Archive for the ‘Newsletters’ Category

Visas and the importance of ‘good character’

To be granted entry to Australia whether temporarily or permanently, whether you are a main applicant or an additional applicant, you will need to pass the character test set out in section 501 of the Migration Act 1958.

This character requirement attaches itself to the type of visas which are applied through the Public Interest Criterion (PIC) 4001. The onus is on the applicant to demonstrate that they are of good character. Applicants who fail the character requirement will have their visa refused or cancelled by either the Minister for Immigration and Citizenship, or the Department of Immigration and Citizenship (DIAC).

Consequently, the DIAC will consider your past and any present criminal conduct along with your conduct in general, in determining whether you are of good character. This means you will be required to disclose information about your past conduct including criminal convictions or charges, and the refusal or cancellation of any previous visas.

According to recent news reports, following recent amendments made to the legislation late last year, the Minister has cancelled as many Visas over the last 3 months as were previously cancelled over the past three years!

What constitutes failure of the character test?

 The Applicant will fail the character test if:

  • They have a substantial criminal record
  • They have been convicted of an offence while in immigration detention, escape from immigration detention, during the period of escape from immigration detention or have been convicted of an offence of escaping from immigration detention
  • There is a significant risk that the person will engage in criminal conduct (such as harassing, molesting, intimidating or stalking another person, or vilifying, inciting discord against a segment of the Australian community) or the person represents a danger to the Australian community.
  • Having regard to the person’s past and present general criminal conduct, the person is judged not to be of good character.

What is a ‘substantial criminal record’

A person will be judged to have a ‘substantial criminal record’ if they have been sentenced to:

  • Death or life imprisonment
  • A term of imprisonment for at least 12 months
  • Two or more terms of imprisonment, where the total of the terms is two years or more

You will also be judged to have a ‘substantial criminal record’ if you have been acquitted of an offence due to unsoundness of the mind, or insanity and as a result have been detained in a facility or institution.

What happens to a person who is excluded from Australia?

In plain terms it is severe. Any person, who has their visa cancelled on the grounds of substantial criminal record, past and present criminal conduct, or past and present general conduct, will be permanently excluded from entering Australia.

Why the increase in Visa Cancellations for Character Reasons?

The increase in visa cancellation numbers is a government response to national security concerns especially in the areas of organised crime and counter-terrorism.

Prime Minster Tony Abbott recently said the government aims to target “organisations and individuals blatantly spreading discord and division” and “include stronger prohibitions on vilifying, intimidating or inciting hatred” and made specific mention of the “hate preachers”.

Whilst recent visa cancellations are focused on organised crime, sex crimes and terrorism, it is possible that any person with criminal convictions outside of these offences can have their Australian visas revoked.

Recent security concerns have heightened the level of border protection, it is likely more cancellations will occur. Naturally, it is a good idea for all visa holders and applicants to stay out of trouble with the law in order to preserve your life and residence in Australia.

The importance of legal experience

If you need to complete a Visa Application or have received a notice requiring a response from the DIBP you should seek legal help.

We are experienced in assisting applicants with visa applications for Skilled Migration including Independent and State Sponsored visas, state sponsorship applications, Family Migration visas as well as employer-sponsored visas. We also assist applicants who have health or character concerns in a visa or citizenship application.

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.

Estate planning for blended families

Most of us appreciate the importance of making a Will and having an estate plan that sets out how we would like to provide for our loved ones when we die.

If, like many Australians, you belong to a blended family, there are additional considerations when planning your estate. Most typical will be ensuring that the competing interests of children from past and present relationships are addressed, whilst ensuring a current partner is provided for.

Following are our top estate planning considerations for members of a blended family.

Make a family tree and identify potential issues

Because of the complexity of some blended families, the importance of making a family tree cannot be over-emphasised. The tree should identify immediate family members, former spouses, children from past and present relationships (biological, adopted and step-children), as well as anybody else who is, or has been, financially dependent on the Will-maker.

Making a family tree helps to:

  • consider the testamentary wishes of each partner and identify those they wish to benefit from their estate;
  • acknowledge the potential for disputes and family provision claims and, as far as practicable, safeguard against these;
  • identify those that may have a moral claim on the Will-maker’s estate.

Look at your major assets

Real estate and superannuation interests are often our most significant assets. Understanding some legal concepts regarding these assets can greatly assist with planning your estate.

Real estate

If you hold real estate as a joint tenant, the principle of survivorship applies. This means that your share of the property will immediately vest in the surviving joint tenant when you die no matter what your Will states.

If this is not your intention, you and your partner may consider severing a joint tenancy and instead holding the property as tenants in common. In this case, either of you may leave your share of the property to whomever you wish by a direction in your Will.

Your lawyer can advise and assist in severing jointly held real estate.

Superannuation

A common misconception about superannuation is that it automatically forms part of your estate. This is not the case. A superannuation fund is only permitted to directly pay a death benefit to a ‘dependant’ of the fund member or otherwise, to the estate.

A ‘dependant’ includes a spouse (including a de facto partner of same or opposite sex), a person with whom the fund member had an interdependency relationship, a child of any age or a person who is financially dependent on the member. A child includes a biological child, adopted child, step child and ex-nuptial child.

