Archive for the ‘Newsletters’ Category

I was just having fun – rights and responsibilities at the office Christmas party

Work Christmas parties provide a great opportunity to mix with fellow colleagues and bosses, reflect on the year’s activities and get to know each other on a more personal level.

With each social function however, employers and employees have certain rights and responsibilities. Understanding these and working together should ensure everybody’s welfare is protected and avoid some of the pitfalls that can arise from poorly managed events. Issues can range from the embarrassment of having ‘one too many’ to serious claims of sexual harassment, bullying and discrimination.

So, while preparing to let your hair down for the end of year celebrations, it’s a good idea to brush up on some essential work function responsibilities so that your next event is not too eventful. This information is general only and you should obtain professional advice relevant to your circumstances.

Laying down the law

Despite a work function being held off work premises and out of normal working hours, workplace laws still apply and an employer’s duty of care for its employees remains as if they were at work.

Accordingly, without resorting to becoming the ‘fun police’, it is appropriate for employers to remind their employees about acceptable behaviour, codes of conduct, workplace and social media policies, responsible alcohol consumption and the prohibition of illicit drugs. This reminder should be in writing, issued before the event, and may accompany the invitation.

Employer’s liability

Employers may be liable to compensate an employee if, through a negligent act or omission, they fail in their duty of care to prevent injury and the person suffers harm. This liability extends to work functions and events.

Employers may also be vicariously responsible for the behaviour of their employees both in the workplace and at work functions. Vicarious liability is a type of secondary liability whereby a superior (employer) is responsible for the actions of a subordinate (employee).

An employer can therefore be liable for harm suffered by a worker (such as discrimination, harassment including sexual harassment, and bullying) due to the inappropriate conduct of an employee. The effects of too much alcohol or simply forgetting that the work function is deemed a workplace can often fuel behaviour leading to these issues.

Employee behaviour and misconduct

Employees who behave inappropriately at a work function not only reflect poorly on themselves and their employer but may risk losing their job. Although there are laws to protect employees from unfair and harsh dismissal, certain misconduct and serious misconduct can be grounds for formal disciplinary action and even termination.

Social media

Employees should ensure they comply with their work social media policy – just because it’s a party does not mean that posting inappropriate images and/or comments will not breach policy. Whether or not a social media policy is in place, the best advice is, if in doubt, don’t post.

Top tips for a smooth event

The following checklists for employers and employees may help keep everybody safe and ensure that your next event is enjoyable and runs smoothly for all.

Employers

  • Consider your employees’ religious and cultural beliefs, family and caring responsibilities, and travel requirements when planning, to foster an inclusive event.
  • Remind employees before the function that workplace policies and codes of conduct will apply, a breach of which may result in disciplinary action.
  • A mere reminder about workplace policies may be insufficient if employees do not have access to, nor training in, such policies.
  • Set specific starting and finishing times, reminding employees that a decision to ‘party-on’ after the event will not be condoned by the employer.
  • Ensure sufficient food, non-alcoholic beverages and water are available.
  • Liaise with function centre management to ensure that responsible service of alcohol rules will be upheld and that a key employer will be notified of any employee or guest in danger of excessive alcohol consumption.
  • Provide employees with access to safe transportation after the party and ensure that they start their journey home from the event safely.

Employees

  • Be respectful of others, their opinions and beliefs and conduct yourself appropriately. Try to avoid topics that are likely to become heated and, if discussions get too controversial, walk away and get on with enjoying the party.
  • Make sure you are familiar with company policies and codes of conduct.
  • Drink sensibly and eat well to slow alcohol absorption.
  • Look out for your colleagues and guests and ask for assistance if you believe somebody’s welfare might be compromised.
  • Don’t get drawn into office gossip or behaviour that may be perceived as offensive, lude or explicit.
  • Be mindful about social media – apart from checking on the children and calling a taxi to get home safely, why not just leave the mobile aside and get on with enjoying the night.

Conclusion

Well-planned end of year work celebrations can be rewarding and build morale within the workplace. By following some simple steps, employers and employees can help to ensure the party is inclusive and fun for everybody, while keeping professional and personal reputations intact and avoiding complications. 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.

Suspended Licence? Applying for a Special Hardship or Work Licence in Queensland

Losing your driver’s licence can throw your life into complete disarray, especially if you rely on driving for your job, family responsibilities, or essential activities. In Queensland, there are special court applications that might allow you to keep driving under very specific, restricted conditions.

These special allowances are known as Special Hardship Orders or Restricted (Work) Licences. They are two distinct orders, used in different situations, and have strict rules about who can apply.

This article provides an overview of each type and the key steps involved in the application process. The information is general only and does not constitute legal advice. For assistance tailored to your circumstances, we recommend speaking to an experienced lawyer.

