Archive for the ‘Newsletters’ Category

Can I Stop Somebody from Contacting or Seeing my Child

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

Contact with the Other Parent

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

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

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

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

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

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

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

Other Significant People

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

Conclusion

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

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

Can I Change the Locks After We Separate

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

Leased Property

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

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

Owned Property

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

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

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

What Orders Can the Court Make?

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

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

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

Seek Assistance

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

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

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

The importance of estate planning before capacity becomes an issue

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

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

What Is the Presumption of Capacity?

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

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

How Do You Determine If Someone Has Capacity?

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

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

What Capacity is Required?

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

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

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

What Can I Do for My Loved One?

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

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

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

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

Beyond Reasonable Doubt – Proving the Elements of a Criminal Offence

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

Burden of proof / standard of proof

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

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

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

Why such a high burden of proof for criminal charges?

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

Elements of a criminal offence

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

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

What about strict liability offences?

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

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

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

Defences

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

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

Case example

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

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

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

Conclusion

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

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

Subpoenas and family law court proceedings

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

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

What is a subpoena?

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

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

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

Types of different subpoenas in family law

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

 

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

 

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

 

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

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

Filing a subpoena

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

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

What is ’conduct money’?

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

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

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

What happens once a subpoena is served?

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

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

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

Conclusion

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

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

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

When is a guarantee unenforceable?

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

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

Formal requirements

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

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

In addition to the above:

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

Enforcement of guarantees

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

Misleading or deceptive conduct

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

Non-Disclosure

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

Duress or Undue Influence

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

Married Women

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

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

Unconscionable dealing

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

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

Non est factum

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

Illegality

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

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

Conclusion

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

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

Collaborative law – a new approach to Family Law

Collaborative law is a relatively new concept used to resolve legal disputes. Collaborative lawyers are qualified lawyers with training and experience in dispute resolution and facilitation processes.

Collaborative law involves the parties to a dispute and their lawyers, signing a Participation Agreement which requires them to conduct confidential and transparent negotiations to resolve a matter without recourse to litigation. Generally, the parties will meet several times to work towards a settlement.

The parties must agree not to threaten litigation and the lawyers must not advise the parties to start Court proceedings. If an application is made to commence proceedings in a Court or Tribunal the agreement is terminated and both lawyers must discontinue representing the client.

Collaborative law and family matters

Collaborative law can be used for a range of legal matters including commercial, neighbour and family law disputes.

The process is particularly suited to family law matters as the conciliatory approach has potential to preserve the parties’ relationship. Obviously, this is beneficial when children are concerned given that the parents will need to have ongoing contact and discussions regarding the welfare and care of their children.

An overriding benefit of the Participation Agreement, is the commitment the parties are making to resolve the dispute without litigation.

The parties ‘steer’ their own matter rather than have directions and hearing dates set by a Court or Tribunal. This has the potential to significantly minimise cost and delay, and of course, the stress and anxiety of being involved in Court proceedings.

Clients and their lawyers set the agenda for each meeting and the lawyers liaise with each other regarding the agreed procedural aspects for running the meetings.

By giving the parties collective control over how their matter progresses, settlements may be reached which are less restrictive than what might be ordered by a Court. Parties are not confined to technical legal issues, and can therefore agree on more flexible resolutions that include non-legal matters.

Because collaborative law is non-adversarial, there is no winner or loser. This allows the parties to maintain dignity and respect for each other.

Although each party must give full disclosure of facts relating to the issues in dispute, the discussions and meetings are family-focused with a facilitative approach. The parties must involve themselves in a concerted team effort to settle the dispute.

If necessary, the parties can agree to involve an impartial coach or facilitator to assist in reducing conflict or a professional (accountant, valuer, child specialist) to provide an expert opinion.

Collaborative law at a glance

  • The professionals involved in a collaborative law arrangement are bound by professional conduct rules and client confidentiality.
  • Parties must act in good faith, provide full disclosure and attempt to reach a resolution.
  • Apart from financial disclosure, discussion and documentation will be subject to legal privilege which means they cannot be used in Court proceedings. Only where a professional has a statutory obligation to make a report (for example where a child is at risk) will confidentiality and privilege be overridden.
  • Negotiations are conducted directly between the parties and their lawyers – opinions and ideas are expressed face to face rather than ‘behind’ the forefront of the lawyer.
  • Correspondence between the parties’ lawyers is limited – being replaced by minutes documenting the discussions and decisions made during the meetings.
  • The collaborative process avoids the need for technical legal documents that must adhere to the rules of evidence and can be costly to prepare.
  • Once a settlement is negotiated, the agreement will be legally documented for the parties to approve and sign.
  • Litigation must not be threatened nor commenced otherwise the agreement will be terminated and the parties will need to find alternate representative. This is a considerable incentive to keep parties focused on the issues in dispute and working towards a resolution.