Fund members can choose who receives their death benefits by completing a Binding Death Benefit Nomination. This circumvents the trustee’s discretion and directs it to pay benefits to the dependant nominated by the member.

In a blended family, it may be appropriate for fund members to direct the trustee to pay all or some of their death benefits to their child or children to guarantee that they receive an inheritance immediately after they die. In this case members will need to consider whether there will be sufficient funds for the surviving partner as well as the tax implications. Advice should be considered from a lawyer or financial professional.

Consider different types of Wills

An example of a simple Will for a married couple is one that provides for the estate to go to the surviving partner in the first instance and then upon his or her death, to their children. This may not be ideal for blended families as the children of the deceased partner will need to wait until the step-parent dies before inheriting under the Will. There is also a risk that the surviving partner may subsequently change his or her Will to the effect that the children of the partner who dies first miss out altogether.

Different types of Wills can be used to avoid these issues and your lawyer can advise on the most appropriate for your situation. The following are some examples.

Testamentary trust

A testamentary trust is a trust contained in a Will that is created upon the testator’s death. In the case of a blended family, a separate trust can be created for each child which effectively separates assets allowing each beneficiary to receive and deal with their respective share via an appointed trustee (which may or may not be the beneficiary).

Testamentary trusts can also provide for asset protection and have taxation advantages. They are however complex and require ongoing management. Consequently, the benefits should outweigh the costs of creating and administering the trust.

Mutual Wills Agreement

A Will may leave assets to each partner and, on the surviving partner’s death divide the combined assets between all children (from former and present relationships). This may technically be ideal however there is nothing to prevent a surviving partner altering his or her Will after the first partner dies, effectively leaving out a child or children of the first-deceased partner. A Mutual Wills Agreement can help to prevent this.

Essentially, the partners agree on the beneficiaries (for example children from both partners’ past and present relationships) and how their assets should ultimately be distributed. This is reflected in reciprocal Wills and a binding agreement to the effect that neither party will alter his or her Will after the other’s death.

The surviving partner has an obligation to hold the assets on trust for the beneficiaries named in the Will and is bound by that agreement. Those benefiting under the Will should be aware of the agreement so enforcement action can be taken if necessary.

Conclusion

Effective estate planning takes time and careful consideration. Every family is different and there is no one perfect solution. Talking to an estate planning lawyer helps to identify the potential issues that may arise and to devise strategies to address these issues to ensure that your intended beneficiaries are protected when you die.

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.

Protection from Cyberbullying – rights & remedies

‘Bullying’ is behaviour, whether physical, verbal, psychological or social, that is directed towards a person or group, with the intention to cause harm or fear. When this conduct is carried out using information and communication technology (such as over the internet or via a mobile phone), it is referred to as ‘cyberbullying’.

Depending on the nature, repetition and severity of the behaviour, cyberbullying may constitute a criminal offence.

When is cyberbullying a crime?

Under national laws, the Commonwealth Criminal Code Act 1995 provides that it is an offence to misuse telecommunication services. The ‘use of a carriage service in a way that reasonable persons would regard as being…menacing, harassing or offensive’ is an offence which attracts a penalty of imprisonment for up to three years.

A ‘carriage service’ includes the internet and mobile phone networks.

Consequently, although ‘cyberbullying’ is not specifically defined as an offence under national law, there are various behaviours that could be recognised as an offence, such as using a carriage service to:

  • make intentional threats to hurt a person or damage property in circumstances where the threat frightens, intimidates or annoys that person;
  • stalk a person – repeated unwanted attention that frightens or intimidates a person, such as unwanted emails, phone calls or text messages;
  • menace, harass or seriously offend a person – sending offensive messages or making posts that cause a person to feel anxious, humiliated or disgusted;
  • defame a person – publishing / posting false information about somebody else with the intention that it causes serious harm;
  • encourage somebody to suicide.

It is also an offence to access another person’s internet account without their consent.

In addition to Commonwealth laws, Australian states and territories have criminal laws that could apply to cyberbullying. These offences generally target stalking, harassment, threatening or intimidating conduct and defamation. Many of these laws were originally aimed towards domestic violence or relationships where there is an imbalance of power, however, in a technological environment, may extend to cyberbullying in certain circumstances.

Various jurisdictions have also introduced, or are in the process of amending or introducing, legislation to target more specific forms of cyberbullying such as the non-consensual sharing of intimate images (or ‘revenge porn’). These laws generally create offences that criminalise the non-consensual recording and threat or actual distribution of intimate images. The terminology and provisions vary between jurisdictions however persons convicted of offences under these laws may face heavy monetary fines and possible prison sentences.

What are your rights if you are cyberbullied?

You have a right to feel safe and not be bullied. There are things that you can do to protect yourself from a cyberbully.

Initially, you could ask the person responsible for the offending material to delete it.

In regard to social media websites, you can usually report bullying posts to the website administrator who will remove offensive material if it violates that website’s terms of use. Also, most social media websites enable you to block someone from contacting you.

