Archive for the ‘Newsletters’ Category

Hiring overseas workers – becoming an Australian standard business sponsor

If you’re running a small or medium sized business and struggling to fill certain roles with quality employees, you may have considered looking overseas to help grow your enterprise. Employer sponsored visas address genuine skills shortages in the labour market by allowing employers to bring qualified workers to Australia to fill positions that they cannot fill locally.

Becoming a business sponsor is a prerequisite to hiring overseas workers on certain visas, namely the Temporary Skill Shortage visa (subclass 482) and Skilled Employer Sponsored Regional (Provisional) visa (subclass 494). Generally, the role to be filled must appear on a relevant skilled occupations list. These lists are updated regularly to ensure they reflect shortages at a given time and may change with little or no notice.

Approved business sponsors have ongoing obligations, and non-compliance can result in penalties such as fines, barring from further nominations and cancellation of sponsorship status.

This information is for general purposes only. Immigration laws are complex and can change frequently and we recommend working with an immigration lawyer with the expertise and knowledge required to help your business secure a skilled workforce.

Becoming a business sponsor

Approval as a standard business sponsor lasts for five years and may be renewed on a continuing basis provided the employer continues to meet the relevant criteria. Once approved, a business may apply for accredited status which provides additional benefits such as priority processing.

Eligibility and process

Applications for approval as a business sponsor are made through the Department of Home Affairs and must be accompanied by the relevant fee. These costs must not be passed onto a prospective employee / visa applicant.

The proposed sponsor must lawfully operate a business within or outside of Australia and nominate the number of positions required over the term of approval. The business must be legally established and currently operating, whether that be through a sole proprietorship, partnership, trust, company or other structure.

Applications must be supported by appropriate evidence such as:

  • an Australian Business Number (ABN) registration certificate;
  • an Australian Registered Body Number (ARBN) registration certificate for overseas entities registered to operate in Australia;
  • a company extract from the Australian Securities and Investment Commission (ASIC);
  • an extract from the ASIC business name register;
  • an Australian Stock Exchange (ASX) listing registration;
  • profit and loss statements / financial reports;
  • joint venture agreements, partnership agreements, franchise agreements;
  • if the business is operating under a trust arrangement, details of the trustee, name and ABN of the trust.

Sponsors must attest to having a commitment to utilising local labour and that they will not undertake discriminatory recruitment practices. Existing Australian businesses must show that they have made genuine efforts to recruit for the occupation locally.

Start-ups and businesses operating outside of Australia

Proposed sponsors that do not presently operate in Australia should provide evidence of registration in the country in which they operate and proof that they intend to establish a business entity in Australia. This may include copies of a company or business expansion plan, joint venture agreement or contract with an Australian entity.

New businesses should provide business plans, bank statements, tax returns for the most recent year/s, business activity statements (BAS), service contracts, lease agreements, and wage records (as relevant).

Adverse information

There must be no adverse information known to the Department about the business or business owner – this is information regarding an event or situation that has occurred within the past three years and which may raise doubts about the applicant’s suitability as a sponsor. Adverse circumstances include:

  • insolvency under the Bankruptcy Act 1966 or Corporations Act 2001;
  • that the organisation or business owner has been found guilty of certain offences (relating to discrimination, immigration, industrial relations, occupational health and safety, people smuggling / trafficking, slavery, sexual servitude, deceptive recruiting, taxation or terrorism);
  • that the organisation is being investigated, has been subject to disciplinary proceedings or legal action, or has been the subject of administrative action.

Sponsorship obligations

Business sponsors have specific reporting requirements and obligations to their workers, which may continue after the employment relationship ends.

As with all Australian employers, sponsors must comply with relevant workplace and health and safety laws and provide workers with the same terms and conditions of employment as would be provided to Australian citizens.

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

The visa holder must only work in the approved occupation.

A sponsor must notify the Department in writing of certain events including:

  • termination of the visa holder’s employment
  • if the visa holder did not start work with the sponsor
  • a change in the visa holder’s work duties
  • the bankruptcy or insolvency of the sponsor
  • changes in the business structure, trading name, legal name, address, owners/directors/partners, etc.
  • cessation of the business

Conclusion

Finding skilled workers can be challenging and businesses may need to look overseas to fill certain roles. Becoming a standard business sponsor enables employers to hire workers under certain visas to fill specified occupations.