When might collaborative law not work?

Whilst collaborative law is open to all family matters, it may not be suitable if one or both parties are antagonistic, violent, have a drug or alcohol dependency or have severe psychological disorders. Safety issues and significant trust concerns will also be a barrier to effective negotiations.

The parties must be fully committed and not see the collaborative approach as a way around disclosure obligations.

Summary

Collaborative law may not be appropriate for every legal dispute but certainly worth considering as an alternative way to resolve your family law issues.

Lawyers engaging in the collaborative law process should be suitably trained and committed. If the Participation Agreement is terminated both lawyers may no longer act for the parties who will need to find alternate representation.

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.

Surveillance in the Australian Workplace – is it legal?

In the modern era of advanced technology, the issue of employee surveillance and privacy in the workplace has become increasingly relevant. Workplace surveillance can take various forms, including video surveillance, computer monitoring, telephone monitoring, email monitoring, and GPS tracking. There are certainly legitimate reasons for employers to monitor their employees using these means, such as ensuring productivity, preventing theft, or maintaining cybersecurity. However, in Australia, employee surveillance is subject to legal regulation, and employees have certain rights regarding privacy and monitoring in the workplace. This article will provide an overview of the legal framework concerning workplace surveillance.

Legal Framework

The legal framework governing workplace surveillance in Australia is a mixture of federal and state or territory legislation. Generally, state and territory law cover the installation and use of CCTV, and some states also have specific workplace surveillance legislation, while federal law provides broader privacy protections.

Under the federal Privacy Act 1988, and the related Australian Privacy Principles (APPs), employees across Australia have a right to personal privacy, even while performing their job duties. Under this legislation, employers should respect the privacy of their employees and ensure that any surveillance measures are reasonable, proportionate, and necessary for the legitimate business needs of the employer. Excessive or intrusive surveillance that goes beyond what is necessary may infringe on employees’ privacy rights.

It is important for employers to know that data that they collect through surveillance of employees is considered personal information. This includes the image of individuals collected through CCTV recording. Employers must take reasonable steps to protect this personal information from misuse, interference and loss, as well as unauthorised access, modification or disclosure. When an employer no longer needs to hold the personal information for the purpose for which it was collected, it must take reasonable steps to destroy the information or ensure that it is de-identified.

Employees who believe their privacy rights have been violated by surveillance undertaken by their employer have the right to lodge a complaint with the relevant authority, such as the Office of the Australian Information Commissioner (OAIC) or the Fair Work Commission.

Employee Consent to Surveillance

In most states it is necessary for employees to be notified about surveillance in their workplace. This can be achieved through clear policies, employment contracts, or workplace agreements. For some forms of surveillance, the employer must not only inform the employee, but also seek consent. When consent is required, it must be freely given, informed, and voluntary.

There are also specific areas of a workplace that cannot be monitored, including toilets, changing rooms and shower facilities. It is essential that any permitted surveillance does not accidentally record an area where an employee has a higher expectation of and right to privacy.

Covert Surveillance

Covert workplace surveillance is surveillance that takes place without the awareness of employees, and it is strictly prohibited in many jurisdictions across Australia. Even where covert surveillance is prohibited, however, there are exceptions for an employer who has sought authority through the courts. In New South Wales, for instance, a magistrate can issue an authority for the purposes of monitoring unlawful activity in a workplace.

Case Study

Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch was a case that considered the use of covert surveillance in the workplace. In New South Wales, the Workplace Surveillance Act 2005 requires that an employee be given at least 14 days’ notice prior to workplace surveillance commencing and, in the case of camera surveillance, there must be signs notifying employees that they may be under surveillance clearly visible in each entrance. In this case, however, surveillance cameras were installed at a gym with no prior notification and no signage.

An employee at the gym was observed acting in a way that his employee considered a reasonable basis for termination. The dismissed employee applied to the Fair Work Commission on the basis that his dismissal was predicated on information gathered through unlawful surveillance.

When the case was first heard, the CCTV footage was excluded because it was recorded in breach of the requirement that employees be given proper notice. On appeal, the Full Bench of the Fair Work Commission held that, even if the employer’s CCTV footage had been illegally or improperly obtained, the Commissioner had erred in automatically excluding such evidence. The Full Bench stated that the proper approach to be applied in considering whether or not illegally or improperly obtained surveillance should be admitted as evidence requires the consideration of the factors in the Evidence Act 1995 (NSW), including the probative value of the surveillance and its importance to the case.