If you are receiving bullying phone calls or text messages from someone you may be able to block them from contacting you using your mobile phone settings. You could also complain to your mobile network provider (eg Telstra, Vodafone, TPG or Optus). Your provider may decide to send the cyberbully a warning letter or suspend their phone number or terminate their contract.

If the above does not resolve the problem and you continue to feel that you are being cyberbullied, you should obtain legal advice as soon as possible.

You should keep any evidence of cyberbullying. For example, record the dates and times of any harassing phone calls, or take a screenshot (or print) bullying messages or posts. Your legal adviser can then tell you whether the conduct is likely to be considered criminal. (It also helps prove who was the source of the bullying and its exact nature.)

In the first instance, your legal adviser may decide to write to the person or people involved telling them that their actions could be a crime and letting them know that you will consider going to the police if they do not desist in their conduct. Often, the issue of a letter from a law firm which sets out the potentially criminal nature of the conduct may prompt a perpetrator to re-think his or her actions.

Remedies for cyberbullying

When cyberbullying involves making comments about you or posting pictures which damage your reputation, you may be able to sue the cyberbully for defamation or take other legal action against the cyberbully to obtain an award of damages. You should obtain legal advice if you wish to pursue these actions.

If you are cyberbullied by way of unwelcome sexual attention, sexual threats or discriminatory comments made by someone at your workplace or educational institution, you may be able to complain to your state or territory anti-discrimination body or the Australian Human Rights Commission.

Consequences of cyberbullying

The consequences of cyberbullying can be very serious. In addition to possible criminal charges being laid, a cyberbully may need to answer to claims for compensation and / or defamation.

In addition to phone network providers and website administrators suspending or cancelling a user’s account, they may decide to report that user to the police.

Most education providers and workplaces have anti-bullying policies in place to deal with cyberbullying. Cyberbully workers or students may be dismissed, suspended or expelled.

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.

What if the Police turn up at your front door?

The criminal process starts with the investigation of an actual or alleged crime. The power for Queensland police to search premises, question, arrest and / or detain a person comes from the Police Powers and Responsibilities Act 2000 (Qld).

These rules aim to balance the need for law enforcement with the protection of an individual’s civil rights. Being questioned and requested entry to a private residence by a police officer can be daunting and many people are unfamiliar with their rights when this happens.

This article explains a person’s fundamental right to silence and the circumstances under which police officers have the power to enter and search private property or to arrest a person of interest.

The right to remain silent

Understanding the right to silence is important for anybody involved in a criminal investigation. Generally, anything said to a police officer at any time may be used as incriminating evidence. What is said can also determine whether or not a person is charged or arrested.

Apart from some exceptions, a person has a fundamental right to remain silent whether they are stopped in public, have agreed to attend the police station or have been arrested.

Exceptions include answering basic questions such as a person’s name and address (in this case the police must warn a person it is an offence not to give the correct name and address) and place and date of birth (for drug-related matters), or when somebody is suspected of committing a traffic offence.

A person may also be required to disclose their identity and assist a police officer who believes on reasonable grounds that the person can help with enquiries regarding an alleged crime because the person was within its vicinity.

Generally, the police may approach and ask questions at any time however a person has the right to find out why they are being asked questions. If in doubt, the person should obtain legal advice.

Powers of entry and arrest

What are a person’s rights when a police officer requests access to private property? Are they obliged to let the police in? What if the police officer asks for the occupier’s son or daughter? The answer depends on the circumstances and whether the police officer has or is required to have a warrant.

The starting point is that police powers of entry are generally confined to emergency situations, for the purposes of arrest or detention, or to execute a warrant. If the police arrive on private property unannounced or uninvited, the reason for their attendance should be ascertained before allowing entry.

Warrants

A warrant is a document authorising the police to search a person, home or motor vehicle or to arrest a person and / or detain that person in custody. Anything found during a search warrant may be retained by the police.

If the police suspect that somebody with whom a person resides or is visiting has committed an offence, a search warrant may be obtained to search the premises and seize any items, or to arrest the person.

If the property is occupied the police officer must provide the occupier with a copy of the warrant. It is important to read the warrant carefully to confirm its scope. The action that follows will depend on the circumstances and the type of warrant that has been issued. A person in these circumstances should remain calm, assertive but cooperative.

A search warrant must state brief details of the alleged offence to which the warrant relates or the proceedings or legislation authorising the warrant, the evidence or property that may be seized under the warrant and the day and time the warrant expires. If the warrant is to be exercised during the night, the permissible hours that the property may be entered should be also be included.

An arrest warrant may only be issued if there are reasonable grounds for suspecting that the named person committed an offence and, for an offence other than an indictable offence, a court attendance notice to appear before the court would be ineffective.

The arrest warrant must include the name of the applicant, his or her rank, registered number and station, a statement to the effect that the police officer may arrest the person named in the warrant, and particulars of the alleged offence.

Police searches and arrests without a warrant

Police officers may enter any premises without a warrant to prevent domestic violence, to investigate traffic offences (for example to take a prescribed alcohol reading), to apprehend somebody who has escaped from custody or from being arrested, to execute an arrest, to reach a crime scene or to shut down an out-of-control event.