Summary of Key Differences

FeatureSpecial Hardship OrderRestricted (Work) Licence
Why is your licence suspended?High-speed offence (40km/h or more over the limit), or breaking a “good behaviour” demerit point limitA drink driving or drug driving offence (provided your BAC was under 0.15 and you weren’t driving under the influence)
When to Apply?Within 21 days of the licence suspension taking effectAt the time you are convicted by the court, before the Magistrate orders your disqualification
What can you drive for?Allows driving for specific reasons, which must be proven to the court. This could be for work or other severe hardship reasons (like medical appointments)Allows driving only for specific work purposes, including travel to and from work (if no other reasonable transport exists) and driving is required as part of your job
Required Licence TypeQueensland Provisional or Open LicenceQueensland Open Licence

1. Special Hardship Order

A Special Hardship Order is for drivers whose licence has been suspended due to:

  • A high-speed offence (driving more than 40km/h over the posted speed limit); or
  • Accumulating two or more demerit points while driving under a Good Driving Behaviour period (if you previously elected this option instead of an initial suspension).

Who is Eligible to Apply?

To be eligible, you must meet strict criteria, including:

  • You held a Queensland Provisional or Open Licence immediately before the suspension.
  • Your suspension is for one of the two reasons listed above.
  • You have not had your licence suspended, cancelled, or disqualified (with some exceptions) within the last five years.
  • You have not been convicted of dangerous driving within the last five years.

What You Must Prove to the Court

Eligibility alone is not enough; you must convince the Magistrate that the loss of your licence would cause:

  • Extreme hardship to you or your family by depriving you of your means of earning a living (i.e., losing your job); or
  • Severe and unusual hardship to you or your family for other reasons (e.g., being the only person available to drive a family member to regular, necessary medical treatment).

Simply needing the licence for convenience, or for basic tasks like grocery shopping or the school run, will generally not be enough to satisfy the court.

Key Application Steps for a Special Hardship Order

  • Act quickly: You must lodge your application with the Magistrates Court within 21 days of your licence suspension taking effect.
  • Gather evidence: You will need to prepare a detailed affidavit (a sworn statement) from yourself, and usually one from your employer (or other person whose life would be severely impacted), setting out all the facts to support your claim of hardship.
  • Lodge documents: File your application and supporting evidence at a Magistrates Court registry in your district. A court fee applies.
  • Notify Transport and Main Roads (TMR): Once your documents are accepted and stamped by the court, you must give a copy to TMR at least seven days before your court hearing. Your suspension is usually lifted until the day before the hearing, allowing you to drive once TMR has received the stamped copies.
  • Attend Court: You or your legal representative must attend the court hearing to speak to the Magistrate and ask for the Order to be granted.

2. Restricted (Work) Licence

A Restricted Licence is available for certain drivers facing disqualification for:

  • Driving with a blood alcohol concentration (BAC) between 0.05% and less than 0.15%.
  • Driving with a relevant drug present in your blood or saliva (but not driving under the influence of drugs).

Who is Eligible to Apply?

To be eligible for a Restricted (Work) Licence, you must meet several criteria, including:

  • You held a Queensland Open Licence at the time of the offence.
  • You must be facing a disqualification for one of the specific drink or drug driving offences mentioned above (you are ineligible if your BAC was 0.15% or higher, or if you were charged with driving under the influence).
  • You have not been convicted of a drink driving, drug driving, or dangerous driving offence in the last five years.
  • You have not had your licence suspended or disqualified (with some exceptions) in the last five years.

What You Must Prove to the Court

You must satisfy the court that:

  • You are a “fit and proper person” to hold a licence, having regard to the safety of other road users.
  • Failing to grant the work licence would cause extreme hardship to you or your family by depriving you of your means of earning a living.
  • You must show that losing your job and your income is a likely result if you cannot drive. It is not enough to say that it would be inconvenient or make your job harder.

Key Application Steps for a Work Licence

  • Preparation is key: Unlike the Special Hardship Order, you must apply for the Restricted (Work) Licence at the time you are convicted and sentenced for the driving offence. This means you must have all your documents ready before your court date.
  • Affidavits: You will need to prepare detailed affidavits from yourself and your employer explaining your essential need to drive for work and the extreme financial hardship that would result if you lost your licence.
  • Court hearing: At your court appearance, you plead guilty to the charge and then make the application for the Restricted (Work) Licence.

The Importance of Legal Advice

Both the Special Hardship Order and the Restricted (Work) Licence applications are highly technical processes with strict time limits and complicated legal requirements. The courts do not take these applications lightly. If you fail to meet all the criteria, or if your application documents are incorrect or not persuasive, the Magistrate will refuse the order, and you will lose your only chance to apply.

An experienced Queensland traffic lawyer can:

  • Confirm your eligibility.
  • Prepare your application and detailed affidavits to maximise your chance of success.
  • Represent you in the Magistrates Court.

If you or someone you know is facing a licence suspension or disqualification in Queensland, please contact us today to discuss your circumstances and eligibility for a Special Hardship Order or Restricted (Work) Licence. Please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Social media and family law – Just don’t do it!

Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life.  Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones.  But what happens when people going through a relationship breakdown take to social media? Usually little good comes of it, and sometimes quite a lot of bad can result.

