Archive for the ‘Newsletters’ Category

Coming to Australia – finding the right visa and navigating the pathways

Although Australia’s immigration laws are complex, there are many visas providing eligible applicants an opportunity to live, study, and / or work in Australia. Many visas provide pathways to permanent residency and allow the visa holder to bring eligible family members.

Understanding different visa categories and working with an immigration professional can help identify the most appropriate visa type, and implement strategies towards achieving your immigration goals.

Choosing the right visa – working with an immigration professional

Immigration lawyers use knowledge of the legal system and their understanding of immigration processes and policies to find the most appropriate visa type suited to their clients’ skills, qualifications, and personal circumstances.

Essentially, visas are grouped into categories or classes that share common factors and have specific eligibility criteria applicable to each subclass. All visas have conditions attached which must not be breached by a visa holder. An immigration lawyer can assist in determining your eligibility for a visa and explain the relevant conditions.

Information provided by a potential visa applicant is cross referenced with the criteria required for various classes to narrow down options and identify the most suitable pathway. Often, a number of pathways are explored before determining the most appropriate.

If the criteria for a desired visa type cannot immediately be met, a strategy may be implemented so the applicant can meet the criteria in the future. In the meantime, it may be possible to apply for a different visa type or a bridging visa with the objective of applying for the required visa once the eligibility criteria can be met.

Popular visa types

Following is an overview of popular visa categories demonstrating the range of visas that may allow migration to Australia. Each visa type is subject to change and everybody’s circumstances are unique, so it is advantageous to work with an immigration specialist to find the most feasible pathway.

Skilled Visas – employer sponsored

If you want to work in Australia and have the necessary skills and qualifications, a range of work visas may be appropriate for temporary or permanent residency.

The Australian Government recognises the economic value that skilled individuals bring to the country and has implemented programs to address skills shortages and assist employers fill genuine vacancies. In some cases, the grant of a provisional (temporary) visa may lead to eligibility for permanent residency.

The Temporary Skill Shortage (subclass 482) visa allows employers to bring skilled workers into Australia to fill vacancies that cannot be filled locally. Applicants must have the skills, qualifications and experience specified for a selected occupation on one of the skilled occupations lists. These lists are regularly reviewed. The employer must be an approved business sponsor and employ the visa holder in the nominated position. There are presently three streams:

  • The short-term stream grants a visa for a maximum two-year duration (or 4 years under International Trade Obligations) with a once-only renewal option.
  • The medium-term stream targets long-term skills gaps and grants a visa for up to four years with an opportunity to renew indefinitely whilst the occupation remains on the list. This visa offers a potential pathway for permanent residency after three years provided the visa holder meets the eligibility criteria and has complied with all visa conditions.
  • The labour agreement stream applies to employers who have entered into a labour agreement, and grants a visa for up to four years, with an opportunity to renew and to seek permanent residency, subject to eligibility, after three years.

The Employer Nomination Scheme (subclass 186) visa allows skilled workers who are nominated by an Australian business for an eligible occupation, to live and work in Australia permanently. Visa holders may enter under a Temporary Residence Transition stream, Direct Entry stream, or Agreement stream.

The Regional Sponsored Migration Scheme (subclass 187) visa allows skilled workers who are nominated by an approved Australian business operating in a regional area to live and work in Australia permanently under a Temporary Residence Transition stream or Direct Entry stream.

Business Innovation and Investment Visas

The Business Innovation and Investment (subclass visa 188) provides opportunities for experienced business operators, entrepreneurs or investors with significant assets to establish and operate a business or manage investment activity in Australia. These visas are very complex and only those invited by a state or territory government, after the successful submission of an expression of interest, may apply.

Business innovation visas may be appropriate for those with good business skills wishing to operate an existing business or establish a new business in Australia. Applicants should have sound business experience, adequate financial resources and assets and the business must be considered to be of economic benefit by the nominating state or territory. Holders of business innovation visas can live in Australia and operate their business for four years and may be eligible for a permanent visa afterwards provided the business is viable, has achieved specific targets related to growth and performance and all other criteria is met.

Investor visas require visa holders to invest in complying Australian investments of substantial amounts (from $1.5 million to $15 million) for a minimum of four years. The terms and types of investments are very specific, and applicants must have a genuine intention to reside in the state or territory in which the nominating agency is located.

Partner Migration

Partner visas allow married or de facto partners of an Australian citizen, permanent resident or eligible New Zealand citizen to travel to and live in Australia. Successful applicants are initially granted a temporary visa and, provided there is a continuing long-standing relationship (and other criteria are met) the grant of a permanent visa follows, usually after two years of the initial application. Applicants for partner visas must be sponsored and meet health and character requirements.

For partners intending on marrying, a prospective marriage visa may be granted. This is a temporary visa remaining valid for up to nine months. Once granted the applicant should enter Australia and marry within that time. After marriage, the applicant may apply for a partner visa.

Student Visas

Student visas are available for people wishing to study in Australia. These include Vocational Education and Training Sector, Higher Education Sector and Post-Graduate Research Sector visas allowing students to stay in Australia whilst studying fulltime.

Conclusion

The Australian immigration system is constantly changing with numerous visa types and various eligibility criteria to work through when lodging an application.

Immigration matters can be complex, and it is important to have a good relationship with an experienced professional who will assess your circumstances and provide advice and guidance to find a workable pathway towards your immigration goals.

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 benefits of Testamentary Trusts

Having worked hard over the years to accumulate wealth, most people want to ensure that their assets are available for future generations and not squandered by a frivolous beneficiary or accessible to an unintended recipient.