We recommend businesses work with an immigration professional to ensure they stay abreast of changes in regulations and policy, so they can find continued opportunities to fill skills shortages.

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.

Parenting orders for non-parents – who can apply?

A parenting order is not only designed to apply to parents or guardians of a child, but non-parents may also apply for parenting orders to be able to spend time with, or care for a child.

The Family Law Act allows a grandparent, or any other person concerned for the child’s care, welfare, or development to apply for a parenting order.

What is a parenting order?

If parents are not able to agree on caring arrangements for a child, either parent may apply to the Federal Circuit and Family Court of Australia for a parenting order.

The Court will make a decision about what caring arrangements are in the best interests of the child. Orders made about children are called parenting orders and each person affected by the parenting order must follow it.

Parents who have come to a mutual agreement as to care arrangements of a child, may also make an application to the Court for legally binding consent orders.

Who can apply for a parenting order?

Section 65C of the Family Law Act allows a range of people concerned with a child’s care, welfare, and development to apply for a parenting order.

This may include:

  • the child’s parents;
  • the child himself or herself;
  • grandparents; or
  • any other person concerned with the child’s care, welfare, or development.

‘Any other person’ may include a sibling, aunt or uncle, a cousin, a family friend, or anyone else with a significant connection to the child.

We recommend you speak to an experienced family lawyer if you are unsure whether you qualify as someone who can apply for a parenting order.

How does a non-parent apply for a parenting order?

If you are not a parent, child, or grandparent, and are seeking a parenting order, you need to satisfy a two-step process.

The first step includes a threshold test where you will be required to prove that you are a person concerned with the care, welfare, or development of the child, in order to bring an application for a parenting order.

The definition of ‘a person concerned with the care, welfare of development of a child’ has been worded broadly in order to permit a wide range of people to apply for parenting orders. It is important to note however, that the Court is stringent when considering applications for parenting orders by people other than a parent or grandparent of a child.

The second step requires parties to attend a conference with a Family Consultant. The reasons why the non-parent is seeking a parenting order are discussed during the conference in order to show the Court that there are circumstances that make it appropriate to make a parenting order in favour of the non-parent.

Applying for a parenting order by a non-parent is a complex process. We strongly recommend you seek legal advice before commencing your application.

Conclusion

If you are a grandparent or any other person concerned for a child’s care, welfare, or development, you may be eligible to apply for a parenting order.

Applications for parenting orders for non-parents can be a complex area of family law so we strongly recommend you seek advice from an experienced family lawyer.

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 still work from home (remotely)

Have you been working from home during the pandemic and are wondering if you are still able to do so, as people return to the pre pandemic world and go back to the office. The answer will really depend upon your particular workplace and circumstances.

This article provides a general guidance for workers as to when it is practical and reasonable to work from home.

Staying safe at work and home

Workplaces can generally allow their employees to work from home at their discretion. Obviously, a workplace must take into account whether there are any health orders mandating that certain employees work from home.

Work health and safety laws require employers to take all reasonable and practicable steps to ensure the health and safety of their workers from the risk of contracting COVID-19 in the workplace.

Employees also have health and safety obligations to minimise any risks when working from home. This may include:

  • following work procedures about how your work is performed
  • keeping your work equipment in good working order and using the equipment provided by your workplace per employer instructions
  • maintaining a safe work environment, such as having a designated work area
  • adjusting your furniture to ensure comfortable access, providing adequate lighting and ventilation in the area you are working from and repairing any uneven surfaces or removing any hazards
  • continuing to ensure your own in-house safety, such as keeping up maintenance of electrical equipment and smoke alarms
  • notifying your employer of any risks or potential hazards present in your workplace
  • immediately reporting any changes that may affect your health and safety when working from home

When is working from home practical and reasonable?

This will largely depend on your particular workplace and the facilities available to work remotely and safely from home. When deciding whether working from home is appropriate for your particular situation, your employer should consider:

  • your individual role and whether working from home is suitable for your work activities
  • workflows, expectations and your workstation set up
  • the surrounding environment in which you will be working from, such as ventilation, lighting and noise, and your home environment, such as partners, children, vulnerable people and pets
  • any communication requirements such as frequency and type
  • your mental health and emotional wellbeing
  • the type of safe working procedures and training required

Any existing workplace policies will continue to apply when working from home. Employers must also continue to consult with their employees and any elected health and safety representatives on working from home arrangements.

