Archive for the ‘Newsletters’ Category

Partner Visas

Did you know you may be eligible for a partner visa if you are married to, or in a de-facto relationship with, an Australian citizen, Australian permanent resident or an eligible New Zealand citizen? If your application is successful this will result in permanent residence, in most cases after a period of about 2 years.

There are two overall types of partner visas; namely a partner visa and prospective marriage visa. The type of visa for which you should apply depends on the type of relationship you are in, but essentially visa applicants must:

  • Have a mutual commitment to a shared life together, to the exclusion of all others;
  • Have a genuine and continuing relationship; and
  • Live together or not live separately and apart on a permanent basis.

 Your relationship type

For legally married applicants it doesn’t matter if you were married in Australia or overseas. For those married overseas, this would generally be recognised in Australia providing you were both over eighteen years of age and of the opposite sex.

For applicants in a de-facto relationship the rules would generally require you to show that you have lived together for at least 12 months. In some circumstances a shorter period may be adequate, such as having had a child together or if you were unable to live together in your country or if you have “registered” your relationship with a State or Territory in Australia.

Applying for a Prospective Marriage Visa

 For people outside Australia who intend to marry their Australian sponsoring partner after they enter Australia, a prospective marriage visa is also available. It is not available for visa applicants already in Australia.

In these cases an applicant must:

  • Be at least 18 years of age
  • Have met their sponsor, in person, since they both turned 18
  • Be known to their sponsor
  • Be able to enter into a marriage that is valid under Australian law (that is, there must be no impediment to their marriage).

A prospective marriage visa is valid for nine months from the date of grant. To convert this to a permanent visa in Australia, a prospective marriage visa holder must enter Australia, marry their sponsoring partner and apply for a partner visa in Australia within the nine month period.

Temporary Partner Visas

If you apply for a permanent partner visa, you make a combined application for both a temporary partner and a permanent partner visa at the same time.

The temporary partner visa is usually granted first. It this gives you full work and travel rights in Australia. You should also be eligible for Medicare, but would not be able to access full social security benefits. This lasts until a decision is made on the permanent partner visa and this is generally at least 2 years after lodgement of the partner visa application.

Processing Time Period

Some applications are decided quickly. But currently Partner visas are taking about 9 to 12 months or so on average. Although, this can be longer if (for example) your application necessitates difficult security clearances and this in turn will depend on your place of residence.

Conclusion

There are many rules applying to partner visas and to family migration cases generally.

With the right advice at the start you give yourself the best chance of success and you can also minimise unnecessary delays.

If you would like an experienced immigration lawyer to check your application to make sure it complies with the many rules, please call us on 07 3281 6644 or email mail@powerlegal.com.au.

Immigration Services and Advice

Power Legal have also added to its services, Immigration Law with Annette becoming a Registered Migration Agent.

Anybody who provides immigration advice or assistance is legally required to be registered with the Office of the Migration Agents Registration Authority and to have a sound knowledge of migration law and process.

Complementing her legal experience of over 35 years, Annette is now able to assist in any aspect of migration law, including:

  • Skilled visas
  • Family visas
  • Partner visas
  • Student visas
  • Business and investment visas

When applying for a visa it is important to identify the most suitable pathway and visa type for your circumstances. Using a migration agent can assist with this process and help you navigate the complex laws and regulations to get your visa application underway.

We look forward to advising and assisting our clients in all areas of migration law.

 

 

Road Rage, the New ‘Black Spot’ You Should Know About

Have you experienced road rage? The obscene gesture, the threat yelled out the window, have you ever had someone follow you home?

Well if you have, you aren’t alone.

A survey of more than 3740 Australian drivers by insurance company GIO revealed some interesting statistics about this road threat.

What is ‘Road Rage’?