If you have acquired reasonable assets, have a blended family, or at-risk beneficiaries, then having a testamentary trust in your Will may significantly benefit those inheriting from your estate.

You may have heard of a testamentary trust in the context of financial or estate planning. But what is a testamentary trust, why do people have them and, more importantly, how can a testamentary trust benefit your family?

What is a testamentary trust?

A testamentary trust is a trust contained in a Will that comes into effect after the Will-maker (testator) dies. A trustee, pre-appointed in the Will by the testator, manages the trust which is usually established as a ‘discretionary trust’.

The discretionary nature of the trust means that the trustee may choose how and when the deceased’s assets are distributed to the beneficiaries. The beneficiaries or classes of beneficiaries are pre-determined in the Will and trust.

The flexibility and control in distributing assets to beneficiaries has many potential benefits and can ensure assets are retained for future generations. This flexibility and control is key to accessing the benefits available through a testamentary trust.

Favourable taxation treatment

Determining when and how income and assets are distributed from a testamentary discretionary trust can have a significant impact on how beneficiaries are taxed.

Income can be divided between beneficiaries to take account of their individual tax thresholds and financial circumstances.

For example, children under 18 years receiving distributions from the trust can generally access the adult tax-free threshold (presently $18,200), rather than being taxed at the (higher) flat rate which would normally apply to minors who receive ‘unearned income’. This can result in considerable tax savings with tax-free or minimally-taxed income distributions used to pay for children’s education, health and other expenses.

The flexibility to retain assets rather than transferring them at the time of the testator’s death can also be advantageous. The trustee’s discretion to choose the recipient of a major asset (such as real estate) and when that asset should be transferred can take into account Capital Gains Tax (CGT) issues and, with careful planning, avoid or postpone a liability for CGT. The same principle applies in determining if and when to sell an estate asset.

Protection of assets

A testamentary trust is ideal for protecting assets from going to those who were not intended to benefit from the estate, such as an ex-partner of the testator’s child or a creditor of a bankrupt beneficiary. Provided the trust is structured properly, in many cases assets will not be available to these third parties and can be preserved for those with whom a testator intended to share his or her wealth.

This protection is available because assets held in a testamentary trust are not ‘legally’ owned by any individual – in other words the beneficiaries have no ‘proprietary’ interest in the assets. Accordingly, the assets are not considered a resource of the beneficiary and may be exempt from a claim by an ex-partner in family law proceedings or a creditor of a bankrupt beneficiary.

By way of practical example, if a beneficiary was facing bankruptcy a trustee could refrain from making a distribution from the trust to that person, as doing so would only make the asset accessible to a creditor. By retaining the asset in trust, it is protected and does not constitute available property of the bankrupt beneficiary.

The protection described above also applies to ‘at risk’ or vulnerable beneficiaries such as those with disabilities, gambling or drug addictions. In these cases, distributions can be carefully monitored and managed.

Testamentary trusts for blended families

In some circumstances, a modest estate may also benefit from a testamentary trust. This may be so where the testator is part of a blended family, particularly if it is expected that estate assets are likely to increase over time.

The typical challenges faced by a testator within a blended family are the competing interests of past and present partners, biological children and step-children. Whilst it is likely that a testator wants to provide for the current partner, there may also be his or her own children from a previous relationship, step-children and / or children from the present relationship to consider.

The flexibility of a testamentary trust, enables the testator to include a set of provisions to apply if the current partner survives him or her, and an alternate set of provisions which will apply if the current partner does not survive the testator.

The trust can be drafted to provide immediately for the current partner (through a right of residence and income) whilst preserving assets for residual beneficiaries (such as the children). The objective here is that the testator’s assets can be immediately utilised by a first-generation beneficiary, whilst being preserved for future (residual) beneficiaries.

Summary

A testamentary trust provides flexibility in distributing your estate and enables wealth to pass to future generations. Beneficiaries may benefit from considerable tax savings and the trust can effectively safeguard assets from third party claims and protect at-risk beneficiaries.

A trust however, is a complex structure requiring effective management and administration. If you are considering having a testamentary trust in your Will, you should seek legal advice to ensure it is properly structured and the perceived benefits outweigh the likely costs of ongoing management.

The trustee will have a key role in the ongoing control of your estate assets. Care must be taken in appointing an appropriate person or entity. Although it is common to appoint the executor or a major beneficiary, this may not be in your best interests. A discussion with your lawyer setting out your family circumstances and objectives will assist in making the right choice.

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

Have you been terminated? Understanding unfair dismissal claims

Most employer/employee relationships are now governed by the Fair Work Act 2009 (Cth) which sets out minimum standards of employment and provides protection for employees against unfair or unlawful dismissal.

If you believe you have been unfairly or harshly treated in your workplace, you may be entitled to make a claim through the Fair Work Commission.

This article provides an overview of unfair and unlawful dismissal in the workplace. The information is intended to be general only, and we recommend obtaining legal advice relevant to your circumstances.

Termination and unfair dismissal

Termination of employment occurs through the voluntary resignation of a worker or dismissal by the employer on the grounds of redundancy or for other reasons.

When terminating an employee, employers must act in a fair and appropriate manner, otherwise the termination may constitute an unfair dismissal. An unfair dismissal is a dismissal that was:

  • harsh, unjust or unreasonable;
  • inconsistent with the Small Business Fair Dismissal Code;
  • not a genuine redundancy.

