Archive for the ‘Newsletters’ Category

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.

The difference – Employee vs. Independent Contractor

There are a number of factors which may contribute to determining the difference between an employee and an independent contractor. However, no single indicator can determine if a person is a contractor or an employee. Sometimes contracts are drafted with the parties genuinely thinking they are contractors or employees when in fact they are not.

However, where one or more parties intentionally try to deceive, severe penalties apply to those who misrepresent the employment relationship and this is captured in the sham contracting provisions.

Generally someone who is hired for a specific service or purpose and paid for this specific service or purpose will be deemed to be a contractor rather than an employee. An agreement will exist between the principal and the contractor. Importantly, this agreement will not be subject to the same legislation and implied terms as those within an employment contract.

When there is an agreement for work to be completed in exchange for payment, an employment contract will usually exist between an employer and employee.

There are some common indicators that may contribute to determining whether a person is an employee or independent contractor and should be used as a quick check list:

An employee:

  • Is paid for the time that they work
  • Receives paid leave
  • Is not responsible for providing materials/equipment required to do their job
  • Must perform specific duties required of their position
  • Agrees to provide their personal services
  • Works hours set by an agreement or the appropriate award
  • Is recognised as part of their employers business
  • Takes no commercial risks, and cannot make a profit or loss from the work that they perform

A contractor, on the other hand:

  • Is paid for their individual job and the result achieved
  • Generally provides most materials/equipment required to do their job
  • Can delegate work to other entities as it sees fit
  • Has control in the way the work is done
  • Provides services to the general public and to other businesses
  • Can accept and refuse work
  • Takes commercial risks, and is in a position to make a profit or loss

Why is the distinction important?

This distinction between employee and contractor is crucial as it determines just what rights and obligations will be owing to that employee or contractor. An employee’s contract must comply with certain standards including the maximum hours of work per week, leave entitlements, public holidays and notice of termination. In addition they will also be regulated through appropriate awards, any enterprise agreements that may relate to their industry and implied contractual obligations.

Consider the difference when drafting Employment Contracts

An employer must initially determine which relationship (employee or contractor) is most appropriate. Consideration can be given by the employer assessing the type of work to be done, establishing the level of control one will have over the work and then correctly labelling the relationship for what it is.

Penalties can also be imposed as set out below not only from Fair Work inspectors but also for unpaid superannuation.

Sham contracting arrangements

A sham contracting arrangement occurs where an employer attempts to disguise an employment relationship as an independent contracting arrangement. This is usually done for the purposes of avoiding responsibility for employee entitlements such as superannuation, annual leave and workers compensation for example.

Under the sham contracting provisions of the Fair Work Act 2009, an employer cannot:

  • Misrepresent an employment relationship or a proposed employment arrangement as an independent contracting arrangement;
  • Dismiss or threaten to dismiss an employee for the purpose of engaging them as an independent contractor;
  • Make a knowingly false statement to persuade or influence an employee to become an independent contractor.

Under the Fair Work Act 2009 serious penalties apply to employers who contravene these provisions. Fair Work Inspectors can seek the imposition of penalties for contraventions of sham contracting arrangements and reform opt-in provisions. The courts may impose monetary penalties.

What should businesses do?

If you are an employer and don’t get it right there are practical and expensive consequences. Not only are there penalties under the Fair Work Act for misrepresenting the employment relationship as independent contracting, but employers could also be ordered to make back payment of wages set by awards or enterprise bargaining agreements.

So, if there is no simple answer about the difference between an employee and contractor, what should companies do?

First, don’t think that the terminology in a contract will determine the issue, because the courts won’t. A contract which clearly sets out respective rights and duties between the parties will, however, be an important part of the factual matrix which a court will use to make its decision.

Secondly, you might be running on the assumption that your service providers are contractors. If those individuals do not run their own business, then they are not contractors. Considering the costs of getting this wrong, or proving otherwise, it is worth reviewing these relationships and being sure that you are not inadvertently treating an employee as a contractor.

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

Understanding easements in your property contract

Identifying and understanding easements in a property transaction is an important part of the conveyancing process.