An arrest without a warrant may be executed if it is reasonably suspected that a person is committing, or is about to commit, an offence and the arrest is reasonably necessary to:

  • prevent further offences being committed;
  • identify the person arrested;
  • ensure the person appears in court;
  • preserve evidence or prevent the person concocting evidence;
  • protect a person (including the person arrested) from injury or harm; or
  • detain a person for questioning.

The police officer must make it clear that the person is being apprehended and tell the person why he or she is being arrested.

A valid arrest allows the police to question and identify a suspect. However, unless a formal arrest is made a person is not obliged to accompany a police officer. Arresting a person for investigatory processes only is prohibited.

Additional considerations for young people

There are additional protective provisions to protect young people confronting the criminal justice system. Generally, persons who are under 17 years of age must be accompanied by a support person when being questioned about a serious offence. The role of a support person is to ensure the interrogation is conducted fairly, assist with communication problems and help the young person assert his or her rights. A support person may be the child’s parents, guardian, lawyer, relative, friend or somebody working in an agency that deals with the law.

A statement or admission made to a police officer during an interview is inadmissible in court unless the young person was accompanied by an independent adult when making that statement.

Summary

Police officers have the necessary search and arrest powers to assist in law enforcement. These should be balanced with a person’s civil liberties.

Being approached by a police officer may be daunting however it is wise to stay calm, ask questions, and take notes of the reasons given for the police visit.

If someone you know is concerned about their rights and obligations in the criminal justice system or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

 

 

Sexting – what are the legal ramifications?

“Sexting” is the term used for the communication or distribution of sexually explicit (sensual, provocative or nude) photos or videos through text messages, internet posts, chat rooms or other social media.

Sexting may constitute a crime when it involves people under 18 years of age, regardless of whether or not the person depicted in the communication agreed to be involved. Sexting involving people of any age can also be a crime where the images are considered offensive or the sexting threatens or harasses a person.

Child exploitation and pornography

Voluntary sexting between teenagers may seem like typical explorative behaviour however the conduct could have serious criminal implications when involving persons under the age of 16 and / or 18 years of age.

It is an offence to produce, possess or distribute material that is considered to be child pornography or exploitation. Although sext messages may be sent between two consenting persons with the intention that they are not shared, this is not always the case.

The Queensland Criminal Code 1889 (Qld) contains several offences involving children under 16 years of age. These include:

  • making, or involving a child in making or attempting to make child exploitation material;
  • possessing child exploitation material;
  • distributing child exploitation material; and
  • taking an indecent photo, visual image, or recording of a child without legitimate excuse.

Child exploitation material is material that is likely to be offensive to a reasonable adult and which describes or depicts a child who is, or apparently is, under 16 years of age:

  • in a sexual context or engaged in a sexual activity;
  • in an offensive or demeaning context;
  • being subject to abuse, cruelty or torture.

These categories of offences may occur within a ‘sexting’ environment, attracting penalties ranging from 5 to 20 year’s imprisonment.

Child pornography includes an image, whether real or photo-shopped, or a video or cartoon of a young person that is considered ‘offensive to the average person’.

The requirement for the image to be ‘offensive to the average person’ is important as it distinguishes child pornography from, for example, a snapshot of somebody’s baby having a bath.

Child pornography could include a picture of a child posing in a sexual or provocative way, showing their private parts (genitals, anus or breasts), participating in a sexual act or being in the presence of somebody else engaged in a sexual act or pose.

It is illegal to request, create, receive and retain, send, post, or upload to the internet such images. Consequently, many on-line nude or explicit shots may potentially constitute an offence under these laws.

National laws

Under National (Commonwealth) law, it is a crime to access, possess or distribute ‘child pornography material’. There are also various offences which relate to the use of a ‘carriage service’ (including the internet or mobile phone networks) for the transmission of child pornography.

These National laws provide that a person under the age of 18 years cannot consent to sexting – penalties of up to 15 year’s imprisonment can be imposed.

Possible consequences of sexting

Given the broad operation of both Queensland and National law, people who send provocative or naked images or videos of themselves or others under the age of 18 years, even in private phone messages or emails could be breaking the law.

The penalties for offences involving child exploitation / pornography, whether under Queensland or National law are severe and a person under investigation or charged with such an offence should obtain legal advice immediately.

Generally, a person who is 18 years or older and found guilty of a child pornography or indecency offence may face registration on the Australian National Child Offender Register as a sex offender.

Registration as a sex offender carries onerous responsibilities to regularly report to the police and provide details regarding changes in personal circumstances such as relocating or changing jobs. Offenders must also give details of their email addresses and social media accounts. Registration as a sex offender will prevent a person from working with or supervising children or volunteering with organisations involving children such as coaching junior sports.

Police and prosecutors have discretion regarding whether they charge or prosecute people for certain crimes. This discretion may be exercised when there is an element of innocence related to the sexting. Age considerations may also influence the decision to prosecute for an offence arising from sexting activity.

However, where there is wide distribution of offensive material that has caused significant harm and distress, it is more likely that criminal proceedings will be taken. Sexting that leads to humiliation and bullying can have a devastating impact on a young person’s life.

Privacy, harassment and the internet

Sexting involving persons of any age may be considered an offence related to ‘recordings in breach of privacy’ under the Criminal Code 1899 (Qld).