What happens if I test positive for COVID-19 while working from home?

If you test positive for COVID-19 you must follow the health advice provided by your local public health authority and notify your employer as soon as possible.

Your employer should have discussed your leave arrangements with you prior to you working from home. If you are unsure of your leave arrangements, you should contact your employer and confirm same. It is also possible that you may continue to work from home if you have no symptoms, or only minor symptoms.

When can I be required to return to my workplace?

This is dependent on a range of factors, including:

  • any public health requirements
  • the individual circumstances of an employee working from home

All employers must ensure return to work arrangements adhere to relevant Australian and local government advice, legislation and that they also undertake a risk assessment and consult with employees before requiring them to return to the workplace.

Conclusion

Whether you are entitled to continue to work from home now that people are returning to the to the office will mostly depend on your type of work and workplace circumstances.

You will also need to continue to have health and safety obligations in place to help minimise any risks when working from home.

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

Domestic and Family Violence Protection (QLD)

Domestic and family violence is a serious issue that affects many people across Australia. A Domestic Violence Order (DVO) is a court order in Queensland designed to protect a person from domestic violence. This article contains information about what constitutes domestic violence, how to apply for a DVO, types of orders, and the consequences of breaching domestic violence orders.

What constitutes domestic violence?

When we think of domestic violence, we most frequently think of physical abuse. However, domestic violence is not limited to physical violence. It can also include emotional, verbal, financial, and sexual abuse, as well as stalking and intimidation. Some common examples of domestic violence include:

  • Physical violence, such as hitting, slapping, or punching
  • Verbal abuse, such as yelling, insulting, or belittling
  • Emotional abuse, such as controlling behaviour or isolation from friends and family
  • Sexual abuse, such as forced sexual acts or coercion
  • Financial abuse, such as controlling access to money or refusing to provide for basic needs
  • Stalking or intimidation, such as following or monitoring someone’s activities.

There are also forms of domestic violence that are less difficult to identify. For instance, it is not well understood that threats of suicide and/or self-harm can also constitute domestic violence. If someone is making these types of threats as a means of controlling or manipulating their partner or family member, this can be very distressing and intimidating for the victim.

How do you apply for a DVO?

To apply for a DVO in Queensland, you can visit your local police station or courthouse. You will need to provide details of the domestic violence you have experienced or witnessed, including any evidence you may have, such as photographs or witness statements.

Once you have applied for a DVO, a court will consider your application and decide whether to issue an order. If the court is satisfied that domestic violence has occurred or is likely to occur in the future, it will make a DVO. A DVO can impose conditions such as prohibiting the offender from contacting you, attending your home or workplace, or possessing firearms. If the offender breaches the DVO, they can face criminal charges and penalties.

In Queensland, a police officer may apply for a DVO on behalf of a victim. To apply for a DVO, a police officer must have reasonable grounds to suspect that domestic violence has occurred or is likely to occur in the future. The application should include details of the alleged domestic violence, and any evidence or witness statements to support the application.

Types of orders

There are a range of different types of domestic violence orders that the courts can issue. These include:

  • Orders which prohibit the perpetrator from committing further acts of domestic violence against the victim.
  • Protection orders, which are issued to protect victims from harm or to prevent the perpetrator from accessing a shared residence or workplace.
  • Ouster orders, which require the perpetrator to vacate a shared residence or workplace. This type of order can be an important safety measure for victims of domestic violence who may feel threatened or unsafe in the presence of their abuser.

Breaching a Domestic Violence Order

It is important for perpetrators of domestic violence to take DVOs seriously and to comply with the conditions set out in the order. A DVO is a civil order and does not result in a criminal record. However, breaching the terms of a DVO is a criminal offence that can result in criminal charges and penalties. Someone who breaches a DVO can expect to be arrested and charged.

The penalties for breaching a DVO vary depending on the severity of the breach and whether the offender has a history of domestic violence, it can result in fines, imprisonment, or both. If you feel that you may be at risk of breaching a DVO, it is important to seek legal advice and support to help you comply with the terms of the order.