If you have been dismissed from your workplace and believe the circumstances surrounding your termination were harsh, unjust or unreasonable, you may be entitled to take action against your employer to enforce your rights. Remember, a ‘dismissal’ may also include situations where you felt compelled to resign due to certain conduct engaged in by your employer. This is known as ‘constructive dismissal’.

In considering whether a dismissal is harsh, unjust or unreasonable, the Commission will consider a range of matters including:

  • whether there was a valid reason for the dismissal, including issues of the safety and welfare of other employees, and whether the worker was notified of that reason;
  • whether the worker was given an opportunity to respond to issues of capacity or conduct;
  • whether the worker was unreasonably refused to have a support person present during discussions regarding the dismissal;
  • whether issues of unsatisfactory performance, if relevant, were raised before the dismissal.

The size of the employer’s business and an absence of human resource personnel and how that may have impacted the dismissal processes followed may also be taken into account.

A legal advisor can help determine whether the circumstances leading to your dismissal may have been harsh, unjust or unreasonable.

An employee will not be considered to have been unfairly dismissed if the termination was due to a genuine redundancy.

What is a genuine redundancy?

A genuine redundancy occurs when:

  • the employer no longer requires the employee’s job to be done by any other person, or the employer becomes bankrupt or insolvent;
  • the employer has complied with any consultation obligations relevant to an enterprise agreement or award; and
  • it would not have been reasonable for the employer to redeploy the employee within the enterprise or other associated entity – the employer must ensure there is no suitable alternative position available.

A genuine redundancy can generally be shown by the introduction of new technology which replaces human labour, the discontinuance of the business operations, relocation of the business interstate or overseas, or the restructuring of an organisation.

Subject to the employee’s length of service and type and conditions of employment, the employee may be entitled to receive redundancy pay.

If a purported redundancy is not genuine, then the employee may pursue a claim for unfair dismissal. Depending on the circumstances, a redundancy that is not genuine may be shown, for example, if an employer advertises the same position immediately after terminating an employee.

Who is protected from unfair dismissal and what are the remedies?

If the Commission is satisfied that a person protected under the Act has been unfairly dismissed it may order reinstatement (to the previous position or another position with no less favourable terms) or the payment of compensation.

Employees are generally protected from unfair dismissal if they are covered by a modern award, an enterprise agreement or earn a salary below the (indexed) high income threshold (currently $153,6000) and have:

  • completed 12 months’ employment with a small business (a business with fewer than 15 employees); or
  • completed 6 months’ employment with a larger business.

Note, small business employers are provided additional protection from an unfair dismissal claim if the dismissal is consistent with the Small Business Fair Dismissal Code.

Although the primary remedy for unfair dismissal is reinstatement, this may not be feasible in the circumstances. In such cases compensation may be awarded in accordance with the thresholds set out by legislation.

Other protections – unlawful dismissal

Sometimes a person may not meet the criteria required to pursue an unfair dismissal claim however there may be other options available to enforce their legal rights.

A worker may take action against an employer for certain unlawful activities (adverse action) under the general protection provisions of the Fair Work Act or for discriminatory conduct, harassment or bullying.

Discrimination may be on grounds of race, colour, gender, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, ethnic, national extraction or social origin.

A claim may be pursued in circumstances where employment is terminated for a range of unlawful reasons such as temporary absences related to illness or injury, union membership, making a complaint or participating in an inquiry or legal proceedings against an employer, or absences during parental leave.

Each matter must be assessed in light of the relevant circumstances. We recommend that all employees experiencing issues in their workplace keep written records of incidents, discussions, negotiations and performance reviews.

Conclusion

If you are confronting a workplace issue, it is natural to feel vulnerable and confused. If you have been terminated and are unsure whether the termination was lawful, or if you are facing disciplinary action in your workplace, obtaining professional advice can help you to understand, and protect your legal rights.

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

Divorce, de factos and superannuation splitting

Once a couple is separated, their superannuation (Super) is treated as property under the Family Law Act 1975 (Cth) (FLA) and the value of the couples’ Super benefits will be taken into account when determining a property settlement.

Super is held in trust and differs from other types of property, there are rules that govern when a party is able to access their Super funds. Laws regarding Super splitting apply to both married and de facto couples equally, except in Western Australia (WA).

Super splitting can be a complex area of law and you should ensure you know exactly where you stand regarding Super entitlements after separation or divorce.

Valuing your superannuation

The Family Law (Superannuation) Regulations 2001 (Regulations) provides different methods for valuing Super interests. The methods provided in the Regulations can be confusing, overwhelming or inappropriate for some Super interests. This is why we strongly recommend you seek advice from an experienced family lawyer on the best valuation method available for your type of Super fund.

If you want to obtain information about your Super for valuation purposes, you will need to do the following:

  • Complete a Form 6 Declaration;
  • Complete a Superannuation Information Request Form;
  • Send both forms to the trustee of the fund.

These forms can be found on the Family Court website. Your Super fund may charge a fee for processing the forms. Your lawyer is also able to complete the forms on your behalf, which is recommended as family lawyers have experience in filling out Super Information Kits. This will ensure the forms are completed correctly at first instance, helping you save time and money.

What factors are considered when determining the value of the superannuation split?

Financial contributions are not the only factor considered when assessing the value of a Super split. Non-financial contributions such as care of children of the relationship and the family home may also be considered. The Family Court may also consider the financial position of both parties after their divorce or separation when determining the value of a Super split.

Splitting your superannuation

Before negotiations commence in relation to the splitting of Super, it is vital to speak to a lawyer who can help you place a “payment flag” on both parties’ Super accounts. This will prevent any party withdrawing money from the accounts before the accounts have been valued.