It is an offence for a person to observe or visually record another person, when that person is engaged in a private activity or in a private place, without that person’s consent. Private activities include undressing, showering, using amenities such as a public toilet or change room, or engaging in sexual intercourse in a place that would normally be considered private.

Recording or photographing another person’s genitalia or anal region, whether or not covered by underwear, is also an offence. The maximum penalty for such offences is 2 year’s imprisonment.

Sexting (at any age) may also constitute harassment, stalking or indecent use of an internet or mobile. Examples include continued requests for a person to send a naked photo, threats to expose and distribute a naked photo of a person without consent, or continually forwarding explicit photos to somebody. These activities, when causing a person to feel humiliated or threatened, constitute an offence with a maximum penalty of 3 year’s imprisonment.

Legal advice

Images seldom disappear from the internet – once loaded there is little control over their subsequent dissemination. What may start off as a joke can soon turn into something very serious.

Persons charged and convicted with a sexual offence risk significant penalties including being recorded on the Child Protection Offender Register. The likely repercussions are an adverse impact upon a person’s reputation, career, relationships and travel plans.

If you are aware of someone who is concerned about a sexually explicit photo of themselves that might be on another’s phone, computer or online, or worried that they have a sexually explicit photo on their phone, computer or online, tell them that they should obtain legal advice without delay.

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

Marijuana and the Law

You may well have heard someone say “Marijuana is legal now – it is legal in Canberra, it has been decriminalised in New South Wales. You just aren’t allowed to sell it.” Is this true?

Well, in simplistic terms – no! Marijuana (or ‘cannabis’ as it known in law enforcement circles) is illegal everywhere in Australia. The penalties that one can incur for having, selling or growing marijuana varies a lot from state to state.

We have set out below the state by state position so that the bigger picture of laws relating to cannabis in Australia can be shown.

New South Wales

  • Any cannabis offence is a criminal offence and therefore can carry a criminal record.
  • Cautions may be given at police discretion to persons found with up to 15 grams of cannabis, on up to two occasions.
  • Cautions are accompanied by information regarding cannabis usage and a number for an advice line.

Victoria

  • Cannabis offences are criminal offences, but are tried in a specialised drug court rather than a regular criminal court.
  • It is at the discretion of the arresting officer whether to charge a person found with less than 50 grams cannabis or refer them to a ‘diversion’ program for help and education, this discretion by the police is only given on two occasions.

Queensland

  • Possession and use of cannabis is a criminal offence in Queensland.
  • A person found to have less than 50 grams of cannabis must be offered a drug diversion program on their first offence.

Western Australia

  • Cannabis offences are criminal offences in Western Australia and Western Australia has some of the toughest laws in Australia regarding cannabis use.
  • A person found to have less than 10 grams of cannabis or a used smoking instrument (such as a pipe or water pipe) must attend a Cannabis Intervention session within 28 days or they will receive a criminal conviction.

Tasmania

  • Possession of cannabis carries a criminal charge in Tasmania.
  • A person found with up to 50 grams of cannabis can be cautioned, at the police officer’s discretion, up to three times in ten years.
  • The nature of each caution differs, growing in severity from the person being given information in the first instance to the possibility of being sent for treatment for drug use in the third instance.

South Australia

  • Minor cannabis offences have been decriminalised in South Australia. This does not mean it is ‘legal’.
  • Persons who are found to have up to 100 grams of cannabis, 20 grams of hash resin, one non-hydroponic plant (which means it is grown in soil) or smoking equipment are issued with a fine of up to $150 and given 60 days to pay the fine.

Northern Territory

  • Cannabis has been decriminalised in the Northern Territory, however it is still illegal.
  • Persons found in possession of up to 50 grams of cannabis or 1 gram of hash or cannabis seeds or two non-hydroponic plants can face fines of up to $200 and 28 days to pay the fine to avoid a charge.

Australian Capital Territory

  • Cannabis has been decriminalised in the Australian Capital Territory but is still not legal.
  • Persons found with less than 25 grams of cannabis or up to two non-hydroponic cannabis plants are offered the choice to pay a fine or attend a treatment program.

 

Cannabis or Marijuana is not legal in any state or territory of Australia.

Contrary to what seems to be a reasonably popular belief, there is no part of Australia where marijuana and its products are legal to grow, possess or sell. When examined on a state-by-state basis, it is clear that while in some states and territories the personal use of marijuana has been decriminalised, users and possessors still face repercussions if they decide to use or possess any cannabis or cannabis related products.

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.

Obligations and consequences of parenting orders

A separating couple with children will need to work out the parenting arrangements for those children – where the children are to live and who may make decisions about the children.
If the couple can agree, their agreement can be formalised as Consent Orders (ie Orders made by the Court by consent). If not, the Court can decide the parenting arrangements for them.
In either case, the Court will only make orders that it considers are in the children’s best interests.

Structure of parenting orders
Parenting orders, whether made by consent or otherwise, will cover topics such as with whom the children are to live and spend time, and which parent may make decisions in relation to the children’s day to day and long term care, welfare and development. Theoretically, each aspect of a parenting order, whether made by consent or after a contested hearing, is as binding and enforceable as a Court order about the parties’ finances.