Social media as evidence

If you are going through a separation, you should expect your former partner, their lawyer or the children’s lawyer to search social media to see if they can find out anything damaging about you that could be used as evidence. For example, if you are involved in a financial dispute and might be claiming that you cannot afford to pay spouse maintenance or increased child support, it would probably not be a good idea to share on Instagram photos of your latest holiday or new car.

Similarly, when involved in a parenting dispute, you would be wise not to post to Facebook about your latest “big night out”, especially if the children were in your care at that time.

When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another.  So, it is not likely to be helpful if the Court is shown evidence of abusive or derogatory posts you have made on social media about your former partner.

Of course, many people have social media privacy settings which limit the information that can be seen by non-“friends”. If you haven’t set your social media privacy in that way, you would be wise to do that while you’re sorting out the issues arising from your relationship breakdown. However, even with tight privacy settings, it’s still better to be very careful about what you post, or just don’t do it at all.

Social media and prosecution

The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.

That prohibition has not prevented some people involved in family law proceedings from using social media as a weapon against their former partner, by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.

In two recent cases involving such unlawful social media publication, the Court focused primarily on two things.

Firstly, the Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.

Secondly, the Court considers it in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, which some litigants have used social media to attack.

In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.

In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.

Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.

Can social media be good?

The cases referred to above involved ongoing bitterness and acrimony between the separated couple. Happily, that isn’t always the case, and some separating parents can respectfully communicate and cooperate with each other for the benefit of their children. In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.

Conclusion

Unless you and your former partner can find a way to privately use electronic communication to help you co-parent your children after separation, the general guideline when it comes to social media and family law disputes is just don’t do it.

Not only would you not want to find your Facebook posts being used as evidence against you in court proceedings, you could even expose yourself to prosecution by the Federal Police for breaching the law against publication of information relating to family law proceedings. 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 Relevance of a De Facto Relationship in Australia

Australian society has long recognised the existence of non-traditional domestic partnerships. This has been reflected across various laws, with de facto relationships holding significant weight from a legal perspective. This can be a confusing area, especially when it comes to understanding what a de facto relationship actually is and why it matters from a legal stance.

So, why is this important, and what does it mean for you?

This article breaks down what constitutes a de facto relationship in Australia, how the law determines if one exists, and why this status is so relevant, particularly in areas like family law and financial matters. The information is general only and is not intended to be legal advice. If you need guidance, we recommend consulting an experienced lawyer.

What is a De Facto Relationship?

The Latin term “de facto” simply means “in fact” or “in reality”. In a legal sense, it means a couple is living together on a genuine domestic basis, even though they aren’t married.

The definition of a de facto relationship is found in section 4AA of the Family Law Act 1975 (Cth). The Act is a federal law, and its principles are applied across Australia, although some states have their own specific laws that also deal with de facto relationships, particularly in areas outside of family law.

According to the Family Law Act, a person is in a de facto relationship with another person if:

  • They are not legally married to each other.
  • They are not related by family.
  • They live together on a genuine domestic basis.

The third point is the one that often requires the most thought, and the law looks beyond simply sharing a house. To determine if a genuine domestic basis exists, a court will consider various factors. No single factor is more important than another, and a court will look at all of them to get a complete picture of the relationship.

These factors include:

  • The duration of the relationship: How long have you been together? Generally, a de facto relationship needs to have lasted for at least two years. However, this is not a strict rule, and there are exceptions.
  • The nature and extent of your common residence: Do you live together? Do you have shared responsibilities for the home?
  • Whether a sexual relationship exists: This is one of the factors, but it is not a defining one. A couple can be in a de facto relationship even if they no longer have a sexual relationship.
  • The degree of financial dependence or interdependence, and any arrangements for financial support: Do you share bank accounts, split bills?
  • The ownership, use, and acquisition of property: Do you own assets together, like a car or a house?
  • The degree of mutual commitment to a shared life: Do you consider yourselves a couple and present as such to the world?
  • Whether the relationship is registered under a prescribed law of a state or territory: In some states, you can register a relationship, which provides formal legal recognition.
  • The care and support of children: Do you have children together, or do you care for each other’s children?
  • The reputation and public aspects of the relationship: Do friends, family, and the community see you as a couple?

The law looks at the combination of these factors to decide whether a de facto relationship exists.

Why a De Facto Relationship is Relevant in Australia

The legal recognition of de facto relationships is a big deal because it grants de facto couples many of the same rights and responsibilities as married couples. This is most obvious in two key areas: family law and financial matters.

Family Law

For many years, couples who were not married had limited legal recourse if their relationship ended. That changed with reforms to the Family Law Act that came into effect in 2009. These changes gave de facto couples the right to ask a court to make orders about property settlement and spousal maintenance after a relationship breakdown, just like a married couple.

The principles for dividing assets in a de facto relationship are largely the same as for a married couple. A court will consider:

  • The assets and debts of the relationship.
  • The financial contributions each person made, such as income, savings, and assets brought into the relationship.
  • The non-financial contributions. These can include caring for children, looking after the home, or supporting the other person’s career.
  • The future needs of each person, such as their age, health, income, and who has care of the children.