Splitting super does not necessarily convert the amount split into a cash asset.  After the agreed amount has been transferred to a parties’ super account, it must remain there until a condition of release of Super is satisfied, for example preservation age reached, severe financial hardship or terminal illness.

In WA, further legislation to give effect to a scheme for superannuation splitting for parties in a de facto relationship is yet to be passed. Once this occurs, parties who have been in a de facto relationship will be eligible to seek Super splitting only if:

  • they are separated;
  • have not made a BFA; and
  • there are no final Family Court Orders existing between them.

Married couples in WA are able to obtain super splitting orders which are subject to Commonwealth laws when determining a Super split.

Methods used to split superannuation

There are a few methods in which Super can be split. The method applied will largely depend on whether both parties can come to an agreement on the amount of Super that will be included in the property settlement.

Super may be split as part of a binding financial agreement (BFA). If your BFA did not provide for a Super split, it is still possible to add a Super agreement to the BFA after your relationship has ended. If there is no BFA in place and both parties have agreed to a Super split, they can file an application for Consent Orders with the Family Court.

The Family Court will review the parties’ Consent Orders to ensure they are fair and reasonable. The Consent Orders will then be made into a Court Order, which means the orders are then legally binding on both parties.

If parties are unable to reach a mutual agreement on splitting their Super, the Family Court will determine the division of the Super split by considering a range of factors. This type of Court Order is known as a Financial Order.

As is clear from the above discussion, splitting Super can become a complex task. This is why we recommend seeking further advice and guidance from an experienced family lawyer.

Conclusion

Couples who are going through divorce or separation proceedings can feel stressed and overwhelmed, especially when it comes to property division. Super splitting is usually a complex area of property division, especially when parties cannot reach a mutual agreement.

There are various and complex methods of valuing and splitting Super funds under the Regulations, some people may also discover that none of the valuation methods are suitable for their Super account. After the agreed amount has been transferred to a party’s Super account, it must remain there until a condition of release of Super is satisfied.

If you want to ensure you receive the correct amount of a Super split, we strongly recommend you seek legal advice from one of our experienced family 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.

When are you entitled to motor accident compensation

If you are injured as a result of a motor accident caused wholly or partly by another driver, you may be entitled to compensation.

The Motor Accident Insurance Act 1994 (Qld) establishes a compulsory third party (CTP) insurance scheme which covers liability for personal injuries arising out of certain motor accidents to compensate injured parties who were not at fault or only partly to blame for their injuries.

When we refer to a motor accident most of us think about collisions involving two or more motor vehicles. However, there are a range of other incidents that may lead to injury, entitling an innocent person to claim compensation.

This article explains how CTP insurance works and the types of accidents for which compensation may be payable to those injured due to the negligence of others.

The attribution of liability for a motor vehicle accident can be complex and technical and strict time limits apply for claiming compensation. If you or somebody you know has been injured in a motor accident it is important to obtain prompt legal advice.

What is CTP insurance?

CTP insurance is mandatory for all registered motor vehicles used or intended to be used on a public road. An owner cannot register a motor vehicle without first obtaining CTP insurance, which covers the owner for legal liability for the injury or death of a person arising from the negligent use of the vehicle.

Essentially, CTP insurance applies to the relevant motor vehicle so that any act that causes injury through its negligent use (whether by the registered owner or other person with control of the vehicle) is covered.

Legal liability is placed on the registered owner and / or driver (who is indemnified through insurance) even in situations where the owner is not the ‘real’ wrongdoer. In practice, this ensures that an innocent person injured within the scope of the Act may be compensated no matter what the circumstances – for example, where injuries are sustained by a person during a collision with a stolen vehicle being negligently driven by a thief.

 

 

What is a ‘motor accident’?

The CTP scheme is fault-based, which means that compensation is not payable unless an injured road user can show that the injury was due (or partly due) to the negligence of another person.

The Act has broad application in terms of the circumstances that may lead to a compensable injury. Section 5 states that the Act applies to ‘personal injury caused by, through or in connection with a motor vehicle if…the injury –

is a result of:

  • the driving of the motor vehicle; or
  • a collision, or action taken to avoid a collision, with the motor vehicle; or
  • the motor vehicle running out of control; or
  • a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and
  • is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person.’

This means that a collision between two vehicles need not have occurred. Injuries sustained by a person taking evasive action due to the negligence of somebody else, or in circumstances involving an out of control or defective motor vehicle, may entitle that person to compensation.

Effectively, a claim may be made by:

  • a driver of a motor vehicle (whether or not the driver is the owner);
  • a passenger (whether or not an injured passenger is related to an at-fault driver);
  • motor cyclists and pillion passengers;
  • cyclists, pedestrians and other road users.

A motor accident claim may also be made by persons witnessing an accident, family members who observe injuries or death, and dependants of injured persons.

For example, in Caffrey v AAI Limited [2019] QSC 7, a senior constable who sustained psychiatric injuries after responding to and witnessing the aftermath of an accident was awarded damages by the Court.

The plaintiff provided first aid and comfort to the driver of a motor vehicle moments before he died from catastrophic injuries after colliding with a tree. The constable also comforted and assisted the deceased’s parents who subsequently arrived at the scene.

The matter proceeded to court after failing to settle in accordance with the provisions of the Act. However, in its deliberations, the Court acknowledged that the circumstances gave the plaintiff a ‘prima facie entitlement to recourse under the statutory scheme’ having met the criteria in s 5(1)(a) and (b) of the Act.