Vendors are required to disclose all easements affecting the land they propose to sell in a property contract, and buyers should ensure they are aware of the impact an easement will have on the land they are about the purchase.

Your property lawyer will identify any easements affecting your proposed purchase and explain their effect on the use of the land.

What is an easement?

An easement is an interest attached to a parcel of land that gives another landowner or a statutory authority a right to use a part of that land for a specified purpose.

The easement is registered on the title of the property and affects a defined area of the land. The easement is generally shown on the plan of the land with a brief description noted or more fully described in a further document (instrument).

Examples of easements include:

  • a right of carriageway (right of way) allowing the owner of landlocked property to access their land by travelling over a portion of neighbouring land – example; a shared driveway used for a battle-axe block;
  • a cross-easement which provides neighbouring properties reciprocal rights to use each other’s property in the same manner – example; for mutual support of a structure such as a party wall between terrace houses;
  • an easement for services such as electricity, water or sewerage – the easement may be over or under the property, and may run parallel at the rear or side of a property – example; sewer pipes laid underneath the land by the local water authority or an overhead electricity transmission line.

Easements are recorded on the title deed to a property, noted on the registered plan and incidental instruments, and / or shown on sewerage diagrams.

Legal terminology

When discussing easements, you may hear the terms ‘private and public – dominant and servient – positive and negative’. These terms generally refer to how the easement is created and who benefits from the easement.

A private easement is an easement created between landowners. When such an easement is created one parcel of land will benefit from the easement (the dominant tenement) and the other parcel of land will be burdened by the easement (the servient tenement).

A positive easement provides a landowner with a benefit, such as the right of way described above that allows the landowner to cross over another’s property to access his or her own. That same easement is considered a negative easement by the neighbouring landowner, as allowing the access impacts upon that landowner’s unrestricted use of the land.

A public easement is one created by a statutory authority over one or more parcels of land such as the easement for water services described above. This is also an example of a negative easement as the easement will restrict building over that part of the land (see below).

The effect of an easement

An easement provides certain rights and restrictions and owners of land with registered easements should understand their legal implications.

A party who is lawfully authorised to benefit from an easement, such as the neighbour with a right to use your driveway to access his or her property, and who uses the easement in the prescribed manner, will not be liable for trespass. As the owner of the servient tenement you must not interfere with or restrict these rights.

If an authority has an easement registered over your land, such as an easement for electricity or sewerage services, then the authority will have the right to access your property and to carry out repairs and maintenance on the easement.

An easement will also impact on your building and development plans. Owners are generally prohibited from building over or too close to an easement or must obtain approval from the authority who owns the easement to do so. If a structure is built over an easement without permission or where permission is denied, then the owner will be legally required to remove the structure.

Extinguishing or terminating an easement

In some circumstances, an easement may become redundant or may no longer be required. In such cases, it may be practical and advantageous for an owner to have a registered easement removed from the property’s title. Removal of a negative easement may increase the value and / or appeal of your property.

There are several ways that an easement may be extinguished or terminated.

  • Express release – the parties affected by the easement may agree to terminate the easement and register their agreement with the relevant land titling authority.
  • The owner of the servient tenement may apply to have the easement extinguished on the grounds of ‘abandonment’. This is established by the non-use of the easement and an intention on the part of the owner of the dominant tenement to abandon the easement.
  • In some circumstances, where the dominant and servient tenements are consolidated into a single parcel of land.
  • In circumstances where there is an alteration of use of the dominant land to the effect that use of the easement by the servient land comes to an end or is rendered obsolete.

Conclusion

Understanding easements and their effect on property is a fundamental part of the conveyancing process and buyers, in particular, should ensure they are aware of the impact an easement will have on the land they are about the purchase.

This information is for general purposes only. You should obtain professional advice before undertaking 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.

Common misconceptions about estate planning

An estate plan involves more than signing a Will and leaving it in a safe place. An effective estate plan requires consideration of several matters and ongoing review to ensure it reflects your testamentary wishes and covers unexpected events.