The Drugs and Crime Prevention Committee of Victoria (DCPC) divide road rage into three categories:

  1. Road Violence occurs when strangers are targeted by strangers in specifically driving and road related instances.
  2. Road Hostility is just like road violence, but in a lesser form, where a stranger’s rage is expressed without physical violence, for example cursing and yelling.
  3. Selfish Driving is not targeted at anyone in particular, but is a product of the driver wishing to get ahead of the traffic without thought or concern for the safety of other drivers.

Road Rage is the New Black (spot)

85% of the drivers surveyed by GIO believed that drivers were more aggressive on our roads than ever before.

Surprisingly, Brisbane was found to be the worst major capital city for road rage, with 95% of drivers having experienced road rage at the hands of their fellow drivers, followed by 90% of Adelaide and Perth drivers, 87% of Melbourne drivers and 84% of Sydney drivers.

The most commonly experienced forms of road rage were obscene gestures, followed by tailgating (when someone is close behind you in an unsafe manner designed to be intimidating) and then abusive language. Almost a quarter of respondents had been followed, with more women represented in this number than men.

Lower numbers of respondents reported being forced off the road, and attacks to their vehicle or person.

Tips for dealing with Road Rage

Road rage is one of those things where your actions can make a big difference as to whether the situation escalates or not. Regardless of how you feel, the only people entitled to ‘punish’ others for their bad driving are the police.

Is it worth it? Sure, the other guy is a complete loser and didn’t indicate, but a near miss is not an accident. On the other hand, perhaps you are in the wrong. Would it kill you to say ‘sorry’ for missing that give-way sign? It might kill you not to.

Do not underestimate. The sweet little grannie driving 30kms under the speed limit might be full of rage and take it out on you. Never underestimate another driver’s capacity for road rage.

Go to the police. If someone is following you don’t drive home. Then they know where you live. Drive to the nearest police station and if you can do so on a hands-free, ring to let them know you are coming and what the situation is.

Do not drive evasively. Do not get into an accident because someone is road raging at you. Follow the road rules and head for the nearest police station.

Know the rules. Good driving cuts down on road rage. If you know the road rules that are in place in the particular state in which you are driving then you have less chance of being involved in a road rage incident.

Record the location, time and date of the incident, and any identifying features of the other vehicle or driver, such as their license plate or any jewellery they might be wearing. This can then be referred to when reporting the incident to the police.

Road rage is on the increase

Whether it is the pressures of modern urban society or the anonymity that some people feel inside the swift sleekness of a car, whether is frustration against an owner of a more luxurious and expensive car, or simply that people are having a bad day, road rage seems to be a modern phenomenon that is here to stay.

It is hard to provide statistics on the rise of road rage, as it is vastly underreported and often the road rage incident itself is masked as a vehicle accident report.

The GIO survey that we have examined in this article has shown such a prevalence of road rage that it is impossible to ignore, and is affecting a huge percentage of Australians.

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.

Who gets custody of the pets after a family separation?

Following a relationship break-up it is becoming increasingly more apparent that disputes are going beyond the living arrangements of the children, property disputes and division of superannuation.

The fate of family pets is becoming a larger problem for both litigants and their lawyers

Many family law litigants mistakenly think the Family Court can help resolve pet custody disputes. The position is clear: The Family Court in Australia does not rule on the custody of pets.

In Australia, pets are considered part of the couple’s personal property. They are treated like furniture or any other piece of personal property. The difference is of course that pets are living beings and they experience mistreatment and cruelty whereas property does not.

The reasons are understandable

One explanation is that people often feel that pets are like children. We are dealing with really strong emotional bonds that get formed over time. Separating couples are dealing with a grieving process and the family pet is important to them.

For couples in childless marriages animals can be really important and people in these circumstances can find it difficult to understand why the Court can’t deal with a litigant’s emotional attachment.  For some instances, such as couples on second marriages between older partners who didn’t have children at home, the pets form part of the family and effectively replace the children they have not been able to have.

How does the Court deal with the issue?

Interestingly, pet custody cases have a long history in the American family courts however in Australia essentially the law treats pets as assets.