This case illustrates that, although employers in NSW are required to give notice of surveillance, employees should be aware that their conduct can still endanger their employment if it is captured by undeclared covert surveillance.

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

Avoid nasty taxation surprises in family law settlements

There are significant differences in the tax consequences of certain family law related actions particularly when negotiating property settlement outcomes – the cutting of the cake!

Unique opportunities in the family law environment can enable a couple to lawfully restructure wealth while avoiding, or minimising, the hefty tax and revenue consequences. Conversely, concluding a family law property settlement only to discover adverse and unintended tax consequences is the last thing anyone wants.

Naturally this area is very complex and each person needs to seek their own advice to ascertain their own tax implications from an experienced family law expert.

 Different ways a couple can reach a property settlement

 Separated couples do have choices when it comes to resolving the division of their property. There are a number of ways in which a separating couple can adjust their property interests, most commonly these include:

  • Implementing transfers amongst themselves;
  • By a Court Order (either by consent or after a Defended Hearing);
  • By way of Financial Agreement under the Family Law Act.

This article examines the tax consequences for the different types of assets that are often held. We highlight some beneficial restructuring opportunities that are unique to family law property settlements and, if used with care, can allow spouses to maximise their property settlement outcomes.

There are two main revenue taxes Stamp Duty and Capital Gains Tax:

 Stamp Duty

The Family Law Act contains an exemption from duty payments on transactions which adhere to a Family Court Order or certain financial agreements.

In some cases, if the terms of the order or agreement clearly provide for it, property can also be transferred from a spouse to a company (trustee of a trust), or vice versa.

Rulings as to transactions under Family Law Act Orders and specified financial agreements are usually available from state-based Stamp Duties Authorities as they can be subject to discretionary decisions.

Capital Gains Tax (CGT)

In lengthy marriages it is not uncommon for the property pool to comprise investments acquired many years prior with significant unrealised capital gains. Fear can surround the selling down of these assets to create cash sufficient to implement a property settlement, given the tax liability which will be triggered on the disposal and which will immediately erode the asset pool.

However, if orders are made or a financial agreement reached in accordance with the Family Law Act, the triggering of such CGT liability is automatically deferred as roll-over relief under the matrimonial exemptions of the Income Tax Assessment Act 1997.

This means that the title to the asset passes from one party to the other on the basis that the unrealised gain is deferred until the spouse receiving the asset disposes of it at some future point. The receiving spouse is deemed to have acquired the asset when the transferor did, the extent of any gain being calculated based on the transferor’s cost base at the time of the transfer to the receiving spouse, plus incidental costs.

Roll-over relief also ensures that a pre-CGT asset can be transferred to a spouse while preserving its pre-CGT status.

This relief can potentially be used to address ‘sleeping giant’ tax issues by moving an asset from one spouse to the other (so as to access concessional rates of tax or capital losses available to one spouse but not the other) before a disposal occurs, so that the optimum tax outcome can be achieved in respect of any capital gains.

 A short summary of tax consequences for different types of assets is set out below:

 Real estate

The most common form of real estate is the matrimonial home which is often held in the joint names of the separating couple. Generally, a settlement which involves the transfer of the matrimonial home from one person to the other will not be affected by Capital Gains Tax. This is because the Capital Gains Tax legislation contains a main residence exemption.

Investment properties

Families often have investment properties which are held in the name of one or both of the parties, or in the name of a corporate entity as Trustee for a Family Discretionary Trust.

If the property was acquired after 20 September 1985, a transfer of the property will generally trigger a Capital Gains Tax liability. This means that the difference between the cost of the property and the sale price (or half the difference if the property has been held for more than 12 months), will be added to the income of the person selling and taxed at the marginal income tax rate.

An investment property owned by one spouse can be transferred to another spouse by way of property settlement, with a stamp duty exemption.

Family Trusts

Where a Trustee of a Family Trust holds real estate this can, in some instances, be transferred to a spouse beneficiary through a Court Order or Financial Agreement. This may attract a ‘rollover relief’ which will postpone the payment of Capital Gains Tax.

 Shareholdings

Transfers of shares between spouses and de facto couples are generally subject to Capital Gains Tax unless the transfers are by way of a Court Order or a Financial Agreement which then enables it to attract “rollover relief”.

Motor vehicles

Transfers of motor vehicles are generally not subject to Capital Gains Tax.

Businesses

A transfer of a business or a company structure operating a business or the closure or sale of a business, may have significant taxation consequences.

Specialist advice must be provided in order to ensure that any settlement is undertaken in the most tax effective manner.