In this article we look at some misconceptions about Wills and estate planning and dispel some common myths. The information is general only and you should obtain professional advice specific to your circumstances before you undertake any course of action.

I have a Will – isn’t that an ‘estate plan’?

A Will is a great start to planning your estate, however a Will alone does not appoint a trusted person to look after your financial and property affairs when you are away or if you are incapacitated. Likewise, a Will cannot appoint a guardian to make health and lifestyle choices on your behalf if you are incapacitated, taking into consideration your morals and values.

Tip: Various legal documents form part of your overall estate plan. Think about what you would do if the unforeseen happened and you could no longer manage your affairs. Talk to you lawyer about the benefits of appointing an attorney or guardian to assist you if you are incapacitated.

Only the rich need an estate plan

This is certainly not the case. No matter what your financial status, an estate plan enables you to appoint a trusted person to administer your assets when you die, ensure your hard-earned property is left to beneficiaries chosen by you and not others, maximise the gifts and benefits you leave to your loved ones through appropriate taxation planning, and prepare for unexpected crisis (illness and incapacity) by appointing somebody you trust to deal with your affairs when you cannot.

Tip: Think about your current assets and the assets you aim to accumulate in the future – they soon add up. Think about who you would like to benefit from your estate and how you can maximise the value of your assets for your beneficiaries.

I can leave joint property to whomever I wish

The right of survivorship means that upon the death of an owner of a jointly held asset that asset automatically vests in the surviving owner/s, despite any contrary intention expressed in a Will.

Jointly held assets such as real estate often comprise the bulk of the estate’s value. For spouses and de facto partners, this may be ideal as many would simply wish the surviving partner to benefit. However, joint ownership may not be appropriate such as property held with certain other family members, non-family members or other entities, or property that remains jointly held after divorce or separation.

Tip: Review your assets (real estate, bank accounts, investments) and check how they are held. Your lawyer can assist in this process and if necessary, sever joint tenancies so that your share of property can be separately held and left to whomever you wish.

Superannuation is automatically dealt with in my Will

Many people assume their superannuation will be divided up in accordance with the wishes in their Will, but that is not necessarily the case.

Death benefits, comprising the superannuation account balance and any life insurance payments, are paid to a ‘dependant’ (defined by legislation), as determined by the fund trustee or in accordance with a Binding Death Benefit Nomination (BDBN).

Tip: Review your superannuation and life policies to determine whether you have in place a valid and current BDBN. Talk to your lawyer about the formalities required to execute a BDBN and strategies to minimise adverse tax implications on the payment of your death benefits to your beneficiaries.

If I die without a Will my assets go to the Government

If you die intestate your assets are distributed according to pre-determined formulae set by legislation in each state and territory. The rules attempt to reflect society’s ‘expectations’ as to who should benefit from a person’s estate. They provide a specific order of distribution to the deceased person’s next of kin.

The problem with these statutory rules is that they do not necessarily consider the wishes of a deceased person nor his or her unique circumstances.

Tip: Don’t rely on a statutory formula to determine those entitled to benefit from your estate. Although only in the most extreme cases will the Crown have a right to an intestate’s estate, a Will is essential to nominate with clarity your executor and chosen beneficiaries.

I need to update my Will when I have a child or more children, move or acquire new assets

You should always review your Will when your personal and financial circumstances change significantly. Your Will may already provide for children (or future children) and you may not need to update it for every change, but it is good practice to review it when you experience major changes in your life.

You should also be careful about naming specific assets in your Will, for example details of a particular vintage car that you may own. A gift in your Will of a specific asset of considerable value which is disposed of during your lifetime may fail and cause an unintentionally unequal distribution amongst beneficiaries.

Wills are generally drafted to provide flexibility with respect to the nature and value of assets held, and to provide for future generations (unborn children) and substitute executors and beneficiaries.

Tip: Flagging to review your Will each year, for example when your annual tax return is prepared, makes good sense. In many cases, no changes will be needed but it is good practice to make a habit of a regular review. If you separate, divorce, or your financial or personal circumstances change significantly contact your lawyer immediately to see how these changes impact your existing Will and, where necessary, prepare a new Will.