If they are breeding animals then they essentially become a business asset. If they are companion animals they are treated as personal property just as the Court deals with photos and CDs and whilst that will sound harsh to animal lovers, it is the reality of how the Courts treat pets.

To make matters worse for pet lovers, the Family Court can get frustrated when people bring up these matters before a judge, who is more focused on issues that are more difficult to tackle, such as child abuse. Therefore it is best dealt with by negotiation.

How lawyers deal with the issue

Pets usually enter the discussion when property settlements are being discussed. While most of these negotiations that may lead to agreements that take place outside of the Court, they are increasingly included in formal arrangements.

It is becoming more common for couples to create their own formal pet custody arrangements, including visitation rights, similar to negotiations that are made for children of divorced parents.

Summary

Pets are increasingly at the centre of tug-of-war battles between separating couples.

Ideally separating couples can set aside their differences and agree the best outcome for their pets. Unlike chattels which are often divided between parties on a piece by piece approach, it is better for the parties to be less property orientated when there a pets involved, preferring not to split up pets which are attached to each other.

Helpful and competent legal advice can often help parties decide on shared custody of their pets. If you know someone who may need assistance in this area they should call us on 07 3281 6644 or email mail@powerlegal.com.au.

Social Media and Defamation Tweeters and Posters Beware!

Anyone who uses social media has almost certainly come across a post or tweet where your immediate reaction was to suck in your breath and go “Ouch” while simultaneously being glad you weren’t the one on the end of the tirade.

Perhaps you have been guilty of firing off such a post or tweet yourself when someone or something has upset you. Maybe about the tradie who didn’t show up on time or the restaurant you went to last night where the waiter was the worst you have ever encountered.

It’s your democratic right to sound off and practically your duty to let everyone know to avoid spending their hard earned cash in that place isn’t it? Maybe it is but you really need to be careful that by posting or tweeting you aren’t defaming someone because if you are that spur of the moment rant could cost you plenty.

Of course social media isn’t the only place people may be defamed but it is fast becoming a growing area for these sorts of claims and disputes to arise.

 What do we mean by defamation?

You may have defamed someone (and be held liable for damages) if you have made a statement that could be seen as lowering a person’s reputation in the eyes of community, could lead to that person being made fun of, avoided or despised or could in some way lead to a loss of reputation in the person’s profession, business or trade.

 Could this cost me money?

While the simple act of defaming someone may not automatically lead to a Court finding you liable to pay damages (money) and there may be defences available to you, just being accused of defamation can lead to you becoming involved in costly and time consuming legal proceedings.

While you may have a defence such as being able to prove the statement was true or that it was an honest opinion on a matter of public rather than private interest, the best strategy is not to make statements that could lead to a complaint in the first place.

 But I was only posting on my private Facebook page….

Defamation can include publishing an article or newsletter, posting on a website or even writing an email. With the use of social media and email being so widespread comments and posts people make have the potential to “go viral” almost immediately and what may have started off as perhaps a private chat between two people can quickly spread to a far wider audience than was ever intended sometimes with far reaching consequences.

Who can be defamed and who is liable?

While you can’t defame a dead person and legislation may, depending on where you live, exclude or limit a company from suing for defamation, it is important to remember that each person who participates in the defamation may be found liable for it. So if you receive an email that is defamatory about the local plumber who failed to turn up or the crazy parent from your child’s school and decide to spread the word to all and sundry you could find yourself in as much hot water as the person who wrote the email in the first place.

A cautionary tale

Take the case of Mr Palmer who decided that he needed to warn his fellow residents about Mr Mohareb, one of his neighbours on Scotland Island (a small coastal community near Sydney). Mr Palmer posted on the Scotland Island Community Facebook page a “Warning” about Mr Mohareb that included describing him  as a “highly volatile individual, prone to manic outbursts” and which stated that he was “often abusive and threatening – particularly towards women and children and warned residents to avoid approaching or confronting him”.