This legal recognition means that if you are in a de facto relationship and it ends, you are protected by the same legal framework as a married couple when it comes to property division.

Financial Matters

Beyond family law, being in a de facto relationship can impact a range of other financial and legal areas:

  • Superannuation: Many superannuation funds recognise de facto partners as beneficiaries for death benefits.
  • Wills and inheritance: In some cases, a de facto partner can make a claim on a deceased partner’s estate, even if they were not included in the will. The law in each state and territory varies on this point.
  • Social security and government benefits: Your de facto status can affect your eligibility for benefits from Centrelink, as they assess your combined income and assets.

Key Takeaways

The concept of a de facto relationship acknowledges that many people choose not to marry but still want the same legal protections and recognition as married couples.

If you are in a relationship that you think might be a de facto relationship, it is important to understand your rights and obligations, especially if you are considering buying property together or if the relationship ends. The law’s purpose is to ensure that both partners are treated fairly and that any children of the relationship are properly cared for.

The detailed and comprehensive definition of de facto in the Family Law Act ensures that the unique circumstances of each couple are taken into account, providing a flexible framework for addressing a wide range of situations.

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.

Navigating Resident Return Visas Australia

Australia’s dynamic immigration landscape often involves individuals who, having previously held citizenship or permanent residency, find themselves needing to navigate the intricacies of Resident Return Visas (RRVs). This article sheds some light on what RRVs entail, their usage, eligibility criteria, and the residency requirements individuals must meet to ensure a smooth transition or return to Australia.

What is an RRV?

An RRV is a travel document issued by the Australian government that allows individuals who hold or have held, permanent residency to return to Australia after their initial visa has expired. It serves as a bridge between the expiration of the original permanent residency visa and the acquisition of citizenship, providing flexibility for individuals to travel in and out of Australia.

When is an RRV Used?

There are several specific circumstances when an RRV may be required. The most common examples are:

Expired Permanent Residency Visa

Individuals with an expired permanent residency visa who wish to return to Australia need an RRV. This is particularly crucial for those whose initial visa has expired, and who have not yet acquired Australian citizenship.

Existing Permanent Residents Leaving Australia

Permanent residents planning to leave Australia temporarily and return after an extended period must ensure they hold a valid RRV to avoid complications upon re-entry.

Australian Citizens Leaving and Returning

Australian citizens do not require an RRV for travel. However, dual citizens or individuals holding citizenship in another country may need an RRV if they wish to enter Australia as a permanent resident.

Eligibility Requirements and Conditions

Obtaining an RRV is contingent upon meeting specific eligibility criteria and adhering to certain conditions.

Previous Permanent Residency

To be eligible for an RRV, applicants must have previously held a permanent residency visa or previously been an Australian citizen. The type of visa held previously can impact the validity and conditions of the RRV.

The applicant must demonstrate a substantial period of residence in Australia or significant ties to the country. This is assessed by considering the number of days the individual has spent in Australia during the preceding five years. To be eligible for a five-year RRV, applicants must have spent at least two years in the last five years as permanent residents or citizens in Australia. This establishes a reasonable connection to the country. For those who do not meet the five-year criterion, a one-year RRV may be granted if they have spent at least one day in the last five years as a permanent resident or citizen in Australia.

Compassionate Grounds

Even if individuals do not meet the standard residency requirements, an application for an RRV may be made on compassionate grounds. This involves demonstrating compelling situations concerning employment, family commitments, or unique personal circumstances.

Substantial Ties to Australia

If an applicant does not meet the traditional residency requirements, they can still qualify if they can prove substantial ties to Australia. This includes family connections, business interests, or cultural affiliations.

Australian Values Statement

Applicants aged 18 years and over applying for entry on an RRV must sign an Australian Values Statement, affirming their commitment to uphold Australian values while in the country.

Navigating the Application Process

The application for an RRV is typically submitted online through the official immigration portal. The online platform allows for efficient processing and communication with the Department of Home Affairs. The processing time for RRV applications can vary. It is advisable to apply well in advance of planned travel to ensure timely approval.

An application fee is applicable and varies based on the type of visa sought and the individual circumstances. The fee must be paid when submitting the RRV application. Applicants must provide supporting documentation, including proof of previous residency, compelling reasons for absence, evidence of substantial ties, and any other relevant information to strengthen their case.

 

Conclusion

To navigate the complexities of RRVs in Australia you will need a thorough understanding of the eligibility criteria, residency requirements, and the application process. For individuals seeking to return to Australia after the expiration of their initial permanent residency visa, or those planning extended stays abroad, obtaining a valid RRV is crucial. By carefully assessing individual circumstances, meeting residency requirements, and providing compelling reasons for absence, applicants can enhance their chances of a successful RRV application and enjoy the benefits of continued connection to Australia.

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

How to Locate an Original Will

Losing a loved one is often an emotionally overwhelming experience, and amidst the grief, managing legal matters can add another layer of complexity. Yet it most often falls to those closest to the deceased to manage the administrative burden created by death. A crucial document in such circumstances is the Last Will and Testament of the deceased. A Will outlines the deceased person’s wishes regarding the distribution of their assets but may also express their intentions in relation to the care of children and pets, and other critical instructions. Unfortunately, the location of this critical document is often not obvious, and locating the Will is frequently a considerable source of frustration for those administering the estate.