Conclusion

Effective estate planning takes time and careful consideration. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

What can you do if your visa application is refused?

Having a visa application refused can be extremely disappointing, particularly after spending considerable time completing forms, gathering documents and having paid the relevant fee, which is generally only refundable in limited circumstances.

Visa applications in Australia are processed and considered by the Department of Home Affairs. A decision not to grant a visa may be made for a number of reasons including:

  • applying for the wrong visa type, which is quite common and may occur more frequently when applications are lodged without legal assistance;
  • failing to meet the conditions required of a previous or existing visa;
  • failing to meet eligibility criteria such as health and character requirements;
  • incomplete information or inconsistencies in the application and / or supporting documents;
  • insufficient funding.

If your visa application has been refused, you may be able to have the decision reviewed. The visa notification letter should state the reasons for refusal and whether the decision is reviewable. Not all decisions can be reviewed, and it is important to act quickly to determine your rights and lodge the appropriate application.

The review process for visa refusals

The Administrative Appeals Tribunal, Migration and Refugee Division deals with the review of visa refusals. The Tribunal is required to make decisions which are fair, just and economical and takes an informal approach to the review process.

When reviewing a case, the Tribunal has the power to reconsider the case in its entirety and make a new decision based on the relevant facts and circumstances.

The types of decisions reviewable by the Tribunal, who is entitled to apply for a review (which may be the visa applicant, a sponsor or close relative), the fees and time limits are set out in the Migration Act 1958 (Cth) and Regulations. The relevant timeframe within which to lodge a review application will be stated in the Department’s notification letter. The Tribunal is not authorised to make exceptions, so it is imperative to lodge the application on time.

The application for review may be completed and lodged online, by post, fax, in person or by email, and the relevant fee must be paid at the time of lodgement.

Preparing for your case

Following is an overview, and some information regarding the Tribunal’s review process.

  • After an application for review is lodged, confirmation is given to the applicant and the Department of Home Affairs. The Minister for Immigration or the Department are not represented during the review process, however they must provide the Tribunal with all relevant documents concerning the case.
  • The case is allocated to a Tribunal member who reviews the documents.
  • A hearing date is usually set, and the applicant invited to attend and / or provide further details or respond to information.
  • An applicant may nominate a representative to run the case, prepare submissions and evidence, and attend any meeting or hearing arranged by the Tribunal. The representative may be invited to comment on matters raised during the review process.
  • Preparing good written submissions and evidence to support a case, and planning for the hearing is critical for an applicant to have every chance of achieving the best possible outcome of the review.

Submissions should provide background information concerning the applicant and respond specifically to the matters raised by the Department. The submissions must directly address the reasons for refusing to grant the visa.

  • The Tribunal is required to inform an applicant of certain information that could result in an adverse outcome of the review and provide an opportunity for the applicant to respond within a specified time. It is important to respond timely and appropriately so the opportunity to put forward a case is not lost.

The decision

The Tribunal may:

  • affirm the decision;
  • vary the decision;
  • substitute the decision for a new one;
  • send the case back to the Department to make a new decision.

The timeframe for the Tribunal to determine a case will depend on the circumstances and complexity of the matter, noting that some cases will be given priority in accordance with legislation and policy directions.

In most cases, a decision will not be made at the hearing and the Tribunal member will send the applicant and Department a written determination afterwards.

Occasionally, a decision may be made at the end of the hearing and the Tribunal member will announce this verbally and may provide written reasons for the decision within the following 14 days. Alternatively, the member may announce the decision and reasons at the end of the hearing. In such cases, an applicant may request in writing within 14 days, to be provided with a written version of the determination.

Applicants who are not happy with the Tribunal’s decision may have a further opportunity to appeal to the Federal Circuit Court, but only on a question of law. This is a complex area and visa applicants should obtain legal advice regarding their eligibility to appeal Tribunal decisions.

Conclusion

Many factors may cause a visa application to be refused. No matter what the reason, it is important to act quickly to protect your rights and to make sure that all avenues are explored to achieve the best possible outcome under the circumstances. Obtaining timely advice from an experienced immigration specialist is vital.