Enforceability
Unfortunately, that theory is not always borne out in practice.
It can sometimes be difficult to prove a breach of parenting orders. How does one demonstrate to the Court that one’s former partner breached the order requiring him to communicate with you in relation to decisions regarding the children’s long term welfare?
Even if your former partner is completely unwilling to compromise, the fact that she attempted to “discuss” the issue with you may satisfy the Court that your right to consultation was respected.
Surely it would be easier to prove a breach of a parenting order relating to time with the children? It is likely to be obvious whether the children spent the ordered time with you.
However, before the Court will treat a parenting order as having been breached, it must first consider whether the “guilty” parent had a reasonable excuse for failing to comply with the orders. For example, was it reasonable for the “guilty” parent not to facilitate the other parent’s time with the children on the basis that the children allegedly don’t want to go and “I can’t make them”.
Whether or not that constitutes a reasonable excuse depends on the facts of each case, including the age of the children and the steps that the parent did take to try to encourage the children to spend time with the other parent.

Consequences of breach
If a Court is satisfied that a parenting order has been breached, it has a range of penalties available to it to either punish the “guilty” parent, to “compensate” the innocent parent or to enforce the parenting orders. Those options include:
• requiring one or both parents to attend a parenting after separation course
• ordering that the children spend additional “make up time” with the innocent parent
• changing the parenting orders. This could mean that the children ultimately regularly spend more time or even live with the “innocent” parent
• placing the “guilty” parent on a bond or sentencing him or her to imprisonment.
In relation to the last three of those options, the Court’s overriding consideration is still the children’s best interests. There have been a number of cases where, despite proven and repeated breaches of parenting orders by the parent with whom the children live, the Court has not drastically changed the earlier parenting orders, nor was the “guilty” parent put in gaol because the Court was concerned that the imposition of such consequences would not be in the children’s best interests.
Unfortunately, the practical outcome in those cases was that the “guilty” parent’s breach of the parenting orders went unpunished.
In such cases, the Judge must reconcile her desire to uphold the Court’s orders and punish any breach of them with the Court’s overriding obligation to only make parenting orders that it considers to be in the children’s best interests.

Consequences for taking children overseas
One type of breach of parenting orders which deserves special mention is where a parent breaches and tries to avoid the operation of Australian parenting orders by taking the children overseas. Such a situation is treated very seriously by the Family Court, the Federal Police and relevant international authorities.

Conclusion
Parenting orders can be made by consent or as a result of a contested hearing before a Judge. The enforceability and consequences for breach of parenting orders is the same, regardless of how those orders were made. Unfortunately, proving a breach of parenting orders and obtaining what the “innocent” parent might consider to be adequate redress can sometimes be difficult.
Given that all parenting orders, whether consent orders or otherwise, are made taking into account the children’s best interests, both parents would be better advised to comply with the orders, rather than litigate about an alleged breach of them, as such compliance ought to promote the children’s relationship with both parents and the children’s best interests.
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.

Visas and domestic violence

Family violence is not acceptable or tolerated in Australia.

If you are living in Australia on a visa and experiencing family violence you will likely be very concerned, not only about your wellbeing, but the future of your residency here.

If you are on a temporary partner visa or you married whilst on a prospective marriage visa and you or your dependants have experienced abuse, the family violence provisions provide that the grant of a permanent visa may still be considered, despite the breakdown of your relationship.

In other words, you should not be prevented from continuing with an application for permanent residency, for having ended a relationship because of violence.

These provisions are aimed at ensuring people do not stay in abusive relationships simply for fear of being deported.

If you or your dependants have experienced violence and your relationship has ended, it is important to get legal advice, so you can consider your options and, obtain the relevant supporting information to make a family violence claim.

What is family violence?

Family violence is conduct, either actual or threatened, that causes you to fear for your safety or wellbeing. The conduct can be directed at you, your dependants (children) or your property. Family violence includes physical and psychological harm, forced sexual relationships, isolation and financial deprivation.

To continue with your visa application, you must prove to the Department of Immigration that:

  • your relationship was genuine until it ended; and
  • family violence took place during the relationship.

Proving family violence

A family violence claim may be supported by judicial evidence or non-judicial evidence.

Judicial evidence can be proven by a court ordered injunction or restraining order made against your ex-partner either under the Family Law Act 1975 or under a state or territory law. Alternatively, a court conviction or finding of guilt made against your ex-partner for assault against you or a dependant can be used.

Upon presentation of judicial evidence, a decision maker must make a finding of family violence against the victim. This of course provides a more streamlined process for an applicant to prove the existence of family violence and continue with the permanent residency visa application.

Non-judicial evidence requires the applicant to complete a statutory declaration. This is a sworn or affirmed statement made by you attesting to the truth of the facts contained in the statement. The statutory declaration sets out the events regarding the family violence and names the person alleged to have committed the violence.