What Makes a Will Valid?

The formal requirements for a Will to be considered valid in Australia usually include it being in writing, signed by the testator (the person making the Will), and witnessed by at least two competent witnesses who also sign the document. Each state and territory in Australia sets out the legal requirements for a formal Will in that jurisdiction.

When a document intended as a Will does not satisfy these requirements, it is known as an “Informal Will”. For example, if a Will has not been properly signed or witnessed, it will fail to meet the requirement of a Will as set out in the legislation, even if it is correct in every other aspect. In some circumstances, an Informal Will may be admitted to probate by the Supreme Court even if it does not meet the strict legal requirements.

How Do You Locate a Will?

The initial step to locating a Will is to start by searching the deceased’s home for a physical copy of the Will. You should look in secure places like safes and filing cabinets, or other places where the deceased tended to keep important papers. For instance, the Will might be held in safe custody with a bank or a storage facility. You can reach out to these institutions to inquire if the deceased had a safe deposit box or storage unit.

You can also contact the deceased’s lawyer who may have drafted the Will. Lawyers often retain the original of the Will for safekeeping, or they might have information about the location of the original document. You can also check with the relevant state or territory’s Supreme Court registry. They maintain records of Wills that have been registered, although it is important to know that most people do not register their Will.

Finally, you can conduct a Probate Search at the relevant Supreme Court to discover any lodged or granted probate of the deceased’s Will, which may help if another family member or friend already located the Will and began the administration of the deceased’s estate.

Legal Assistance

When a Will cannot be located using these initial strategies, you may need to seek guidance from a qualified legal professional or lawyer experienced in estate planning and probate matters. They can offer tailored advice, clarify legal obligations, and assist in addressing any concerns regarding administering the estate without a valid, original Will. Ultimately, proper documentation and legal guidance can significantly contribute to honouring the deceased’s wishes and minimising potential conflicts during the probate proceedings.

Do You Need the Original Document?

When a Will is made in Australia, especially when it is drafted by a lawyer, it is often copied. In such cases, the testator will usually take a copy for their records and the original is stored in a safe location. Understandably, it is often this copy that is found by the deceased’s family, but it is the original that is considered the primary document. This original document holds significant legal weight and is typically required for the probate process to validate its authenticity.

However, circumstances might arise where the original Will cannot be located after a person’s passing. In such cases, there are procedures in place that may accept a copy of the Will under specific conditions. These conditions often involve proving the authenticity of the copy through various means, such as presenting witness statements, providing evidence that the original was not destroyed with the intent to revoke it, or demonstrating that the copy reflects the true intentions of the deceased.

While a copy of the Will might be accepted under certain circumstances, it can complicate the probate process and potentially lead to delays or disputes among beneficiaries or interested parties. Therefore, it is strongly advisable to keep original Wills in a safe and easily accessible location, such as with a trusted legal advisor, the executor, or in a secure place like a safety deposit box.

Conclusion

The process of locating an original Will can demand patience, diligence, and often legal assistance. Understanding the avenues available and systematically exploring each option increases the likelihood of finding the document. While it may seem daunting, the efforts put into locating the original Will are invaluable in honouring the wishes of the departed and navigating the legalities of estate distribution.

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

Assessing Eligibility for a Partner Visa in Australia

A visa is a form of permission for a non-citizen to enter, transit or remain in a particular country. In Australia, a partner visa offers a pathway for individuals to join their partners and establish a life together in this country. This visa category recognises and supports genuine relationships, enabling partners to live, work, and study in Australia. However, before embarking on an application for a partner visa, it is crucial to understand the eligibility criteria and the factors used to assess the genuineness of a relationship. By understanding the requirements, individuals can navigate the partner visa process with confidence and increase their chances of a successful application.

What Can a Visa Partner Allow You to Do?

Obtaining a partner visa opens up numerous opportunities. With a partner visa, you can live in Australia for an indefinite period, work and study, access Medicare (Australia’s healthcare system), and even apply for Australian citizenship if you meet the requirements. This visa provides a solid foundation for building a life with your partner in this country.

Types of Partner Visas

There are different types of partner visas available in Australia, depending on the circumstances of the relationship. The most common ones include the “prospective marriage” visa and the “partner” visa.

A prospective marriage visa (also known as a “fiancé” visa) is for individuals who are engaged to an Australian citizen, permanent resident, or eligible New Zealand citizen. It allows the visa holder to enter Australia and marry their partner within the validity period of the visa.

A partner visa is for individuals who are already in Australia and are in a genuine and committed relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen. Both the applicant and their partner must be at least 18 years old, and the applicant and their dependents must meet certain health and character requirements. To obtain a partner visa, evidence must be provided to demonstrate the genuineness of the relationship.

What is a Genuine Relationship?