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.

Protecting your workers’ compensation rights

If you have been injured at work or have developed a work-related illness, it is important to act quickly and take appropriate steps to protect your legal rights.

No matter how minor you think your injury is, a basic understanding of the laws that protect workers, and the relevant timeframes for pursuing compensation is essential.

Although some injuries may seem insignificant when they happen, they can deteriorate over the course of days, weeks or months, affecting your capacity to work and provide for your family. Workers should not be deterred by offhand comments, pressure or threats, from pursuing their rights to access appropriate treatment and to be fairly compensated for a workplace injury.

Many people do not realise that the responsibility for seeking compensation rests with the injured worker and that failure to lodge a claim, no matter how seemingly incidental, can have significant repercussions on the ability to pursue their rightful entitlements.

Understanding workers compensation

Workers compensation laws exist for very good reason – they set out the rights and responsibilities of workers and employers, and support those who are injured, aggravate an existing injury or become ill while performing their usual work duties.

The Workers’ Compensation and Rehabilitation Act 2003 (Qld) establishes a no-fault compensation scheme which provides statutory minimum ‘safety net’ benefits to injured workers or the families of those who die from a workplace incident.

Employers must provide a safe workplace and work systems, and ensure that employees, whether full-time, part-time or casual are covered by workers compensation insurance. In some cases, ‘deemed’ workers such as contractors and self-employed workers, will also be covered.

Employers must report certain workplace injuries and cooperate with relevant bodies and providers to facilitate optimum recovery for an injured worker. Attempts to avoid these obligations, discourage or prevent an employee from following the correct processes for making a legitimate claim may breach these laws.

The role of WorkCover

WorkCover Queensland is established under the Act and provides workers compensation insurance for all Queensland employers, unless an employer is a self-insurer.

WorkCover processes workers compensation claims, makes payments to injured workers in accordance with their entitlements, oversees injury management and coordinates return to work plans.

Understanding time limits and making a claim

A worker, not the employer, is responsible for lodging a workers’ compensation claim. The following timeframes apply and may only be waived in specific and exceptional circumstances.

  • Workers should report the incident and their injuries to the employer as soon as possible after the injury occurs and before making a claim.

A worker may complete an incident report or notification of injury, however he or she should be clear that this is not an application for workers compensation.

  • An application for workers compensation must be lodged by an injured worker with WorkCover. The application is generally only valid if lodged no later than six months after the entitlement to compensation arises.

 The Act states that an entitlement to compensation arises on the day a worker is assessed by a doctor, a dentist (if the injury is an oral injury) or a nurse if the injury is minor. Injured workers should seek medical assistance as soon as possible after they are injured to obtain a work capacity certificate.

  • If an application is lodged more than 20 business days after the entitlement to compensation arises, the insurer does not have to pay compensation from a date any earlier than 20 business days before lodgement of the claim.

This means that the insurer will not have to ‘back-date’ any compensation payments for more than 20 business days before the claim was lodged.

What does WorkCover pay?

 A workplace injury or illness may include physical or psychological injuries. Because the scheme is no-fault, provided the injury is work-related, compensation is generally payable even if the injury was not the employer’s fault.

Compensation may include any one or more of the following payments:

  • weekly payments during incapacity;
  • expenses for medical treatment by providers such as doctors, dentists, physiotherapists, occupational therapists and psychologists;
  • assessments for industrial deafness and diagnostic processes;
  • the provision of nursing, medical or surgical supplies and equipment;
  • travel expenses reasonably incurred in attending treatment, medical examinations and medical assessment tribunals;
  • lump sum benefits for certain injuries that result in permanent impairment;
  • return to work support when an injured worker cannot resume his or her pre-injury role but may be suitable for other employment;
  • death benefits for certain family members of a worker who dies from a work-related injury or illness, as well as funeral benefits.

Pursuing a common law claim for damages

A common law damages claim may be made by an injured worker if the employer (either directly or through another employee or agent) was negligent and deemed responsible for the injury. The claim must be commenced within three years of the date of injury.

