offence regarding non-consensual sharing of intimate messages or threats to send intimate images. The offence relates to any intimate image no matter how it is captured or made.

New laws to criminalise revenge porn

The Criminal Code (Non-consensual Sharing of Images) Amendment Act 2019 incorporates provisions into the Criminal Code creating new offences.

Distributing an intimate image

A person who distributes an intimate image without the consent of one person in circumstances that would (reasonably) cause the other person distress will be guilty of an offence.

It does not matter whether the person distributing the image intends to cause distress or actually causes the other person distress.

Threats to distribute an intimate image or prohibited visual recording

A person who makes a threat to another person to distribute an intimate image or prohibited visual recording without the consent of the other person, in circumstances where the threat would (reasonably) cause distress to the person depicted (or person to whom the threat is made) and the threat is made in a manner that (reasonably) would cause the person to fear the threat will be carried out will be guilty of an offence.

It does not matter whether the intimate image or prohibited visual recording exists when the threat is made or whether the person who makes the threat intends to cause, or actually causes the fear.

In determining whether a person would reasonably be caused distress or fear the circumstances, as relevant to each offence, will be considered including:

  • the relationship, if any, between the parties;
  • the circumstances surrounding distribution of an intimate image;
  • the extent to which distribution of an intimate image interferes with a person’s privacy;
  • the circumstances surrounding the threat to distribute an intimate image or prohibited visual recording.

A child under the age of 16 years is considered incapable of giving consent.

Penalties

Offences under the new laws are punishable by up to three years’ imprisonment.

A court may also order the person convicted to take reasonable steps to remove, delete or destroy an intimate image or prohibited visual recording. Failure to comply with such an order is punishable by up to two years’ imprisonment.

The maximum penalty for the existing offences of observing or recording a person in breach of privacy and distributing prohibited visual recordings has increased from two to three years’ imprisonment.

What is an intimate image?

An ‘intimate image’ of a person is a still or moving image that depicts:

  • the person engaged in an intimate sexual activity that is not ordinarily done in public; or
  • the person’s genital or anal region, when it is bare or covered only by underwear; or
  • if the person is female or transgender or an intersex person who identifies as female, the person’s bare breasts.

The definition extends to images that are altered to appear as above or digitally obscured to portray that person in a sexual or intimate manner. Essentially, the definition captures images that are photoshopped or digitally modified if they otherwise represent the definition of an intimate image as described above.

What is a prohibited visual recording?

A ‘prohibited visual recording’ of a person is:

  • a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy; or
  • a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.

What is consent?

Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. The Act makes it clear that a person does not consent to the distribution of an intimate image if the person is under 16 years. A person does not consent if he or she is threatened or forced to do so.

Defences

It is a defence to a charge of an offence under the new laws if the conduct was for a genuine artistic, educational, legal, medical, scientific or public benefit purpose and the conduct was, in all the circumstances, reasonable for that purpose.

Conclusion

The internet provides an efficient means of producing and disseminating information – once loaded images can leave a digital footprint and for the victims of revenge porn, long-lasting torment.

Australia’s laws have been hard-pressed to keep up with technology and the matrix between state and federal legislation to deal with illicit conduct over the internet is arguably inconsistent and patchy.

It is anticipated Queensland’s new laws will give victims and potential victims of revenge porn better protection and some redress in an area that has been notoriously difficult to regulate.

Victims of revenge porn should contact the Police and are encouraged to obtain referral from their general practitioner or support groups for emotional assistance.

If you have been charged with a criminal offence you should obtain professional advice so you understand your legal rights.

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.

Centrelink Fraud

Centrelink fraud offences are among the most frequently prosecuted Commonwealth criminal offences. Sometimes the behaviour complained of is deliberate, but motivated by genuine financial hardship rather than greed. Sometimes it is quite accidental. Even individuals who have been inadvertently overpaid and are attempting to pay the money back may end up facing fraud charges. If you suspect that you are under criminal investigation for Centrelink fraud, you should seek immediate legal advice because there may be defences that can help you avoid criminal penalties including fines and imprisonment.

Centrelink Fraud Offences

Offences include:-

  • Failing to declare part-time earnings whilst on Newstart Allowance;
  • Failing to declare live-in defacto relationship whilst on Single Parenting Payment;
  • Obtaining a Disability Pension and failing to disclose full time employment;
  • Not declaring income from employment, investments or other sources;
  • Exaggerating a medical condition;
  • Submitting false or forged documents;
  • Obtaining payment for children not in your care;
  • Collecting rent assistance when rent is not being paid;
  • Using more than one name to access benefits; and
  • Over-claiming benefits without any present entitlement.