What is a motor vehicle?

A ‘motor vehicle’ is a ‘mechanically propelled vehicle’ and a vehicle for which registration is required and includes a trailer.

Unless the motor vehicle accident from which the injury arises occurs on a road, it does not include a tractor, backhoe, bulldozer, end-loader, forklift, industrial crane or hoist, or other mobile machinery, an agricultural machine, a motor vehicle adapted to run on rail or tram tracks or an amphibious vehicle.

Uninsured or unidentified motor vehicles

A person may sustain injury on a road or in a public place due to the negligence of a driver in circumstances where the driver and / or motor vehicle is unidentified (as in the case of a ‘hit and run’ accident), or where the motor vehicle is uninsured. In these circumstances a claim may be made on the ‘nominal defendant’.

The nominal defendant is a body established under the Act and funded through registration contributions. An injured person relying on making a claim against the nominal defendant must make proper searches and enquiries to establish that the vehicle / driver could not be identified.

The National Injury Insurance Scheme

The National Injury Insurance Scheme Queensland (NIISQ) introduced in 2016 provides necessary and reasonable care and support to people who have sustained catastrophic injuries in a motor vehicle accident, irrespective of fault. The NIIS no-fault scheme has specific eligibility requirements.

Conclusion

A person may be entitled to compensation for injuries sustained through various incidents involving a motor vehicle. Time limits apply for claiming compensation and sometimes liability for an accident is unclear, so it is important to seek professional assistance to clarify your legal position and entitlement to compensation.

This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

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 process of obtaining probate

Probate is a grant made by a Court that ‘proves’ the Will of a deceased person and vests title to estate assets in the executor/s, allowing the executor to deal with the deceased’s estate.

As the legal personal representative of the deceased, the executor must determine the assets and liabilities, liaise with debtors, creditors and beneficiaries, sell, transfer and distribute assets and finalise the estate in accordance with the Will.

The executor is often guided by a lawyer who provides professional advice to minimise liability and to deal with any complications or claims made on the estate.

If the deceased died without a valid Will or the Will appointed an executor who is unable to fulfil that position, an interested person (usually a spouse, partner or child) may apply for letters of administration.

This article explains the process of obtaining a grant of probate where there is a valid Will, and what is involved in administering the estate. The information is general only and we recommend obtaining professional advice relevant to your particular circumstances.

Is a grant of probate necessary?

There is no statutory requirement to obtain probate and a grant may not be necessary for small estates. Property held jointly may be transferred to the name of the surviving owner/s by lodging the appropriate documents with the relevant authority.

Banks, financial institutions and share registries may release small amounts without probate on production of the death certificate and proof of those entitled to the funds, and an indemnity releasing them from future claims. The relevant enquiries should be made with each entity.

Unless the estate is small, simple and there is no risk of a claim being made against it, an executor will generally seek an application for a grant of probate. A lawyer can advise whether a grant of probate is necessary or recommended.

Process

A notice of intention to apply for a grant must be published at least fourteen days before the application is made to the Supreme Court. The notice is required to warn interested parties (creditors, family provision claimants) of the application and provides an opportunity for the relevant claim or objection to be lodged.

The following documents are filed with the Court:

  • Application for Probate;
  • Original Will and death certificate;
  • Affidavit in support of Application;
  • Affidavit of Publication and Service.

The affidavit sets out the relationship between the deceased and the executor, identifies the Will and death certificate and, if relevant, vouches for the deceased’s signature on the Will. The affidavit may include specific information to explain irregularities, such as different spellings of names or the death of a beneficiary.

Sometimes additional documents will need to be prepared to explain unusual circumstances and an estate lawyer can advise in this respect.

Once probate is granted, the executor may commence administration of the estate.

Dealing with assets held outside of Queensland may require the grant to be ‘resealed’ in the relevant jurisdiction. This is a procedural matter in which a copy of the original grant, together with a summons and supporting documentation is filed with the relevant Court in the jurisdiction where those assets are held.

Protecting executors

Executors may be liable for losses sustained by beneficiaries through negligence or delay in administering an estate but must also ensure that all claims are considered before distributing estate assets. To protect an executor from liability for potential claims by creditors, a notice is published providing a specified timeframe for a party to notify the estate of any claim prior to its distribution.

The possibility that a family provision claim may be made on the estate must also be considered. In such cases it may be prudent to wait for six months after the date of death before distributing assets.

An estate lawyer will explain the most appropriate means of protecting you as executor, from liability.

Administering the estate

The Will should be examined to ensure the distribution is in accordance with its provisions. Understanding the correct interpretation of a Will’s terms can be confusing and an estate lawyer will assist with explaining the proper construction of the Will.

The executor and beneficiaries should receive appropriate legal or financial advice when transferring / receiving assets to ensure that stamp duty, capital gains, land tax and other taxes are considered.

Executors should also be mindful of their duty to protect and preserve estate assets and to ensure that appropriate insurance, where relevant, is in place.

Estates that include business interests will require additional attention – the business may need to be wound up, or the interests sold or transferred to a beneficiary.

Prior to distributing assets, the executor will need to be certain that:

  • the debts of the estate have been ascertained and paid in accordance with the statutory order for payment of debts;
  • funds are retained in the estate for contingent expenses such as taxes and other fees;
  • all beneficiaries have been identified and provision (if relevant) made for holding a minor beneficiary’s share in trust;
  • the estate is not distributed until all creditors are identified and the requisite timeframe has expired for an eligible person to make a family provision claim;
  • a proposed distribution statement has been prepared and approved, particularly where there are multiple beneficiaries;
  • beneficiaries who are receiving insurable assets have arranged insurance cover in their own names before cancelling existing policies.