Not surprisingly Mr Mohareb took offence at these comments and subsequently the matter proceeded to litigation in the District Court of NSW with significant costs being incurred by both parties.

How can I avoid being sued for defamation?

A good rule of thumb is to think long and hard before your post or publish. Remember once you post or press send it is out there on the internet forever.

Some other techniques to avoid defaming someone include:

  • Follow the golden rule of “If you can’t say something nice don’t say anything at all”;
  • Always check that any statements you make are actually true. Don’t just repeat what someone else told you without checking that what they said is actually true;
  • When communicating focus on the issue and try not to make personal comments or sweeping statements;
  • Never make derogatory comments about a person’s race or religion;
  • Try to avoid emotive language;
  • Avoid identifying someone even unintentionally if what you are saying could lower the person’s reputation; and
  • If in any doubt don’t say, write, tweet or post before checking with a lawyer first.

Help! I think I may have already defamed someone

An apology, especially a public apology, can often go a long way to limiting the damage done. If you are in any way concerned that you may have defamed someone or have been accused of doing so then it is better to seek legal advice sooner rather than later.

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 is the Offender Levy?

The Queensland Government have introduced an offender levy which will apply to any offender (other than a child) sentenced in the Supreme, District or Magistrates Court whether or not a conviction is recorded.

The levy is not an order of the court and does not form part of any sentence imposed by a judge or magistrate. You are not able to appeal the imposition of the levy however the levy will be removed if all convictions relating to the sentencing event are overturned on appeal.

The levy is payable on each sentencing event whether or not a conviction is recorded (E.g. if you are sentenced on 01/10/2012 in relation to 4 charges only 1 levy will be applied.)

How much do I have to pay?

As at 21 August 2012, yiou will have to pay $118.80 if sentenced in the Magistrates Court or $356.40 if sentenced in the District or Supreme Court.

If I have multiple charges how many levies do I have to pay?

If the charges are all dealt with at the same sentencing event (i.e. at the same time, before the same judge/magistrate) you will only have to pay one levy. If they are dealt with at two separate sentencing events (i.e. some are dealt with at the District Court and some dealt with at the Magistrates Court on the same day) you will have to pay two levies.

What do I do if I feel the levy has been incorrectly applied?

If you feel that the levy has been incorrectly applied (e.g. you have had 2 levies applied and you believe there should have only been 1.) you should contact the Registry of the Court that applied the levy as soon as possible.

Where can I pay my levy?

You can pay the levy on the day it is applied at the court registry court otherwise it can be paid through the State Penalties Enforcement Registry (SPER) which will send you an Enforcement Order advising how and when the levy is to be paid.

When can I pay my levy?

The levy can be paid in full as soon as it is applied at the registry of the court. Otherwise it is to be paid by the due date as set out in the (SPER) Enforcement Order.

What happens if I do not pay the levy?

If you do not pay the levy by the due date stated in the Enforcement Order the State Penalties Enforcement Registry  (SPER) may take enforcement action against you

Do I have to pay the levy if my sentence is re-opened?

No. An additional levy is not applied if your sentence is re-opened; you apply for a re-hearing; or you appeal your conviction and/or sentence.

Can I appeal the imposition of an offender levy?

No. The levy is not an order of the court and does not form part of any sentence imposed by a judge or magistrate.

Do I still have to pay the levy if I appeal the conviction and sentence?

No, you do not have to pay the levy if you have lodged an appeal against the conviction and sentence.

If your appeal is completely successful and all convictions relating to the sentencing event are overturned on appeal the levy will be removed.

If your appeal against conviction is not entirely successful, you will then have to pay the levy if you have not already done so.

If you appeal the sentence only and the sentence is changed (i.e. the original sentence of 12 months probation is overturned and a new sentence of $500 fine is imposed) you will still have to pay the levy if you have not already done so.

What happens if I pay the levy and all convictions relating to the sentence are overturned on appeal?