An order is breached if any of the conditions listed in the order are contravened. Some examples of breaches of DVOs in Queensland include:

  1. Contacting the victim: If the DVO prohibits the offender from contacting the victim, any attempt to contact the victim, whether by phone, text, email, or social media, is a breach of the order.
  2. Physical proximity: If the DVO prohibits the offender from being within a certain distance of the victim, entering their home, or attending their workplace or other specified locations, any attempt to approach the victim or attend those locations is a breach of the order.
  3. Possession of weapons: If the DVO prohibits the offender from possessing firearms or other weapons, any attempt to possess or use these weapons is a breach of the order.
  4. Indirect contact: If the DVO prohibits the offender from indirectly contacting the victim through a third party, such as a friend or family member, any attempt to do so is a breach of the order.
  5. Failure to attend court: If the offender has been ordered to appear in court for breaching the DVO or attending a court-ordered program, failure to do so is a breach of the order.
  6. Threats of self-harm: A DVO may prohibit someone from making threats of suicide or self-harm. Although such threats may arouse sympathy for the perpetrator, it is important to understand that these actions can be the continuation of the domestic violence.

This information is for general purposes only and we recommend you 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.

Are you a victim of harassment or discrimination in the workplace

All workers have the right to carry out their employment without being harassed or discriminated against. If you find yourself in this position, you may feel alone and powerless. However, it is important to remember that you have legal protections and rights when it comes to harassment and discrimination.

The discussion below provides guidance for workers on what steps to take if they find themselves being discriminated against or harassed in their workplace.

What is “harassment”?  

Under federal legislation, it is unlawful to treat a worker less favourably on the basis of their particular protected attributes such as, a worker’s sex, race, disability or age.

Below are some examples of behaviour that may amount to harassment;

  • telling insulting jokes about specific racial groups
  • sending sexually explicit or suggestive emails or texts
  • displaying racially offensive or pornographic material
  • making derogatory comments or jokes about a worker’s disability
  • asking intrusive questions about a worker’s personal life, including their sex life

Some examples of bullying include:

  • physically or verbally abusing another worker
  • yelling, screaming or using offensive language towards another worker
  • purposefully excluding or isolating a worker
  • psychological harassment or intimidation of another worker

What is “discrimination in the workplace?”

Discrimination occurs where an employer takes adverse action against a worker or prospective worker because of a “protected attribute.” Protected attributes include:

  • race, colour, religion, social origin or national extraction
  • sex or sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • political opinion

“Adverse action” is defined as either doing, threatening or organising any of the following:

  • firing a worker
  • contributing to a worker’s injury as a result of not allowing them legal entitlements such as pay or leave
  • making changes to a worker’s job to their disadvantage
  • treating a worker differently to their colleagues
  • not hiring a potential worker

An example of a recent discrimination case occurred where a labour hire company was found to have discriminated against a worker when they refused to hire the qualified 70 year old due to his age.

What can I do if I’m being harassed or discriminated against?

There are a few options available to you. Initially, you can approach your workplace health and safety or human resources officer or union representative. These people should be able to provide you with helpful advice. You can also report harassment or discrimination to your supervisor or manager.

You can also refer to your workplace policies and procedures which should provide a guide on how your workplace deals with discrimination and harassment, and what prevention strategies are in place.

If your type of employment comes under the jurisdiction of Fair Work Australia, you may also apply to the Fair Work Commission (FWC) for an injunction to stop the harassment or discriminatory behavior. The FWC can also make an order for compensation or reinstatement.

Negotiating with an employer can become overwhelming as there may be a power imbalance. We recommend seeking legal advice from an experienced employment lawyer to ensure you receive the best outcome possible.

Seek legal advice

If you feel that you have been harassed or discriminated against, an experienced lawyer can provide legal advice and options of realistic solutions for your particular situation.

A lawyer can also advocate to protect your current and future earnings and professional reputation by helping you claim compensation for lost income, distress and pain and suffering.

Who else can help me?

The Australian Human Rights Commission (AHRC) has the power to deal with complaints of workplace harassment or discrimination if the harassment or bullying has breached federal legislation. The AHRC resolves complaints through a conciliation process.

Conclusion

Workers who are dealing with harassment and discrimination in their workplace can often feel isolated and overwhelmed. However, it is important to understand the law provides workers with the right to carry out their work, free from discrimination and harassment.

This area of law can become complex and overwhelming, so we recommend you seek advice from an experienced lawyer.