A genuine relationship is the cornerstone of a successful partner visa application. The Department of Home Affairs assesses the genuineness of the relationship based on specific factors, but it is important to note that this assessment is not limited to these factors alone. Each case is unique, and the Department of Home Affairs evaluates the overall circumstances to determine the genuineness of the relationship.

The first step of proving a genuine relationship is each person describing their commitment and emotional support for their partner, along with evidence of communication, such as emails, letters, or phone records. Another significant factor in establishing a genuine relationship is evidence of joint financial commitments, such as shared bank accounts, joint ownership of property, or joint liabilities. Proof of cohabitation is often also provided, which can be demonstrated by joint leases or rental agreements, utility bills in both names, or correspondence addressed to both partners at the same address.

Parties applying for a partner visa will often also show evidence of a shared social life, such as joint invitations to family events, travel documents showing joint travel, or photographs and testimonies from friends and family. Applicants may also produce documentation showing joint future plans, such as wills, joint investments, or joint participation in long-term commitments, like purchasing property together.

Refusal

If your application for a partner visa has been refused, you should read your refusal notice carefully because each decision is different. This letter should advise:

  • if you have the right to appeal your decision
  • the timeframe available to lodge an appeal
  • the relevant body your appeal should be directed to.

If you are already in Australia, you will probably be granted the right to appeal the refusal to an Australian tribunal or a court. Alternatively, if your partner visa application was lodged offshore, your Australian citizen partner may be able to lodge the appeal.

The most common place to appeal a partner visa refusal decision is to the Administrative Appeals Tribunal (AAT). There are strict time limits when appealing to the AAT, so it is very important to read the appeal deadline in your visa refusal letter carefully. Unfortunately, AAT appeal deadlines cannot be extended, and we recommend obtaining legal advice to assist with a proposed appeal.

Conclusion

A partner visa supports genuine relationships by allowing partners to live, work, and study in Australia. Immigration laws, however, are complex and it is important to understand the eligibility criteria and potential issues before making an application. An experienced immigration lawyer can guide you through the process to ensure your application meets the necessary conditions to give you the best possible chance of having a visa granted.

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

Australian Employees’ Right to Disconnect from Work

In a move towards improving work-life balance, Australian workers now have a legislated right to disconnect from work. The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 adds new provisions to the Fair Work Act 2009 giving employees a “right to disconnect”, enabling them to “switch off” from certain out-of-hours work-related contact. This means that employees should not be penalised or reprimanded for not responding to work-related matters during their personal time unless their refusal to respond is unreasonable.

This new right addresses the increasingly blurred lines between work and personal life, particularly in the age of remote work and constant digital connectivity. It’s a step towards empowering employees to reclaim their personal time and prioritise their well-being.

Understanding the “right to disconnect”

The right to disconnect gives employees the right to switch off from certain out-of-hours work-related contact. Employees can now refuse to respond to after-hours texts, emails, and calls from their employers or associated parties unless it is unreasonable to do so.

The provisions cover national system employees and employers and commenced on 26 August 2024, unless the employer is a “small business employer”, in which case the provisions apply from 26 August 2025. All modern awards will be reviewed to include industry-specific rights to disconnect for employees.

What factors determine whether a refusal to respond is unreasonable?

The right to disconnect does not necessarily prohibit your employer from contacting you out of hours, however, it will inform the circumstances through which such contact should be made and when it will be deemed unreasonable for you to refuse to respond.

The following factors are not exhaustive, however, must be taken into account in determining whether your refusal to respond is unreasonable:

  • The reason for the contact/attempted contact.
  • The method of contact/attempted contact and level of disruption caused.
  • The extent of compensation (monetary and non-monetary) provided for you to be available or working hours outside of your ordinary hours.
  • Your role and level of responsibility.
  • Your personal circumstances including family and carer responsibilities.

Where the contact or attempted contact is required by law, an employee’s refusal to respond will be deemed unreasonable.

If your employer contacts you outside of work hours, you can refuse to respond unless it is unreasonable to do so. If you are unsure whether it is unreasonable to respond, you should consider the factors listed above.

If your employer takes adverse action against you for exercising your right to disconnect, you may have a complaint under the Fair Work Act. You should contact your union or a lawyer for advice.

Navigating the right to disconnect: challenges and opportunities

While the right to disconnect is a positive step, its successful implementation will require careful navigation. Clear communication and collaboration between employers and employees are important to ensure its effectiveness.

Employers

Employers should establish clear policies and guidelines around after-hours communication, ensuring that employees understand their rights and responsibilities. Processes might include:

  • Having discussions with employees to determine reasonable out-of-hours contact and reviewing internal processes.
  • Reviewing employment contracts and position descriptions to ensure they include expectations on employees’ availability outside of working hours and whether such availability is reflected in remuneration.
  • Implementing policies to deal with issues raised by employees who wish to exercise the right to disconnect.
  • Having discussions with clients and other stakeholders to ensure boundaries and expectations regarding out-of-hours contact with employees are set.

For workplaces operating in a global environment with different time zones, special consideration will be required to navigate expectations for employees to participate in out-of-hours meetings, zoom conferences, telephone calls, etc.