Conclusion

Applying for probate and administering an estate is an important function, and for many executors and beneficiaries, the process can seem tedious and daunting.

However, these processes are in place to ensure that executors and beneficiaries are protected and that the testamentary wishes of a deceased person are properly carried out.

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.

Attending Compulsory Family Dispute Resolution – what to expect

Separating couples should make reasonable attempts to agree on the future living arrangements, care and responsibility for their children. The Family Law Act 1975 (Cth) provides that, unless there are extenuating circumstances, dispute resolution is compulsory if agreement cannot be reached, prior to bringing an application for parenting orders to the family law courts.

Unless exempt, parties wishing to proceed to the Family Court for parenting orders must first provide a certificate stating that they have attempted dispute resolution. This is required even if there are existing orders with respect to a child for which amended or additional orders are sought.

What is Family Dispute Resolution?

Family Dispute Resolution (FDR) is a mediation service conducted by accredited Family Dispute Resolution Practitioners. Practitioners are registered on the Family Dispute Resolution Register and services are provided by individuals, Family Relationships Centres and other community organisations. Your lawyer can assist in finding a practitioner near you.

The objective of attending dispute resolution is to try to resolve children’s matters without the stress, burden, and financial costs of attending Court, with the best interests of the children being paramount.

If an agreement is reached, a parenting plan can be developed, or consent orders filed with the Court.

Do I need to attend FDR?

There are circumstances in which FDR is either not appropriate for the parties or not required. These include where:

  • the parties are applying for consent orders;
  • a party is responding to an application (already filed in the Court);
  • the matter is urgent;
  • the matter involves family violence or child abuse issues;
  • due to a party’s incapacity or location, he or she is unable to effectively participate;
  • the application is for a contravention of an existing order made within the past 12 months and a person has shown a serious disregard to his or her obligations under the order.

Parties claiming an exemption from attending mediation must provide an affidavit setting out the relevant circumstances with their application to the Court.

Going to Family Dispute Resolution

It is important that those who cannot resolve matters concerning the children attend FDR and understand the process involved. Family members or support persons are permitted to attend. If you would like your lawyer involved, you should discuss this with the practitioner conducting the mediation beforehand.

Children do not usually attend however in some cases a family counsellor or child psychologist will communicate with a child and if required, prepare a report before the mediation.

The role of the FDR practitioner is to assist the parties to cooperate in a positive manner and to work through the real issues.

The parties attending should make genuine efforts to resolve the issues in dispute and explore options for workable parenting arrangements that will be in the best interests of the child or children. The FDR practitioner should ensure that each party understands the process and the terms of any agreement reached.

Unless the FDR practitioner has a legal obligation to disclose information, all communications exchanged during FDR are confidential and cannot be used as evidence if the matter ultimately proceeds to Court. Information that must be disclosed includes matters concerning child abuse or a risk of child abuse, or that would prevent serious harm to a person or the commission of a crime.

The costs of attending FDR may depend on your financial circumstances but it is likely to be much less costly than attending Court.

What happens with any agreement reached?

Arrangements agreed for the ongoing and future care of the children may be documented in a parenting plan. Parenting plans are not legally enforceable however may be considered if a party subsequently applies to the Court for a parenting order to vary the parenting plan.

Alternatively, agreements can be documented in consent orders which are legally binding and can include various aspects of the parenting and care arrangements for the children. Consent orders can be prepared by your lawyer and filed in Court. You or your ex-partner will not need to attend Court however the orders will have the same force as an order made after a Court hearing.

What if an agreement cannot be reached?

If both parties attend FDR and the outcome is unsuccessful, the practitioner will issue a certificate noting each parties’ attendance and verifying that each made a genuine attempt to resolve the dispute.

Alternatively, the certificate may indicate that one party failed to attend, one or both parties failed to make a genuine attempt to resolve the dispute (either initially or part way through the mediation), or that FDR was not appropriate in the circumstances.

Non-attendance at FDR (unless an exception applies) may result in a delayed Court hearing or adverse costs orders.

Going to Court

The Family Court has discretion when determining children’s matters. If agreement cannot be reached regarding parenting issues it may be necessary to apply to Court for the appropriate orders. The overriding principle considered by the Court is that the best interests of the child are paramount. Essentially, this means that children:

  • should have the benefit of a meaningful relationship with both parents;
  • be protected from physical and psychological harm; and
  • receive parenting that allows them to reach their full potential.

Conclusion

In parenting cases, attendance at FDR is generally compulsory before filing proceedings in Court.

Attending FDR can result in an agreement for the ongoing care and responsibility for your children which can be documented in legally binding orders. If the matter is not fully resolved, attending FDR may at least narrow the issues in dispute or encourage the parties to communicate more positively about their children.

You may not need to attend FDR in certain circumstances, for example, if there is a risk of family violence or abuse. Your family lawyer will assess your situation and assist you in reaching a workable plan for your children.

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.

You said what? All about defamation claims

‘He said’, ‘she said’, ‘they said’.

Defamation cases can attract a lot of attention in the media, particularly when they involve well-known celebrities like Rebel Wilson or Geoffrey Rush.

Defamation cases, however, are not exclusive to those with a high profile. The use of social media has escalated to the point that it is a daily ritual for many, with the potential for defamatory material to transcend across vast audiences within seconds. It has become increasingly important to appreciate the type of conduct that may leave a person or organisation liable for defamation, and to know your rights if you have been the victim of a defamatory publication.