If you have paid all or part of the levy and all convictions relating to the sentencing event are overturned on appeal, the amount paid will be refunded to you.

If you appeal the sentence only and the sentence is changed (i.e. the original sentence of 12 months probation is overturned and a new sentence of $500 fine is imposed) you will still have to pay the levy if you have not already done so.

If you have any questions or would like to speak with one of our solicitors, please contact us.

Why you should use a Migration Agent

Applying for a Visa can be a daunting and anxiety provoking task. Applying for some visas can be relatively straight forward, such as a holiday visa however other visa applications can be incredibly complicated and require an in-depth knowledge of the specific countries laws and visa processes.

 Save time and money

By working with an experienced Migration Agent you can save time and money by avoiding making mistakes and getting an outcome faster.

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

Australia has its own legislations and policy in immigration.  The legislations and policy determine the complexity and depth of information required to ascertain if an applicant reaches the minimum set of requirements and if the visa applied can be ultimately granted.

As you can imagine it is not the intention of any immigration department to make a visa application complex or difficult, although it may feel like it at times.

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

Avoid mistakes and traps

By working with a Migration Agent you avoid mistakes and your visa will hopefully be approved faster, since we know what documents will streamline your result. Naturally if you provide the Department of Immigration and Border Protection with all the forms and supporting documents required, (it is often called a decision-ready application), your application will be processed faster without any unnecessary delay.

The problem can be that even a small error in terminology or incorrect interpretation can have a significant effect on the validity of a visa application, remember it is not the job of the Department of Immigration to check and assist a visa applicant in their visa

application. One error, however small, could leave you with an invalid application (which will be simply returned to you as it will not be even considered by the Department of Immigration) or the visa being refused.

It is important to remember that the Department of Immigration do change their immigration laws and requirements when they see fit, which can mean that you may meet the requirements for a successful visa application on one day and not be eligible for the same visa the next.

Receive objective assessment

 An applicant cannot always be expected to have the knowledge of particular migration laws, policy or visa processes and requirements.

Individual circumstances such as education, age, health, family, criminal record and more are usually taken into consideration by the Department of Immigration and Border Protection particularly with permanent resident visas.

By consulting an expert you will receive a clear and objective visa assessment result, a visa strategy that has been tested and is straightforward, and clear instructions about what documents are needed. If you send us the material we can prepare your application and lodge it for you, so you would not have any hassles.

Skill and Strategies

By using an experienced Migration Agent, you will have access to in-depth knowledge and strategies based on the experience and skill that only Migration Agents have, due to years of experience working with visa applications as well as having access to legislation databases that the general public doesn’t have.

A skilled Migration Agent is able to assist you and guide you through the various different types of visas that may suit your circumstances and provided you with up to date information on immigration requirements and laws.

In addition to providing you with up to date information on the visa requirements, Migration Agents can complete the required paper work on your behalf and often lodge the application for you which can shorten the time before obtaining your visa.

If your circumstances mean that you are unable to obtain the visa you want, a Migration Agent can provide you with other avenues or bridging visa options that you may wish to consider allowing you to obtain the visa you originally wanted at a later date.

Fees are usually determined based on the type of visa and the depth of services required for such assistance.

 Conclusion

All Migration Agents operating in Australia must be registered with the Migration Agents Registration Authority (MARA), are required to have a sound knowledge of migration law and procedure and must abide by a very strict code of conduct when dealing with their clients and with the Department of Immigration and Border Protection.

To be registered, an agent has to demonstrate that they have deep knowledge of the laws and regulations of Australian Immigration by successfully completing a PostGraduation course in Immigration Law.

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

What to do after a family separation and pending divorce

Do you have a friend or relative who has just separated?  If so, the information below should help.

 What is meant by separation?

Separation in Family Law is defined as the bringing to an end of a marriage or de facto relationship (which also includes same sex couples). There is no need or ability to register a separation under Australian Family Law. Separation is a fact which must be proven if it is disputed by the other party at a later time.