The statutory declaration must be supported with two other forms of evidence from at least two of the following categories:

  • a medical or hospital report or discharge summary, or statutory declaration from a registered medical practitioner or nurse;
  • a record of assault, police report or statutory declaration by a police officer or witness statement provided to a police officer during an investigation;
  • a report or statutory declaration made by an officer of a child welfare or protection authority;
  • a letter of assessment or report from a staff member of a women’s refuge or family/domestic violence crisis centre;
  • a statutory declaration made by a social worker who has provided counselling and assistance to the alleged victim;
  • a statutory declaration made by a registered psychologist who has treated the alleged victim;
  • a statutory declaration by a counsellor or family consultant from a Family Relationship Centre;
  • a statutory declaration made by a school counsellor or school principal.

The documents must generally identify the alleged victim of violence and perpetrator. The Regulations set out the specific criteria to be addressed for each category of evidence. For example, medical documents should provide details of the physical injuries sustained or mental health treatment provided for a condition that would be consistent with the psychological abuse claimed.

What next?

Once family violence is established, a visa applicant may be granted the visa applied for, providing he or she still meets all other relevant criteria.

If the Department of Immigration is not satisfied, on the evidence provided, that family violence has occurred, it must seek, and rely on, the opinion of an independent expert.

Policy currently requires that all evidence submitted (even if more than what is required) must be considered by the decision maker. Accordingly, in some cases it will be beneficial to provide as much evidence as possible.

Conclusion

Special rules apply which allow victims of abuse who are on certain visas to qualify for permanent residency despite the breakdown of their relationship.

The regulations require proof of family violence before a permanent residency application can be further considered.

Victims of family violence are urged to contact an experienced migration agent or immigration lawyer to ensure that their rights are fully protected, and the  appropriate evidence can be obtained to support an application for permanent residency.

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.

Temporary Skill Shortage Visas (482 visas)

The Temporary Skill Shortage (subclass 482) Visa (TSS Visa) is a new stream of visa introduced as part of Australia’s reformed skilled migration scheme. The new stream is now fully operational and supersedes the Temporary Work (Skilled) Visa program (457 visa) which is now closed for new applications.

Features of the TSS Visa

The TSS visa stream is designed to assist employers address genuine skills shortages in the Australian labour market. It enables employers to bring skilled workers into Australia (by sponsorship) where they are unable to source the workers they need locally.

Each visa stream allows an applicant to include eligible family members in their application which are defined as a partner – married or de facto (same or opposite sex) or dependent child or children up to 23 years of age.

The TSS visa comprises three streams:

  • The short-term stream permits employers to fill temporary skills gaps identified from a list of occupations on the Short-Term Skilled Occupations List (STSOL) for a maximum two-year duration (or 4 years under International Trade Obligations) with a once-only onshore renewal capacity.

This visa does not provide an opportunity for permanent residency and applicants must demonstrate that they genuinely do not intend to remain permanently in Australia.

  • The medium-term stream targets long-term skills gaps and is designed to fill more narrowly-defined and highly-skilled occupation categories appearing on the Long-Term Strategic Skills List (MLTSSL).

Applicants may apply for up to four years with an opportunity to renew indefinitely whilst the occupation remains on the list. The medium-term stream provides a pathway for permanent residency after three years provided the visa holder meets relevant eligibility requirements and has complied with any visa conditions.

A Regional Occupation List (ROL) includes various occupations that are specifically available in regional areas and forms part of both the STSOL and MLTSSL.

  • The labour agreement stream applies to employers who have entered into a labour agreement with the Department of Home Affairs. A labour agreement allows businesses who can demonstrate a specific need that cannot be met by the Australian labour market, to sponsor workers. Currently, there are four types – company-specific, industry-specific, designated area and project agreements.

Like the medium-term stream visa, applicants may apply for up to four years, apply to renew the visa, and seek permanent residency, subject to eligibility, after three years.

Some occupation categories are subject to certain ‘caveats’ meaning that there will be additional requirements relating to the business entity or occupation, for example, a pre-requisite for a business to have achieved a minimum annual turnover before obtaining sponsorship approval, minimum salary requirements, minimum number of employees or specific locality requirements.

How do I apply for a TSS visa?

Occupation

Applicants first need to check if they have the relevant qualifications or skills suited to an occupation listed on the STSOL or MLTSSL. These lists are reviewed regularly to ensure they provide an accurate picture of occupation shortages at the current time which means that categories of occupations may be added, deleted or moved between lists at any time and without notice.

Sponsorship

Applicants must also have an employer who is willing to employ them in the listed occupation. The employer must be an ‘approved business sponsor’. An approved business sponsor must lawfully operate a business in Australia and fulfil various other requirements.

A visa application cannot be submitted without the applicant being ‘nominated’ for the position by the approved business sponsor. Before nominating a proposed applicant, the employer must show that they have made genuine local efforts to recruit for the occupation (known as labour market testing).

The employer must pay the visa holder a market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT) to ensure that overseas workers are not exploited, and Australian workers are not cut out of a position.

The employer must pay for all costs associated with the sponsorship and nomination application.

Eligibility criteria

Grant of a visa will be subject to the applicant meeting various eligibility criteria including skills and qualifications relevant to the occupation category, minimum work experience, health and character requirements (including police checks) English proficiency and any other requirements specific to the visa type for the stream in which they are applying.