Employees

In exercising a right to disconnect, you might consider:

  • Setting boundaries and communicating your expectations around availability clearly to your employers and colleagues.
  • Taking ownership of your personal time and resisting the urge to check work communications outside of work hours.
  • Turning off your work phone and email notifications outside of work hours, if it is reasonable to do so.
  • Taking breaks from work during the day to relax and recharge.
  • Making time for yourself and your loved ones outside of work.

Conclusion

The right to disconnect is expected to have a significant positive impact on employee well-being and mental health. By allowing workers to truly switch off from work, it enables them to rest, recharge, and engage in personal activities that contribute to their overall well-being. Whether an employee’s refusal to respond to a work-related request is unreasonable will likely play out differently across different workplaces and for different roles.

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

Conveyancing Queensland: Changes to Seller Disclosure Requirements

For years, Queensland’s property market has largely operated on a ‘buyer beware’ principle, placing the responsibility on the buyer to conduct extensive investigations before purchasing a property. However, from 1 August 2025, new seller disclosure requirements operate under the Property Law Act 2023 (Qld), fundamentally changing how properties are bought and sold in the Sunshine State. This is a significant development for anyone looking to sell property in Queensland.

The seller disclosure regime aims to enhance transparency for buyers and reduce the risk of disputes after a contract is signed, bringing Queensland more in line with other Australian states like New South Wales, Victoria, and South Australia.

What’s Changing for Sellers?

The biggest change is the introduction of a mandatory Seller Disclosure Statement (Form 2). This comprehensive document, along with various ‘prescribed certificates’, must be provided to potential buyers before they sign a contract. This means that sellers will need to be proactive in gathering information about their property much earlier in the sales process.

What Must Be Disclosed?

The Seller Disclosure Statement requires sellers to provide a range of important information about the property, including but not limited to:

  • Seller and property details: The seller’s name/s, the property address, and its lot and plan description.
  • Encumbrances: Details of all registered and unregistered encumbrances affecting the property. This includes easements (even if unrecorded), leases (whether written or verbal), and statutory encumbrances like rights for infrastructure access.
  • Tenancy information: If the property is currently leased, details of the residential tenancy agreement.
  • Zoning and land use: The property’s zoning classification under the local planning scheme.
  • Government notices: Information about any notices given by local, state, or Commonwealth government entities regarding transport infrastructure proposals (like road resumptions), contamination, tree orders, or heritage listings.
  • Building and compliance:
    • Details of any building work carried out by an owner-builder in the last six years.
    • Any unsatisfied ‘show cause’ or ‘enforcement’ notices issued under the Building Act 1975 (Qld) or Planning Act 2016 (Qld).
    • Pool safety compliance (if applicable), including whether there is a valid pool safety certificate.
  • Rates and water charges: Details of the most recent rates and water assessments.
  • Community titles schemes (body corporates): If the property is part of a community titles scheme (like a unit or townhouse), a copy of the most recent Community Management Statement and a Body Corporate Certificate.

In addition to the Form 2, sellers must also provide prescribed certificates, which generally include:

  • A title search showing interests registered under the Land Titles Act 1994
  • A copy of the plan of survey registered under the Land Titles Act 1994
  • Relevant notices issued under building and planning laws
  • Copies of any current notices or orders from government authorities requiring work or money to be spent in relation to the property
  • Relevant environmental notices
  • For body corporate properties, the Community Management Statement and a Body Corporate Certificate

Certain exceptions apply to the seller disclosure obligations, and your solicitor can advise you in this regard.

What’s Not Covered?

It’s important to understand that while the regime significantly increases disclosure, some matters will remain the buyer’s responsibility to investigate. The Seller Disclosure Statement will not typically cover:

  • Flooding or natural hazard history: While a crucial consideration in Queensland, sellers are not generally required to disclose this. Buyers should still conduct their own flood searches and due diligence.
  • Structural soundness of the building or pest infestation: Building and pest inspections remain critical for buyers.
  • Current or historical use of the property and whether building works are approved/certified: Buyers will still need to undertake their own council building approval searches.
  • Presence of asbestos within buildings or improvements.
  • Details about services connected to the property.

The principle of ‘buyer beware’ will still apply in these areas, highlighting the ongoing importance of a thorough due diligence process for purchasers.

Why a Disclosure Regime?

The disclosure regime aims to:

  • Increase transparency: Ensure buyers have access to critical information about a property before they commit to a contract.
  • Reduce post-contract disputes: By providing more information upfront, many common issues that lead to disputes after a contract is signed can be identified and addressed earlier.
  • Align with other states: Bring Queensland’s property sale processes more in line with the established practices in New South Wales, Victoria, and South Australia.

Consequences of Non-Compliance

The new laws carry serious consequences for sellers who fail to comply. If a seller does not provide a completed and signed Seller Disclosure Statement and all required certificates before the buyer signs the contract, or if the information provided is inaccurate or incomplete in relation to a material matter, the buyer may have a statutory right to terminate the contract at any time before settlement.