In the case of a divorce, the date of separation is recorded on the Application for Divorce and is sworn or affirmed to be true and correct by the Applicant. If you cannot prove you had separated from your spouse at least 12 months before you file your Application for Divorce, the Court will not grant your divorce.

Therefore, it is a good idea to confirm the separation in writing, even if this is via text message that can be saved, at or shortly after the time of separation. Often divorce cases and cases for property settlement in de facto relationships can turn upon whether or not a party can prove that separation occurred on a particular date.

 What about de facto relationships?

In the case of a de facto relationship, particularly where the relationship ends on or about the two year anniversary, whether or not a property settlement is available can depend on whether the separation took place before or after the two year anniversary. If the de facto relationship was less than two years long the Court may have no jurisdiction under the Family Court Act to provide a property settlement. There may be alternate remedies available or another basis other than the two year requirement to show that a de facto relationship existed.

In addition, there is also a two year limitation period in which to commence the Application, from the time of separation. In such cases, again, the date of separation can be significant.

 What about if you still live together?

Separation can take place even though the parties live under the one roof and it can also be a gradual process. In these cases, the Court will need to examine a number of factors to determine when and if a separation has taken place.

Those factors can include whether the parties:

  • Slept in separate rooms or together after the alleged date of separation;
  • Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
  • Separated their financial affairs to any extent after the date of separation;
  • Lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship;
  • Continued to be intimate after the date of alleged separation; and
  • Made it publicly known (such as by telling friends and family), that they had separated.

Ten things to consider if a person has just separated:

  •  Contact your bank or financial institution in writing (by fax or email- with your signature appearing) to stop joint funds being removed or liabilities increased.
  • If you have a Power of Attorney, ensure it is revoked, and have a new one drafted.
  • Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
  • Photocopy all of your and your ex’s financial documents and put them in a secure location (this should not be your home or motor vehicle).
  • Look at your Will and consider if it is still what is appropriate and if you do not have a Will have one drafted.
  • If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
  • Do title searches on your properties. If your home is not in your name or is in joint names ensure you place caveats over the properties. If your property is held as a joint tenant, ensure you sever the joint tenancy.
  • If there has been family violence in the relationship you may need to seek a Restraining Order.
  • Start a diary which keeps track of time your partner has with the children and any adverse behaviour he/she displays.
  • Seek advice from an experienced Family Lawyer.

If you need more information, or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on (07) 3281 6644 or email mail@powerlegal.com.au.

Wills for blended families

Making a Will is important, particularly if you are part of a blended family. A blended family is a family in which one or both partners have a child or children from a previous relationship. Careful estate planning now should ensure that all of your intended beneficiaries are provided for when you die and that the potential for conflict within the family unit is minimised.

There is no one-fit solution when it comes to estate planning for the blended family. The dynamics and needs within families evolve and personal assets may fluctuate from year to year. However, by identifying the potential issues that might arise within each family unit, and considering some options to address these, an effective estate plan can be accomplished.

The important thing is to discuss your circumstances and objectives with your legal advisor so that your wishes can be properly set out in your Will and other estate planning documents. These documents should be reviewed regularly to take account of changing circumstances.

Competing interests – the common issue

The most typical issues faced by a Will-maker within a blended family are the competing interests of past and present partners, biological children and step-children. The Will-maker is likely to want to look after the current partner and also children from previous relationships. There may also be children of the present relationship and children from the partner’s prior relationship to consider.

Traditionally, a Will for a married couple provides for the estate to go to the surviving partner in the first instance and then upon their death, to the children. This is likely to be inappropriate for blended families – not only must the children of the deceased wait until the step-parent dies before inheriting, but there is a risk that the surviving partner may change their Will so that the deceased’s own children miss out. A further risk is that the assets may over time diminish, leaving little for the deceased’s children.