This article provides general information regarding defamation laws in Australia which, apart from some differences, are relatively uniform between the states and territories. Your lawyer can explain the law as it applies to your jurisdiction and assist in commencing or defending a defamation matter on your behalf.

Defamation at a glance

Defamation is the publication of an imputation (insinuation) about a person that damages, or is likely to damage, that person’s reputation. You may have previously heard defamation referred to as ‘libel’ or ‘slander’.

Essentially, Australia’s defamation laws aim to:

  • promote uniform laws across the country – apart from some exceptions, defamation laws are generally consistent;
  • encourage the efficient, non-litigious resolution of defamation disputes; and
  • provide fair remedies for those covered by the legislation who suffer loss of reputation by the publication of defamatory material, without unreasonably restricting freedom of expression.

Claiming defamation

Defamation laws provide protection and compensation for individuals, not-for-profit organisations and companies employing less than ten people, who suffer loss of reputation caused by a defamatory publication. Although the legislation imposes limits on who can claim compensation, any natural person or legal entity including government bodies and companies may be liable for defamation.

A claim for defamation may arise from the publication of defamatory matter about a person. Defamatory material may be in the form of printed material such as an article, report, advertisement, letter or picture or in a spoken form such as an announcement or discussion, or a gesture. The subject matter may be conveyed in printed form or through media such as television, radio, internet or other forms of electronic communications.

How is defamation proven?

Three essential elements must be satisfied to prove defamation, namely, publication, identification, and the existence of a defamatory matter. Additionally, there must be no defence available to the publisher of the alleged defamatory material.

The information must have been published or communicated to a third party and identify the aggrieved person. It is not necessary that the material names the person claiming to have been defamed, provided there is sufficient information that would reasonably identify that person to a third party. A simple example would be material that refers to somebody’s daughter, son, or mother.

The information must contain a defamatory matter. In determining whether material is defamatory, it must be shown that a reasonable person would likely think less of, shun, avoid or ridicule the aggrieved person because of the publication. The intention of the person or entity publishing the material is irrelevant, and the publication need not actually affect the person’s reputation, provided it is reasonably capable of doing so.

Defences to defamation

Various defences may be available in response to a claim for defamation. These typically include:

  • honest opinion;
  • truth or justification;
  • qualified privilege (where material is published during the course of legal, tribunal or parliamentary proceedings);
  • innocent dissemination (where the matter was contained in or extracted from a public document).

Generally, the most common defence is justification – that the imputations are substantially true; or that in addition to the defamatory material, the matter contained one or more imputations that were substantially true and reputational loss suffered by the aggrieved person is no worse as a result.

Managing defamation disputes

Following is the general process adopted when pursuing a defamation matter, noting that although defamation laws are mostly uniform across Australia, it is important to obtain advice specific to your jurisdiction and your particular circumstances.

  • An aggrieved person issues a ‘concerns notice’ to the person or entity who has allegedly published the defamatory material. The notice must detail the imputations of concern – if details are not properly particularised the publisher can request additional information which should be provided within 14 days.
  • After receiving a concerns notice, the publisher may make a written offer to make amends within 28 days. The offer must:

–        identify the notice as an offer under the relevant legislation;

–        include any limitations regarding the offer and the defamatory imputations;

–        include an offer to publish a reasonable correction of the matter in question and, where material has been provided to a third party, an offer to take reasonable steps to inform that party that the matter is or may be defamatory;

–        include an offer to pay the aggrieved person’s reasonable expenses incurred before the offer was made, and the person’s costs in considering the offer.

The offer may include additional remedial action to redress the harm sustained by the aggrieved person including the payment of compensation.

  • If the offer is accepted terms of settlement are prepared and the aggrieved person may not proceed further against the publisher with respect to that matter. A person’s refusal to accept a valid offer may be used in subsequent legal proceedings.

Going to Court

Court proceedings must generally be commenced within 12 months from the date a defamatory statement is made.

If successful, a judge will determine the appropriate damages payable which are capped to a statutory limit. Additional damages may only be awarded if the Court is satisfied that the circumstances of the matter warrant such an award.

Conclusion

Defamation matters can be complex and are by nature, generally emotive. Costs can escalate and it is important to obtain considered advice by a lawyer with experience in these types of matters.

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 Risks of Going Guarantor

Has a family member asked you to provide a guarantee for their home loan or personal loan? If so, you need to be clear about your obligations under a contract of guarantee.

What is a guarantee?

If a lender is concerned about a borrower’s capacity to repay a loan or has classified the borrower as a high credit risk, the lender may ask a third party to provide a guarantee that he or she will pay back the full amount of the outstanding loan if the borrower defaults.

If you sign a guarantee for a friend or family you become a “guarantor” of the loan. In other words, you will become responsible for the borrower’s debt if they do not repay the loan.

There are guarantees for fixed amount or “all monies”. All monies guarantees are for all amounts owing under the loan, now and in the future (including such things as the principal, interest, fees, costs and expenses).

Risks of providing a guarantee

You are obliged to inform a credit provider of any loans on which you have agreed to act as guarantor. A credit provider will take into account your obligations under the guarantee when considering your capacity to repay a new loan. Even if the borrower is meeting his or her repayment obligations, your guarantee could affect your ability to secure new financing.

If the borrower does not pay back the loan, you could end up with a bad credit record, which will make it harder for you to borrow money in the future. Further, if you provide your house as security, you could risk losing your home if you are unable to meet the obligations of the loan guarantee. A lender can also take steps to make you bankrupt if you are unable to pay back the loan, in order to access your assets to satisfy their debt.