Generally, a damages claim cannot be made until an injured worker has pursued his or her compensation rights through the no-fault statutory scheme. Accordingly, failure to lodge a claim with WorkCover within the prescribed timeframe can adversely affect a worker’s right to pursue a common law claim for damages.

A settlement or award for work injury damages usually includes a lump sum payment (accounting for future economic loss and pain and suffering), medical and hospital costs.

Other benefits including help for non-work-related accidents and illnesses

Workers who need to take extended leave due to an illness or injury may be able to claim income protection insurance, even if their condition is not work related. Income protection covers a portion (usually up to 75%) of a person’s usual income if they are unable to work due to certain illnesses or injuries. This type of insurance may be stand-alone, or form part of a superannuation policy, and many people are unaware that they even have such insurance.

Many superannuation policies provide lump sum benefits if a person is totally and permanently disabled. These payments are generally in addition to any relevant workers compensation payments.

Claiming under an income protection policy or superannuation fund can be complex and often involves jumping through ‘hoops’ to substantiate that the condition suffered falls within a category covered by the policy.

Navigating legal terms and conditions can be distressing, particularly when dealing with the physical and emotional effects of a serious illness or injury. A lawyer can help to analyse fine print, lodge a claim and supporting documents, and assist in resolving any disputes with superannuation funds and insurers.

Conclusion

Employers have a range of workplace health and safety responsibilities however the onus rests on injured workers to ensure their compensation rights are properly pursued and protected.

Obtaining legal advice early will help you to understand and manage the time limitations that apply and may make a significant difference to your entitlements.

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.

Appointing a Solicitor as Executor of your Will

An executor is a person who will carry out the instructions in your Will once you have passed away.

In general, you can appoint any person as executor of your Will, this includes solicitors. It is not uncommon for a solicitor to be appointed executor of a Will. The advantage of having a solicitor as executor is their experience handling Wills, as opposed to someone who has never undertaken the role of an executor.

It is quite likely that whomever you appoint as the executor will have to seek advice from a solicitor while acting as executor anyway.

Why should I appoint my solicitor as executor of my Will?

If you have a complicated estate and family situation, it may be worth considering appointing a solicitor as executor of your Will.

Solicitors bring professionalism and experience to the role of executor. It easier for a solicitor to remain impartial and manage disputes, should any disagreements arise as to the contents of the Will.

An experienced solicitor can also ensure your Will is executed in a timely manner, communicate the progress of execution of the Will to beneficiaries and ensure account keeping is properly maintained.

What is required from a solicitor who is to become executor of my Will?

If you decide to appoint a solicitor as executor of your Will, they must notify you in writing to confirm they will be acting as executor of your Will and should include the following in a confirmation letter;

  • Any entitlements they may be able to claim from carrying out instructions in your Will;
  • Costs and charges for legal fees or executor’s commission;
  • Any people who may not make a claim against the executor’s commission.

The solicitor must disclose their fee structure for your consideration.

Can a solicitor charge a fee for executing my Will?

Yes, they can! There are a few ways in which a solicitor can be paid for executing a Will, for example, a clause in the Will provides for a legacy to be paid to the executor/s or a rate of commission or right to charge for professional rates for non-professional work.

Solicitors acting as executors must ensure they comply with Legal Profession Uniform Rules when renumerating themselves for executing the Will.

The subject of executors’ remuneration has potential to become complex, hence we recommend you speak to one of our specialist lawyers to ensure you have everything covered.

Conclusion

An experienced solicitor is able to bring professionalism and impartiality to the role of executor. If a solicitor has accepted to take on the role of executor of your Will, they must notify you in writing to confirm they will be acting as executor. They can also explain their obligations to you as executor of your Will and the different ways in which they can be renumerated for carrying out your final wishes.

This area of law is extensive and can be overwhelming to understand. We recommend you speak with one of our specialist lawyers, who can ensure you have everything in order when it comes to appointing a solicitor as executor of your Will, as they will after all, be fulfilling your final wishes.

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.