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.

Options to renew in commercial leases – don’t get caught out!

An option clause is a term in a commercial lease that allows a tenant to renew their lease at the end of the original lease period, if they meet certain conditions.

Landlords are not obliged to offer a renewal option. However, it is often in the interests of both parties if they are interested in a long-term commercial relationship.

It is important that you understand the steps you need to take if you want to exercise the option to renew your lease.

How option renewal periods work

Most commercial leases require the tenant to notify the landlord if they wish to exercise an option to renew their lease. For example, if your original commercial lease has a fixed term from 1 July 2022 to 30 June 2025 (3 years), then a 3-year option would cover 1 July 2025 to 30 June 2028.

If you wish to exercise your option to renew correctly, ensure you have notified your landlord:

  • clearly in writing and in accordance with the lease agreement; and
  • within the timeframe specified in your lease (which is referred to as the ‘option exercise window’).

Once you have completed the above steps, your landlord should acknowledge receipt of your decision in writing and start preparing the new lease agreement. They can do this through a new lease with the same terms or by a deed of renewal of lease.

To ensure that the terms of the new lease agreement have not changed to your disadvantage, we recommend you seek legal advice.

The importance of diarising the option renewal period

There will almost always be a time limit on when a tenant can exercise an option to renew which is usually expressed in the commercial lease as a specific date or time period. The usual trend is to allow the tenant to exercise the option to renew from three to nine months before the end of the lease term.

It is important for the tenant not to miss the opportunity to exercise the renewal option as the landlord is under no obligation to renew the lease if the tenant fails to exercise the option.

Courts generally construe option renewal periods strictly

Recent cases show that courts will interpret the timeframe to exercise the option to renew the lease strictly. The Supreme Court has jurisdiction to override the option to renew a lease in the manner required by the lease agreement, however, this is rare. In any event, court proceedings can be very costly.

Provide correct notice – refer to lease agreement and comply with formalities to exercise option

As mentioned above, it is critical to understand the deadline for exercising the option to renew.

Failure to exercise the option in the manner required by the lease agreement, means the tenant will have forfeited their right to exercise the option.

For a tenant to validly exercise their option to renew, they must ensure that the notice is:

  • in the correct format;
  • addressed to the landlord;
  • given and correctly executed by the tenant as named in the lease agreement;
  • served on the landlord within the required timeframe and in accordance with the terms of the lease.

Although providing the correct notice and complying with formalities to exercise an option may seem straightforward, it can become complex. This is why we recommend you seek legal advice from an experienced lawyer.

Conclusion

Exercising an option to renew a commercial lease may seem simple and straightforward. However, this is not always the case. Tenants need to ensure they clearly understand and comply with formalities when exercising their option to renew. Failure to do so can result in a tenant forfeiting their right to exercise the option.

Tenants also need to ensure that the new lease they sign reflects their current lease.

This information is for general purposes only and it is important to obtain professional advice relevant to your circumstances. To ensure you understand your rights and responsibilities regarding exercising an option to renew, we recommend you speak to one of our experienced lawyers.

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.

Gender Dysphoria and the Family Court

Gender dysphoria can be described as medically diagnosed significant distress or impairment, related to a strong desire to be another gender or change primary or secondary sex characteristics.

A decision by the Family Court in the Kelvin case has set an important and welcomed precedent for children wanting to undergo hormone therapy to bring about puberty in the gender the child identifies with.

Currently, where a child, their parents and doctors are all in agreement that hormone therapy should begin, there will be no need to apply to the Court for approval.

The Kelvin decision has been welcomed as this means less stress and anxiety is placed on a child wanting to start hormone therapy for gender reassignment.

What is Gender Dysphoria?

As mentioned above gender dysphoria is the discomfort a person feels with how their body is perceived and may occur when a person feels their biological or physical sex does not match the sense of their own gender. It’s important to note that not all transgender or gender diverse people experience gender dysphoria.

Gender Dysphoria treatment

There are 3 stages of treatment for gender dysphoria.

Stage 1 treatment involves the child taking “puberty blockers” which prevent the child from going through puberty in their biological sex and therefore time to develop emotionally and cognitively where they are able to give informed consent to the next stage of treatment.