Questions to ask before agreeing to provide a guarantee

As can be seen, there are many financial risks associated with acting as a guarantee with very little reward. Before providing a guarantee, we recommend that you consider the following questions:

  • how does the borrower intend to repay the loan?
  • what is the amount of the guarantee? Is it for a fixed amount or “all monies”?
  • can you repay the loan amount if the borrower does not meet his or her repayments?
  • do you have to put up assets as security?

Independent legal advice

A lender will generally ask for evidence that a guarantor has obtained independent legal advice on the potential consequences of entering into the guarantee before signing the guarantee contract. That is because guarantees can be unenforceable if one party is found to have been induced into entering the transaction by another party’s undue influence. There are certain circumstances where undue influence is presumed (for example, husband and wife relationships and where the transaction seems to clearly benefit one party and not the other).

Insisting that a guarantor obtain independent legal advice provides protection to a lender that a guarantee will be enforceable.

Conclusion

A guarantee is a contract with significant legal and financial consequences. You should think carefully before agreeing to provide a guarantee and obtain independent legal advice before signing any documents.

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.

Top tips for reducing legal fees in your family law matter

Family law proceedings can become very stressful. The last thing you should be worrying about is exorbitant legal fees. However, your family law fees do not necessarily have to become a burden. We have provided our top 10 tips on ways in which you can keep your legal fees reasonable!

Although family law proceedings can at times be costly, ensuring you get proper legal advice is very beneficial and can help reduce stress by providing you with an understanding of your rights and what’s involved in family law proceedings.

In our experience, having a family lawyer represent you in family proceedings can help you receive a more favourable property settlement outcome compared to parties who represent themselves.

Here are our 10 top tips to help you save money on your family law fees

Get legal advice early

Obtaining advice early in proceedings is important so that you and your lawyer can come up with a plan on what your matter will involve. At the end of each meeting with your lawyer, ask about the next step in your matter so that you remain up to date with proceedings.

 Make a list of questions you want answered before every appointment

 Having a list of questions and concerns regarding your matter will result in a shorter appointment time as you won’t need to take time to recall the questions you had planned to ask. It will also help eliminate the need for you to call your lawyer after your appointment to ask the questions you had forgotten. Remember, every time you call to speak to your lawyer, you may get charged! We also recommend you send your list of questions to your lawyer before your meeting so that your lawyer can be prepared.

Take notes of discussions with your lawyer

 Taking notes during your meetings and telephone calls with your lawyer will help you recall what was discussed between you, eliminating the need to ask your lawyer the same question twice. This reduces the time spent on speaking with your lawyer and in turn will help reduce your legal fees.

Prepare your financial documents

 You will usually be required to provide 12 months’ worth of bank statements, including savings accounts, all mortgage statements, your last three tax returns, and recent payslips, including current superannuation statements. We also recommend sending a request for you and your ex partner’s superannuation fund details as this will provide information to both lawyers about assets and liabilities of the relationship. This will also give both parties an approximate indication of the total value of financial assets. Taking this extra step can save your lawyer time and help reduce your fees even further.

Limit your questions to only legal issues

We empathise that family law proceedings can become stressful and emotional. Your family lawyer will support you to the best of their ability, however, they are only qualified to give legal, not emotional advice. Keep your discussion to legal issues only, this will help keep your meeting shorter and reduce your fees. If you need emotional support, we recommend you arrange an appointment with a counsellor and ask them if you are eligible for free counselling or rebate through Medicare for counselling fees.

Try to remain reasonable when undertaking settlement negotiations

 When it comes to family law proceedings, both parties will need to make concessions. It is more productive and cost effective to resolve matters sooner by conceding some issues, which may seem to appear important at the time. Avoid being unreasonable or threatening litigation as a way of punishing your ex-partner. If you continue to be unreasonable or refuse to negotiate with your ex-partner, you will also be punishing your wallet!

 Avoid incessantly calling your lawyer

 We understand waiting to hear from the other party may be nerve racking, however your lawyer will contact you as soon as possible with any replies from the other party. Constantly calling your lawyer to find out if you have a reply from the other party will only increase your legal fees. If you only have a basic message you want to pass onto your lawyer, it is best to leave the message with their legal assistant.

 Provide your lawyer with any information they request

 Your lawyer will most likely request written material to prepare court documents (such as information for an affidavit). Providing your lawyer with written material will result in greater efficiency in preparing any legal documentation and as a result, reduced legal fees.

Organise all documents before sending to your lawyer

 Before providing your lawyer with any requested documents or information, ensure you organise these documents in chronological order and make a list reflecting all the documentation provided. Providing an electronic version of the list and documents where possible, will also save the law clerk’s time and help keep your legal fees down.

Finally, respond to your lawyer’s requests in a timely manner!

 We cannot stress how important this is! Lawyers have deadlines they must meet, including responding to the other side’s requests. If you don’t want to pay extra for your lawyer to keep following up with you or for unnecessary appeals and motions, respond to their requests as soon as possible. You also do not want to give the other side an excuse to claim for legal costs they have incurred because of your delays, so always ensure you respond to your lawyer’s requests promptly.

Conclusion

As you can see, there are numerous ways you can help keep your legal fees as low as possible. Our family lawyers will be happy to discuss and advise you on what you can do to help achieve this throughout managing your matter.

Although legal fees can at times be costly, we cannot stress the value of obtaining legal representation from an experienced family lawyer in the long run, as it can help you receive a more favourable property settlement.

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.