What This Means for Sellers

If you’re planning to sell a property in Queensland, here’s what you need to know:

  • Prepare early: Don’t wait until you have a buyer. Start gathering the necessary documents and preparing your Seller Disclosure Statement well in advance. This will help avoid delays once a buyer expresses interest.
  • Seek legal advice: Engage a conveyancing lawyer early in the process. They can assist you in preparing the comprehensive Seller Disclosure Statement and obtaining all the required certificates, ensuring compliance with the new laws.
  • Accuracy is key: The information provided in the disclosure statement must be accurate and up-to-date at the time it’s given to the buyer. Any changes that materially affect the property after disclosure may need to be addressed.
  • Consider the costs: Be aware that you will now incur costs for various searches and certificates upfront, which were previously often the buyer’s responsibility or obtained later in the process.

Key Takeaways

  • Mandatory disclosure: From 1 August 2025, sellers in Queensland must provide a comprehensive Seller Disclosure Statement (Form 2) and prescribed certificates to buyers before a contract is signed.
  • Increased transparency: This new regime aims to give buyers more information upfront, reducing post-contract surprises.
  • Seller responsibility: The onus is now firmly on the seller to provide accurate and complete information.
  • Risk of termination: Failure to comply can give buyers the right to terminate the contract at any time before settlement.
  • Early preparation is crucial: Engage a conveyancing lawyer early to ensure you meet all your obligations and avoid potential issues.

The new seller disclosure requirements represent a significant change for Queensland conveyancing. By understanding these changes and preparing accordingly, sellers can navigate the sales process with greater confidence and minimise risks.

This is general information only. Always seek professional legal advice to ensure your specific circumstances are properly addressed. 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 financial impact of divorce and separation – moving forward with advice and guidance

The financial impact of divorce and separation can be huge. There are legal costs to consider, and how the mortgage and associated bills and childcare costs are going to be paid moving forward. Your employment and earning prospects may be limited especially if you are the main carer for the children of the relationship. This may all seem very overwhelming, but there are things you can do to help reduce the impact your financial burden.

Obtain good financial and legal advice

Ensuring you get good financial advice when divorcing or separating can be extremely beneficial. We recommend you speak with both a family lawyer and an accountant/financial planner to get advice on the most efficient way to move forward.

We cannot stress the long term value of obtaining legal representation from an experienced family lawyer, as it can help you receive a more favourable property settlement. There are numerous ways you can help keep your legal feels as low as possible, our family lawyers are happy to discuss this with you during your first appointment.

Attempt Alternative Dispute Resolution

Legal costs involved in reaching a property settlement can be further minimised by attending ADR. ADR minimises legal fees and avoids going through a costly court process. It can provide a speedy resolution and assist you to work out a viable short term plan while you are finalising your property settlement. Even if you plan to reach a property settlement without going to court, it is important that you seek legal advice as it can help reduce stress by providing you with an understanding of your rights and entitlements.

Plan how bills will be paid and set a budget

If separating couples are on amicable terms and there is no family violence, both parties can continue to reside in the family home. You can still finalise your property agreement during this period and attend ADR. This will allow both parties to plan and prepare for their future financial needs without the burden of an extra mortgage, rent and living expenses.

It is also important to discuss who will pay what regarding any debts obtained during the relationship and ongoing costs of maintaining the property of the relationship, as soon as possible. This will help minimise penalties or costs associated with non-payment of debts. Although you may wish to remain in the family home for emotional reasons, consider options involving obtaining a smaller home, ways you can fill any income gaps such as finding better paid work, starting a business from home, or applying for Centrelink payments.

Preparing a budget and discussing what each party can afford to pay ensures that both parties know exactly where they stand financially. Moneysmart.gov.au has tools and information on how to manage your money on a low income, financial counselling, and urgent help with money if you’re struggling or in crisis.

Know your superannuation entitlements in divorce or separation

Superannuation has become one of the largest marital assets and can be shared as part of the property settlement. Financial contributions are not the only factor considered when assessing the value of a Superannuation split. Non-financial contributions such as, care of children of the relationship and the family home may also be considered. Splitting Superannuation as part of a property settlement can be complex. This is why we recommend seeking further advice and guidance from an experienced family lawyer.

Getting a share of the other parties’ superannuation can help provide long term financial security and ensure you have money for retirement.

Don’t be afraid to ask for help!

Separation and divorce can be very overwhelming, especially if you have not handled the family finances previously. It is important to reach out and find someone who can help guide you through the maze of finances and separation.

If you need financial support, contact Centrelink who can recommend which payment/s you may be entitled to.

It is also important to look after your mental wellbeing so you’re able to make important decisions about your future! If you need emotional support, speak to your GP who can recommend appropriate counselling services.

Conclusion

The financial impact of divorce and separation can be overwhelming, ensuring you get good legal and financial advice early on when divorcing or separating is critical.

Planning how debts and bills will be paid, setting a budget and knowing your superannuation entitlements is important in keeping on top of your changing financial circumstances. Attempting ADR is another important factor in minimising legal costs throughout settlement negotiations.

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.