TSS visa applicants need to demonstrate at least two years’ relevant work experience in their chosen occupation category (unless applying under a Labour Agreement Stream where the two-year requirement may not be necessary).

Family, partners and children included on the primary visa applicant’s application also need to meet certain eligibility requirements.

Visa holders must provide Tax File Numbers to the Department of Home Affairs for cross-checking with the Australian Taxation Office to ensure conformity with salary requirements.

Conclusion

Applying for a visa is a complex process with strict eligibility criteria, legislation and regulations constantly evolving and listed occupation categories subject to change at short notice.

A lawyer experienced in migration law can assist greatly in explaining the process and obtaining the extensive information necessary to support your application.

Getting your application right the first time is imperative to increase the opportunity of being granted an Australian visa.

If you or somebody you know is interested in applying for a TSS visa, or other visa type or wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

How marriage & divorce can affect your Will

Why, you might ask, would marriage or divorce have anything to do with your Will? Why indeed! The reality is that only about one in two Australians, whether married or divorced, have a valid Will. Of those who do, many haven’t looked at their Will since they signed it, and perhaps have forgotten what it says. And they’re likely to be unaware of the unintended consequences that marriage and divorce can have on their otherwise valid Will.

In Australia, laws relating to marriage and divorce are made by the Federal government. Wills are governed by State and Territory laws. While similar, there are some important differences from State to State or Territory.

Marriage and your Will

Getting married is a time of joy, looking forward to a long life together, not a time when you want to be thinking about the end of your life. But when preparing to promise to be together until “death do us part”, you need to also think about what will happen when death does, in fact, part you. This is particularly important in the case of second marriages and blended families.

In general terms, marriage revokes a Will. That is, by saying “I do” you invalidate your Will. If you die without making a new Will, you could be leaving it up to the government, not you, to decide how your estate is distributed. If there’s just you and your new spouse in your family, perhaps that’s okay. But in today’s world, that’s often not the case.

There are some exceptions to the rule that marriage revokes a Will. NSW, Victoria, Tasmania, Queensland and the Northern Territory allow appointments of your spouse as executor and gifts to him or her in your Will to remain valid after a marriage. However, the rest of your Will would be revoked. That means some of your wishes may not be followed in the event of your death.

In ACT, South Australia and Western Australia even gifts to your spouse or appointing him or her as executor would be revoked by your marriage. The Will as a whole would be invalid.

It is possible to make a Will in contemplation of marriage – of a specific marriage or of marriage generally – which would still be valid after a subsequent marriage. Alternately, you could have Wills prepared to be signed at your wedding, immediately after signing your Marriage Certificate. Not very romantic, perhaps, but pragmatic.

 Divorce and your Will

Generally, divorce treats a reference to your former spouse in your Will as if he or she died before you. That is, the rest of your Will would still be valid, but your ex-spouse would not be appointed as executor and would not receive anything from your estate, regardless of what the Will says. However, there are some exceptions to this, which differ throughout Australia.

Firstly, except in Tasmania, if the Court finds that the deceased intended for his or her ex to receive a gift from the estate or be appointed as executor notwithstanding their divorce, that gift or appointment would still be valid. In South Australia, that intention must be expressed in the Will. Elsewhere, the Court may be satisfied about the deceased’s intention through other evidence. Of course, that opens up the possibility of a Court battle about the deceased’s intentions. Not what anyone would want to happen after their death.

Secondly, if your Will appoints your former spouse as trustee of a trust to benefit people including his or her children, in NSW, Victoria, Tasmania, the Northern Territory and Queensland that appointment would still be valid, despite your divorce. Be aware that this relates to a trust created by your Will whose beneficiaries could include people other than your ex-spouse’s children. After your divorce, would you really want that to be the case?

Finally, the laws about the effect on a Will of the ending of a marriage relate only to divorce or annulment, not separation. That is, if you separate but remain married, your Will would take effect as if you and your spouse were still happily living together. Would that really reflect your wishes?

Divorce and your Will – Isn’t a property settlement enough?

So, you’re divorced, you’ve had a property settlement and you’ve even made a new Will. Leaving aside child support, that’s the end of your financial obligation to your ex, right? Wrong.

Some Australian States and Territories allow former spouses to go to Court and seek part of the deceased’s estate, regardless of the terms of the Will. NSW, ACT and South Australia allow such a claim, even if you have already finished a family law property settlement and your ex was not dependant on you when you died.

In Tasmania, Queensland, Western Australia and the Northern Territory, your former spouse needs to have been receiving maintenance or otherwise dependant on you at the time of your death to be able to claim on your estate. Victoria only allows such a claim to be made if, by the time of death, the deceased and his or her ex-spouse had not started or finished a family law property settlement.

If you are separated but not yet divorced, the situation about whether your estranged spouse can make a claim on your estate is even more complicated.

Conclusion

Marriage and divorce can have unintended consequences on your Will. When preparing to sign your Marriage Certificate, you also need to prepare to sign a new Will. Similarly, if your marriage didn’t turn out to be “happily ever after”, when thinking about dividing your assets while you’re alive, you should also turn your mind to the distribution or protection of your assets after your death.

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