In some instances, if adequate provision is not made from a deceased estate, an eligible beneficiary may be able to make a family provision claim causing distress, delay and uncertainty during an already stressful time.

The following may provide some helpful suggestions when considering these complex issues.

Immediate gifts and interests in real estate

When making your Will, you may choose to provide an immediate gift to your children upon your death rather than your children waiting to inherit after the death of your partner. A life insurance policy nominating the children as beneficiaries might be appropriate in this instance.

If the estate is significant, the Will could provide for an immediate gift of real estate, money or other valuable asset to the children. This will safeguard against the possibility of your children missing out on an inheritance should your partner later change their Will or your estate assets diminish.

If you and your partner hold real estate as joint tenants, you might consider changing this to a tenancy in common. A joint tenancy means that the share of property held by a deceased tenant automatically goes to the surviving tenant. This cannot be altered by Will. However, if the property is held as tenants in common, your share may be left to your children subject to leaving your partner a life interest in that share of the property.

A life interest will provide your partner a continued right to reside in and use the property until he/she dies at which stage your share will revert to your children. Note however, that life interests can be complex due to circumstances such as health and aging of the surviving partner who may need to downsize or move to an aged care facility. These issues should be carefully considered and discussed with your legal advisor.

Testamentary trust

A testamentary trust is a trust contained in a Will that comes into effect upon the testator’s death. A testamentary trust provides flexibility and control in asset distribution amongst beneficiaries and assists in protecting your assets from third parties and creditors. Assets can be preserved so that they can pass through future generations and the trust can provide for different scenarios.

Testamentary trusts are generally tax effective and may be worthwhile considering in your estate planning if the value of your likely assets warrants the establishment and administrative costs.

Choosing your executor

Your executor is your personal legal representative when you die. He or she has the role of ensuring that the wishes set out in your Will are followed. Your executor will deal with your estate lawyers, accountants, financial advisors and real estate agents. He or she will maintain estate accounts, pay bills and generally oversee the administration of your estate.

Generally, a person’s spouse or child will be nominated for this role. However, because of the dynamics involved in blended families it may be preferable to appoint one or more neutral friends or professionals so that the role may be carried out with impartiality.

Conclusion

These are some important points worth remember when considering estate planning for the blended family:

  • Talk to your partner about your estate planning objectives.
  • List all assets including those held separately and jointly.
  • Consider everybody from the family including spouses, previous spouses, biological and step-children, and identify those whom you wish to benefit – preparing a family tree may be helpful.
  • Contemplate if your choice of beneficiaries might leave open the potential for a family provision claim. You may need to discuss this with your legal advisor.
  • Choose impartial executors.
  • Discuss your objectives with your lawyer so the relevant documents can be prepared.
  • Ensure that you have binding death benefit nominations in place for your superannuation and life insurance policies.
  • Review your Will and plans regularly, and immediately if your personal, health or financial circumstances significantly change.

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 it means now 457 visas have been axed

The Temporary Work (Skilled) Visa program (457 visa) commenced in 1996 with the objective of addressing genuine skill shortages in the Australian labour market. Employers (known as business sponsors) could recruit overseas workers for skilled positions for which they could find no suitable local candidates

The 457 visa allowed migrants to work in Australia for four years and for many, provided a pathway for permanent residency. Visa holders could also apply to bring family members to Australia on a 457 secondary visa.

In April 2017, the Government announced that the 457 visa will be abolished and replaced with a completely new skilled migration scheme. Changes will be implemented in stages with a new Temporary Skill Shortage (TSS) visa anticipated to be fully operational, and the 457 visa obsolete, by March 2018.

The reforms are expected to improve the integrity of Australia’s skilled migration program which has previously been subject to exploitation, and to increase the supply of Australian skilled labour by encouraging employers to invest in local training and development.

Visa applicants will face more stringent processes for securing a visa and businesses will have fewer alternatives and higher requirements for sourcing skilled labour from overseas. Several occupations have been removed from the eligible categories list and higher thresholds must be met for the grant of a visa.