Centrelink Fraud offences are what are known as “full knowledge offences”. To establish that a crime has occurred, the prosecution must establish that the conduct was intentional and that the defendant knew or believed that he or she was not entitled to receive that money from Centrelink.

Defences and Mitigating Factors

  • Lack of knowledge or intention is the principal avenue of defence, but other circumstances may mitigate the penalties imposed. These include:
  • Personal financial hardship;
  • The amount of money obtained;
  • The length of the fraud;
  • False statements or any positive attempts to deceive (or the absence thereof); and
  • Any money paid back to Centrelink.

Whether the fraud was intentional or accidental, any overpaid entitlements will still have to be repaid.

If you are charged with Centrelink fraud, it is very important that you seek legal advice, especially if you have not previously done so.

There are four charges, with varying maximum penalties, that the CDPP commonly presses against alleged Centrelink fraud offenders:

 

  • Obtaining financial advantage (s135.2(1) of Criminal Code);
  • General dishonesty causing a loss (s135.1(5) of Criminal Code);
  • Obtaining a financial advantage by deception (s134.2(1) of Criminal Code); and
  • Obtaining property by deception (s134.1(1) of Criminal Code).

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email mail@powerlegal.com.au.

Buying and selling a property at the same time

Buying or selling property is widely accepted as one of life’s major stress factors. When you buy and sell property at the same time and try to complete both transactions together this can add considerably to the stress levels. This is known as a simultaneous settlement and is encountered often in the conveyancing process.

Why settle simultaneously if it is so stressful?

Most people are not in a financial position to buy a new property without first selling an existing property and rely on the funds from their sale before completing their purchase. Simultaneous settlements are ideal when the family home is sold (whether to upsize, downsize or relocate) and an alternate home is being purchased. If both transactions can settle at the same time, there are considerable financial and practical benefits:
• you only need to move once, saving time, removalist and / or storage costs;
• you won’t need alternate accommodation, saving on rental costs or avoiding the inconvenience of staying with family or friends until a new home is found;
• the loan for your existing home can be refinanced and replaced with a loan for your new property, in the same transaction;
• arrangements can be made to disconnect and reconnect services from your existing home to your new home, ideally, in one transaction.
What happens at a simultaneous settlement?

The sale of your existing property is completed at the same time as the purchase of your new property. These transactions are interdependent so need to be meticulously planned and coordinated – if there are delays or problems with one transaction then the other is also affected.
The circumstances of the other parties (i.e. the respective seller and buyer of your properties) are also relevant. If they are in a similar position, then their issues also become yours and a domino effect occurs.

On completion funds from the sale of your existing property are collected and, if a refinance is involved, applied towards your purchase. The mortgage over your existing property is released by your lender and a mortgage taken over the new property to secure the funds loaned.

Come settlement day, the transaction is usually orchestrated in a matter of minutes however the plan has been evolving for the past weeks or months.
Meanwhile, you have arranged for the disconnection and reconnection of services such as electricity and internet and await nervously with a moving truck full of furniture and a lifetime of memories, for the ‘green light’ from your lawyer.

The legal considerations
A simultaneous settlement has practical and financial benefits however it also has legal implications. If you choose to have your sale and purchase settle at the same time, your lawyer will advise you of the legal issues and assist in bringing the transaction together.
Once contracts exchange, the parties are legally committed to the transaction and face significant implications if they fail to proceed. For a purchaser, this generally means, at a minimum, forfeiting 10% of the property’s purchase price if the contract cannot be completed. Consequently, a purchaser should not commit to buying a property without assurance that the sale of an existing property is a ‘done deal’.

To protect your interests, a simultaneous settlement requires a simultaneous exchange of contracts with both providing for the same completion date. This is critical to avoid the risk of losing your deposit. Your lawyer can make the necessary arrangements and negotiate the appropriate conditions in the contract.
Alternatively, your lawyer may be able to negotiate the inclusion of a ‘subject to sale’ clause in a purchase contract if you haven’t sold your property yet. In most cases however, a vendor will not accept this, particularly in a competitive market where there are other buyers ready willing and able to enter an unconditional contract.
What are the options?

• Selling first and buying later may be a safer option for those on lower incomes or with less equity in their existing property. The down side of this is that you will need to arrange accommodation while looking for your new home. The pros are that the funds from your sale can pay out your mortgage with the balance going towards your purchase. If you have pre-approved finance from your lender you may also be in a more advantageous bargaining position in a competitive market.

If your buyer is not in a hurry to move into your existing home, you may even be able to negotiate a leaseback of your property until you find a suitable home.