Stage 2 treatment consists of the provision of hormone therapy to the child to bring about puberty in the gender that the child identifies with. Hormone therapy has some irreversible effects so it can only commence when the child has the maturity to provide informed consent.

Stage 3 treatment involves surgical interventions, such as chest reconstructive surgery, phalloplasty and hysterectomy.

The role of the Family Court in the treatment of Gender Dysphoria

In Australia, the Family Law Act 1975 gives the Court authority to make orders relating to the best interests of the child relating to non urgent medical intervention. Before 2017, Australia was the only country where transgender adolescents had to seek permission from the Court to start stage 2 treatment for gender dysphoria.

Stage 2 treatment was only available to transgender adolescents, who the Court believed had reached a ‘Gillick’ level of competency. The Gillick test is used to determine whether a child is legally capable of consenting to medical treatment, without their parents’ knowledge or consent. In 2017, however, the case of Kelvin brought about change to this status quo.

The Kelvin case

As mentioned above, the case of Kelvin set a new precedent for the commencement of stage 2 treatment. Kelvin was born female but diagnosed with gender dysphoria at age nine after identifying as male. Kelvin’s father filed an application to the Court containing evidence from an endocrinologist, psychiatrist and a psychologist that supported Kelvin commencing stage 2 treatment. The court decided that there was no requirement to satisfy the Gillick competence test in Kelvin’s case as all parties, including the parents and treating doctors, agreed that Kelvin should proceed to the next stage of their treatment. Therefore, it was not necessary to make an order approving commencement of stage 2 treatment.

The court also declared that previous case law was decided based on potential health repercussions of new medical treatments. By the time Kelvin’s case was heard in the Court, there was a clearer understanding of gender dysphoria and treatment options.

If you or your child’s treating physicians are unsure if your child is ready to start stage 2 treatment, and would like further legal advice on moving forward, we recommend you speak to one of our experienced family lawyers.

Conclusion

The decision in Kelvin is a triumph for gender and family law as it aligns Australian law with contemporary attitudes held by the medical community at large.

It has also been welcomed by children dealing with gender dysphoria, especially where the child consents and wants to proceed with stage 2 treatment and the child’s parents and treating medical practitioners have no objections to the child commencing treatment.

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.

Financial Agreements as an Estate Planning tool

A Financial Agreement is an effective tool for couples in managing their estate planning. Financial Agreements allow couples to pre-determine what they quantify as a fair distribution of their finances and assets, in the event of a relationship breakdown, death of one party, or mental illness.

What is a Financial Agreement?

As mentioned above, a Financial Agreement is an effective tool that helps couples determine ownership of assets and/or liabilities of their marriage or de facto relationship. Financial Agreements can also help ensure your affairs are in order for the remainder of your lifetime and after your death, so as to minimise tax burden, maximise the protection of your assets and ensure that ultimately the right people benefit from your wealth.

Are all Financial Agreements binding?

A Financial Agreement must satisfy certain requirements to be binding;

  • both parties must sign a Financial Agreement;
  • each party must obtain independent legal advice before signing;
  • your individual family lawyer must sign a statement confirming they gave you independent legal advice and provide a copy of this to your partner and their solicitor;
  • it must be clear that the Financial Agreement has not been terminated by any of the parties and has not been set aside by the court.

To ensure your Financial Agreement is legally binding, we recommend you speak to one of our experienced family lawyers.

Why is a Financial Agreement beneficial?

Financial Agreements are generally beneficial for anyone, especially for:

  • Couples who are bringing assets to a new relationship, especially where this is a subsequent marriage/de facto relationship. If one of the parties has children from a previous relationship, a term can be included in the Financial Agreement stating that assets are to be divided upon one of the parties’ death as if they were separate. This should also be reflected in your Will.
  • Children who are likely to receive a significant inheritance upon their parents’ passing. A Financial Agreement will help parents preserve this inheritance for their child, in the event of their child’s relationship with their spouse or de facto partner ending.
  • ‘Generational wealth transfer’ – this occurs where parents are preparing to retire and hand over the family business to their child and their child’s partner. The Financial Agreement in this case is designed to protect the family business that has been in the family for many years.

A Financial Agreement is generally more cost-effective than attempting to negotiate a property settlement and possible court proceedings post-separation. A Financial Agreement will continue to operate despite the death of a party and will operate in favour of, and be binding on, the legal representative of that party.