This article explains the implications of the reforms to employers and visa holders.

The new TSS visa – what it means for visa applicants and employers

The TSS visa will comprise a short-term and medium-term stream.

The short-term stream will permit employers to fill temporary skills gaps identified from a list of occupations on the Short-Term Skilled Occupations List (STSOL) for two years.

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). This visa will last for four years.

Less occupations available for visa grants

The STSOL and MLTSSL replace the previous listings of eligible occupations for skilled migration, reducing the number of categories from 651 to 435. Of these, 268 will be available for the short-term (two year) visa and 167 for the long-term (four year) visa.

Amongst the most commonly-used occupations to be removed are human resource advisors, production managers in the manufacturing industry, sales representatives (industrial products), IT professionals (web developers) and training and development professionals. Other occupations and industries affected include accommodation and food services, biochemistry, performance and arts, legal workers and migration agents.

Shorter visa stays and less opportunity for permanent residency

The grant of a 457 visa enabled the holder to remain in Australia for up to four years and, if eligible, to apply for permanent residency after two years. The reforms have had a significant impact upon this.

The maximum duration for the short-term TSS visa will be two years with a once-only onshore renewal capacity. The visa will not provide an opportunity for permanent residency.

The maximum duration for the medium-term TSS visa will be four years with an onshore renewal capacity. The medium-term TSS visa will provide a pathway for permanent residency however visa holders will need to wait for three years before applying (as opposed to the two-year wait under the 457 visa).

Essentially, there will be fewer occupations and opportunities enabling work-related migration to, and permanent residency in, Australia.

More stringent processes for visa applicants

Short-term and medium-term visa applicants will need to demonstrate at least two years’ relevant work experience in their chosen occupation category. This was not previously necessary under the 457 program.

The minimum age limit for a temporary work visa under the previous system was 50 years – this has been reduced to 45 years.

Official criminal clearances will be mandatory for both categories as opposed to the self-declaration system used previously.

Higher standards of English proficiency will apply – applicants for a short-term visa will need a minimum EILTS (or equivalent) score of 5 with a minimum of 4.5 in each test component and applicants for a medium-term visa will require a minimum of IELTS 5 (or equivalent test) in each component. The exemption for certain applicants to meet the English language requirement (currently those whose salary is over $96,400) will be removed.

Visa holders will need to provide Tax File Numbers to the Department of Immigration and Border Protection for cross-checking with the Australian Taxation Office to ensure conformity with salary requirements

More stringent processes for businesses

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

Non-discriminatory workforce testing will also apply, designed to ensure businesses are not actively discriminating against Australian workers. Labour market testing will continue to apply in most cases.

Business sponsors will be required to contribute to a Skilling Australians Fund at the time of nominating a visa applicant. The fee will be $1,200 per year or part year for small business (with a turnover of less than $10 million) and $1,800 per year or part year for all other businesses.

The application fees for TSS visas will be higher than the 457 visa which was last set at $1,060. The fee for the short-term visa will be $1,150 and for the medium-term visa $2,400.

Business sponsors who fail to meet their obligations under the skilled migration visa scheme will be made public.

What about current 457 visa holders and applicants?

The reforms will not affect current 457 visa holders with existing conditions remaining intact.

Applicants for 457 visas who lodged an application on or before 18 April 2017, for an occupation that has been removed from the previous eligible categories, and the sponsoring business for the applicant, may be eligible for a refund of fees.

Conclusion

The reforms narrow the range of occupations available for overseas workers to apply for a visa and restrict businesses to fewer opportunities to recruit from overseas. The deletion of several occupations is considered more suited to Australia’s skills shortage and the overall changes necessary to protect Australian workers, discourage exploitation and encourage more investment in training and development.

The visa process is notoriously complex and the reforms have significant impact upon visa applicants and employers.

If you think you will be affected by the new reforms, or you know somebody who wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au