If you need to move in a hurry for example, relocating for a new job, and you can’t sell quickly, renting your existing property on a short lease may also be a viable option.

• Buying first and selling later can be risky. Unless you are a cash buyer and / or own your existing property outright you will need to finance both properties. For most people this will require looking after two mortgages and / or obtaining a bridging loan which may not be an option for many people. It will however enable you to snap up the property you want when it is available and then reduce your financial commitments once your existing property is sold. It can also provide an opportunity to utilise market fluctuations to your advantage. If however holding two loans becomes increasingly difficult you may need to sell quickly accepting an offer below your expectations.

Conclusion

Your personal circumstances and the market should be considered when buying and selling property and choosing the option that is right for you.
The current market and property demand generally dictates how quickly you can sell and find an alternate suitable property. Your financial circumstances will also influence your options.
There is never a one-fit solution when buying and selling property at the same time. The most important thing however is to ensure that whichever option you choose you understand the legal and financial implications and are guided throughout the process.
A simultaneous settlement requires careful planning, good communication and negotiation skills and, importantly, a contingency plan. If one transaction falls over, then so does the other!
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.

Will a criminal conviction affect my Visa?

Section 201 of the Migration Act 1958 states that a person who has been convicted of a criminal offence in Australia, and who was a non-citizen at the time that they committed the offence, can be deported in certain situations and applies to both permanent residents and temporary visa holders.

For a person to be ‘eligible’ for deportation, he or she must:

  1. Have been convicted of an offence and sentenced to a period of 12 months imprisonment or more; and
  2. Have resided in Australia for a period less than 10 years, or for multiple periods that total less than 10 years.

Section 501 of the Migration Act also gives the Immigration Minister power to cancel a person’s visa if they do not pass the ‘character test’ which includes having a ‘substantial criminal record.’

A person has a ‘substantial criminal record’ if they have been:

  1. Sentenced to a term of imprisonment of 12 months or more;
  2. Sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
  3. Acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
  4. Found by a court to not be fit to plead in relation to an offence, and the court has nonetheless found that on the evidence available the person committed the offence, and, as a result, the person has been detained in a facility or institution.

If the Immigration Minister is satisfied that a person does not pass the character test because they have a substantial criminal record, the Minister must cancel their visa.

Alternatively, if the Minister ‘reasonably suspects’ that a person does not pass the character test, the Minister may cancel their visa – in other words, the Minister has discretion to decide whether or not the person should be deported.

What If I Don’t Pass the Character Test?

If your visa is cancelled due to your failure to satisfy the character test, you will become an ‘unlawful non-citizen,’ and will be immediately placed in immigration detention until you are deported or removed from Australia.

You will also be prohibited from applying for most types of visas while in Australia, and will generally be prohibited from returning to Australia in the future.

Will I Automatically be Deported if Sentenced to 12 Months Imprisonment or More?

If you have been sentenced to 12 months or more in prison, it does not automatically follow that you will be deported.

Rather, the Department of Immigration and Border Protection will consider a range of factors when deciding whether to deport you or revoke your visa.

These include:

  1. The nature of the offence;
  2. The circumstances of the offence;
  3. The magistrate or judge’s view of the offence;
  4.  The type and length of penalty imposed;
  5. Any evidence, or lack thereof, of rehabilitation;
  6. Prospects of reoffending;
  7. General deterrence;
  8. Criminal history;
  9. Public interest consideration;
  10. Family circumstances; and
  11. Australia’s international law obligations relating to refugees.

If the Department is considering deportation, an Immigration Officer will usually request further information.

If the Department decides that you are to be deported, you will receive a ‘deportation order’, or a ‘cancellation order’ if your visa is being cancelled.

Can I Appeal a Deportation or Visa Cancellation?

Depending on how the decision was made, you may be able to appeal the decision.

If the Immigration Minister signed a deportation order against you under section 201, you will be able to appeal the merits of the decision to the Administrative Appeals Tribunal (AAT).

You will also be able to seek a review from the AAT if a delegate of the minister decides to cancel your visa

If you decide to lodge an appeal to the AAT, you can ask for a ‘stay’ (suspension) of the deportation order until the review is completed. If the decision to cancel your visa has been made, you will have only 9 days from the date you are notified to seek a review from the AAT.

If, however, the Immigration Minister personally decided to cancel your visa under section 501, you will not be able to appeal the decision to the AAT. You can however, seek a judicial review from the Federal Court.

If you are a non-citizen and wish to receive case-specific immigration law advice, you may wish to consult a specialist Immigration Lawyer.

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email info@brisbanemigration.net.au.