 Conclusion

As you can imagine the tax implications that can arise through divorce are almost boundless.  For those who take advice from their specialist lawyers and accountants early in their property settlement, there is potential for some restructuring benefits.

Having a legal expert thinking creatively in terms of options and taking into account the nature and characteristics of the property pool, there is potential to move assets into a position where there are reduced revenue consequences and with deferred and potentially minimised tax consequences.

The law here is very complex and if you know someone who might need assistance feel free to get them to call us on 07 3281 6644 or email mail@powerlegal.com.au.

Your Personal Injury Claim – 7 Common Mistakes

Suffering an injury is a distressing experience, and pursuing a personal injury claim through the courts can be an important step towards seeking compensation for your losses. There are different laws about personal injury claims across Australia, and the processes vary depending on whether your injury happened at work, in a public place, while driving, or as the result of crime. However, regardless of the cause of your personal injury, it is crucial to be aware of the common mistakes that can undermine your claim and potentially reduce the chances of a successful outcome.

In this article, we will highlight several key mistakes to avoid when pursuing a personal injury claim. This information is general only and we recommend obtaining legal advice from an experienced personal injury lawyer.

Mistake 1: Not Notifying the Relevant People

One of the critical mistakes people make after an injury is failing to notify the relevant individuals or authorities. Depending on the circumstances, this may involve notifying your employer, the police for motor vehicle accidents, or healthcare providers

Failure to report an incident promptly can weaken your claim and create challenges when establishing liability or proving the severity of your injuries. It is crucial to report the incident to the appropriate parties as soon as possible to ensure a clear and documented record of the incident.

Mistake 2: Not Keeping Good Records

Proper record-keeping is essential for building a strong personal injury claim. Failing to keep detailed records of important information can harm your case. Maintain a record of dates, times, and locations related to the incident, as well as a chronology of events leading up to and following the injury.

It is also important to gather contact information of any witnesses present during the incident. You should also keep copies of medical records, bills, and any correspondence related to the injury. These records will help substantiate your claim and provide crucial evidence.

Mistake 3: Not Following Doctor’s Advice

Consistency in attending medical appointments and following your doctor’s advice is essential for both your recovery and your personal injury claim. Failing to seek medical attention promptly or missing scheduled appointments can raise doubts about the severity of your injuries or your commitment to recovery.

Insurance companies and other defendants may use this against you to undermine your claim. It is important to prioritise your health and follow through with medical recommendations to support the legitimacy of your claim.

Mistake 4: Posting on Social Media

In today’s digital age, social media can have a significant impact on personal injury claims. Posts that contradict any aspect of your claim can be detrimental to your case. For instance, if your injury causes debilitation but your posts imply that you are leading an active lifestyle this can be raised as evidence in court.

It is wise to be cautious with your social media presence during the claims process. Insurance companies and defence lawyers often scrutinise claimants’ social media profiles for evidence that can be used against them. It is a good general rule for you to avoid discussing your case or posting photos or videos that could be misinterpreted.

Mistake 5: Not Getting Legal Advice

Attempting to handle your personal injury compensation claim without legal guidance is a common mistake. Personal injury law is complex, and insurance companies have teams of experienced adjusters and lawyers working to protect their interests.

Without legal representation, you may not fully understand your rights, the value of your claim, or the negotiation strategies employed by the opposing party. Engaging a skilled personal injury lawyer ensures that your interests are protected and increases your chances of receiving fair compensation.

Mistake 6: Not Reporting Psychological Symptoms

Physical injuries can have both short-term and long-term psychological effects including depression, anxiety and post-traumatic stress disorder (PTSD). In turn, poor mental health can negatively impact on recovery rates of the physical injury or illness and may impact your ability to work and participate in life. As such, your psychological symptoms are important to your personal injury claim. You should report to your doctor and your lawyer if you are experiencing psychological impacts such as anxiety, memory issues or nightmares following your injury.

Mistake 7: Delaying Too Long

Timing is crucial when pursuing a personal injury claim. There are specific time limitations known as the statute of limitations that dictate how long you have to file a claim. Waiting too long to take legal action can result in your claim being time-barred and potentially losing the opportunity to seek compensation. It is essential to consult with a personal injury lawyer as soon as possible after the incident to understand the applicable time limits and ensure your claim is filed within the required timeframe.

Conclusion

You can be injured or suffer loss in almost any area of life whether that is at work, in a motor vehicle accident, in a public place or while receiving medical treatment. Depending upon where the injury occurred, whether or not you were at fault, and your degree of injury, you may be eligible to make a personal injury claim.

No matter what type of claim you are making, it is important to protect your rights and avoid making mistakes that might jeopardise your chances of obtaining the maximum compensation to which you are entitled. 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.