For further information on the advantages and disadvantages of a Financial Agreement, we recommend you speak to one of our experienced family lawyers.

How does a Financial Agreement affect your estate?

A Financial Agreement predetermines the financial outcome of a relationship when it breaks down, and consequently removes the discretion of the Court to divide a couple’s assets. This means that parties can enter into a relationship secure in the knowledge that if they separate, each party will preserve and protect what they brought into the relationship. Financial Agreements should also be mirrored in the parties’ respective Wills.

A Financial Agreement binds the estates of married and de facto couples, meaning that if you lose mental capacity or die, your estate is still bound to honour the terms of your Financial Agreement for division of your finances and assets.

Conclusion

A Financial Agreement can serve as a safety net and is an effective tool for estate planning. If you do not end up needing to use it, you have lost nothing, however it will give you peace of mind about you and your loved ones’ future.

There are various requirements that must be met for a Financial Agreement to be legally binding and the area of law regarding Financial Agreements can be complex, this is why we always recommend obtaining legal advice from an experienced family lawyer.

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 dos and don’ts of motor vehicle accident claims

If you have sustained an injury as a result of a motor vehicle accident (MVA) and are thinking of making a claim for your injuries, it is important to know the “Dos and don’ts” of trying to claim compensation.

Many people think claiming compensation for MVA injuries is an easy process, however it can leave you exposed to insurance companies who have plenty of experience in defending compensation claims.

You have one shot at obtaining the best compensation outcome, so we strongly recommend you obtain legal advice from our personal injury lawyers before proceeding with your claim.

Below is a list of the dos and don’ts when it comes to claiming compensation for MVA injuries.

DON’T go it alone – seek advice from a specialist MVA injury claims lawyer

As mentioned above, insurance companies and specialist insurance investigators have extensive experience when defending MVA compensation claims. It is in their best interests to pay out as little compensation as possible for your injuries. Obtaining legal advice from an experienced lawyer who specialises in MVA compensation claims is vital so the insurer does not have the upper hand with your claim.

People are sometimes tempted to choose a lawyer solely based on price and location. It is important to choose a lawyer based on their track record and experience. When searching for a lawyer, you should ask if they have experience dealing with personal injury claims. You can usually find this information on their website or via the Law Society.

Most lawyers these days are flexible and will represent clients regardless of their location. Most lawyers are also happy to have remote meetings with their clients so don’t be put off by a lawyer that is not local to you.

It is vital to choose the correct lawyer so that you receive the maximum amount of compensation you’re entitled to.

DO report the accident to the police

You must report the MVA to the police as soon as possible from the date of the MVA. This is very important as it assists in proving that your claim is genuine and not exaggerated. Once you have reported the MVA to the police you will be provided with an Event Number. The insurer will require this to open an MVA compensation claim on your behalf. If police did not attend the scene of the MVA, you should call them as soon as possible and report the MVA.

If you have not reported the MVA within the specified time frame of the incident occurring, we strongly recommend you speak with one of our specialist lawyers who will be able to assist you.

DO keep records, especially photographs

It is vital to take photos or video of the location of the accident, all of the vehicles involved (and especially their registration plates) and the drivers and their licences.

It is very important to keep documentation of any damages and injuries sustained from the MVA. This will assist in proving the extent of your injuries. It is also important to document any receipts for medical expenses incurred from receiving treatment for your MVA injuries. We recommend you keep a folder containing these images.

DON’T settle too soon

As mentioned previously, insurance companies will try and settle your matter as quickly as possible by offering you a compensation amount upfront.

We do not recommend you accept an insurer’s first offer as our experience shows that when a person appoints a lawyer to assist with their MVA claim, they can receive a much better financial settlement.

This is another reason why it is so important to seek advice from a personal injury lawyer.

DON’T delay claiming and seeking legal advice.

MVAs need to be reported to police as soon as possible. If you don’t report the MVA because you believe your injury is insignificant and not worth making a claim for compensation, you should still seek legal advice as to your entitlements. There have been instances where injuries have worsened over time leaving the injured person with significant loss. We recommend you speak with one of our personal injury lawyers as soon as possible to prevent this from happening to you.

Conclusion

MVA injuries are common and many people receive injuries as a result. Many of these people also attempt to resolve their MVA claims on their own without the advice or support of a lawyer. Making a claim for compensation for an injury sustained as a result of an MVA can be confusing, complex and overwhelming, not to mention dealing with insurance companies who do not have your best interests at heart. This is why we strongly recommend seeking legal advice for anyone wishing to make an MVA compensation claim.

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

Tips for getting ready for Family Court

Settling your family law matter in the court system can be stressful, expensive, and most likely, a lengthy process. Understanding the timeline of court directions and procedure will help you prepare for the process.

This article provides the most important tips to help make the court process as smooth and productive as possible.

It is important to remember that court proceedings should be relied on as a last resort after all attempts made to negotiate a settlement.

We strongly recommend that you seek legal advice from an experienced family lawyer before commencing a court application.

Understanding the timeline for court hearings

Family law matters proceed through the Federal Circuit and Family Court of Australia. There are four types of hearings that usually take place during family law proceedings in the court, these include:

  • Direction Hearings or Mentions;
  • Interim Hearings;
  • Call overs; and
  • Final Hearings.

Learning about proceedings in the FCFCA

They say knowledge is power, so we recommend you invest some time educating yourself about procedural issues and the law. If you have a family lawyer managing your matter, ask them to explain the process to you in simple language.

If your proceedings involve a property settlement, you should have a thorough understanding of the likely outcomes and property division. If your proceedings involve the care of children, you should ensure you understand the possible outcomes for orders and arrangements for your children.

If you are unable to pay for a lawyer to represent you, you can request an appointment for representation from a Legal Aid lawyer, or at the very least, seek legal advice in relation to hearings.

Identify the issues in dispute

It is imperative that you work out the legal issues you and your ex-partner cannot agree on.  Clarify what you want to achieve from the hearing, and understand the other party’s wants.

When the differences between each party are clear, make a list of the strengths and weaknesses of your case. Plan how you will respond to any arguments made by the other party in relation to weaknesses in your matter.

Ensure that you:

  • have relevant documents ready to hand to the Judge or in your sworn affidavit;
  • have prepared written submissions to be handed up to the Judge;
  • include a chronology of events, if appropriate;
  • write out the orders you are seeking.

Doing the above, even if you have legal representation, will assist your lawyer preparing your case and may even save you costs in legal fees.

Evidence

The court can only consider evidence that is relevant to your matter and ‘admissible’ (i.e., able to be used in court). Evidence is usually admissible if it supports a party’s argument, or helps to weaken the other party’s argument.

Be objective about the evidence required. The evidence must be directly linked to your argument.

Don’t use unnecessary evidence which may be distracting. At the same time, you must keep in mind your duty to disclose material relevant to the issues in dispute.

Sometimes evidence that might seem relevant can’t be used in court.

The rules surrounding evidence can be complex so we strongly recommend you seek legal advice in relation to the evidence you will be relying on.

During the hearing

The general dress code for court is business attire, you should ensure you look neat and tidy. When entering and leaving the court room, it is etiquette to bow to the Judge and always stand when the Judge speaks to you. Ensure that your mobile phone is switched off. Following good court etiquette gives the Judge an indication of your character.

Remaining calm and reasonable in court, regardless of how heated arguments become, is very important as it shows the Judge that you are generally a calm and reasonable person.

When the Judge asks you a question, ensure you directly answer that specific question. Courts are under pressure from time constraints and appreciate direct and straightforward answers to questions.

Video conferencing

The court conducts hearings both in person and electronically via video link and telephone. This is referred to as ‘video conferencing’. The court will advise if your matter is listed for a remote hearing.

Electronic hearings are conducted as proper and formal court hearings which means the usual Rules of Court, court procedures and etiquette are expected to be complied with.

You can request your hearing be conducted electronically (using the relevant form which can be found on the court website). The court may also direct that the hearing be held via video link or telephone.

How do I find out where and how my hearing will take place?

You can usually find the above information by checking court orders, if your hearing was listed when the judge or registrar made the orders, or in emails or letters about your matter from the court.  If your hearing is listed to be heard electronically, the court will send you or your lawyer an email with instructions on how to join the hearing and what documents you will need to provide the court before the hearing date.

  Conclusion

Preparing for a family court hearing involves a lot of work and is time consuming. Ensuring that you have all documentation required and a thorough understanding of court procedures is vital for a successful outcome.

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.