Archive for the ‘Newsletters’ Category

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.

Protecting business interests in family law proceedings

Family law issues can be disruptive to a business entity, with the potential to adversely affect its activities, cashflow, and financial viability. Problems can stem from a relationship breakdown between domestic co-owners, or the divorce or separation of a third-party business partner or shareholder.

Protecting a business from potential loss and disruption in the wake of family law proceedings requires proactive measures. Whether a person owns a business interest individually, jointly, or through a partnership, company or trust, that interest must be disclosed if he or she is party to a property law matter and considered in the pool of assets available for division between the separated parties.

This article looks at some strategies business owners might consider to help safeguard their business from the impacts of a family law matter. The information is of a general nature only, and we recommend seeking professional advice relevant to your circumstances.

Proactive steps to safeguard your business from divorce or separation

Risk management is about implementing strategies to minimise the adverse effects of an unforeseen event. As the name suggests, risk management is proactive and should take place at the planning phase of a business. There are certain steps that all business owners can take to minimise the impact a separation or divorce can have on their business.

Consider the business structure and its ownership

Choosing the best legal structure for your business will take into consideration a range of factors – the size and nature of the business, its anticipated growth and the personal and financial circumstances and objectives of the owners.

Although the Court has discretion to make a range of orders in family law proceedings, different business structures may be treated differently. For example, businesses wholly owned by one or both spouses / de facto partners are generally treated similarly to the other matrimonial assets of the parties, with consideration given to the parties’ respective contributions and involvement when making orders. When a business is owned in partnership with third parties or other shareholders, a Court may be less likely to make orders that fracture the business interests of the other owners.

Trusts, when properly created and managed, can assist in safeguarding assets in certain circumstances, however do not guarantee their protection in a family law property settlement.

Talking to your lawyer and understanding the different types of business structures can help you choose the most appropriate one for your circumstances.

Binding Financial Agreements

A financial agreement is a legal contract between a couple and may be entered before or during a marriage or de facto relationship, or after a relationship ends. These are sometimes referred to as ‘pre-nups’. The agreement predetermines the division of a couple’s assets in the event of, or after separation, and can deal with a range of financial matters, including the treatment of business interests.

A financial agreement can help keep the activities of a business on track in the event of separation by stipulating who should continue running the business, with provisions enabling one party to buy out the other at an agreed price, or based on an agreed method of valuation.

There is, however, a risk that a financial agreement could be subsequently voided by a court post-separation. Your lawyer can advise about the applicable law and risks of entering a financial agreement.

Partnership / shareholder / buy-sell agreements

Many people do not realise the impact that a third-party business partner’s family law matter can have on a business. A carefully drafted agreement can help keep the ‘status quo’ of a business and preserve its value in the event of such circumstances.

Partnership agreements, shareholder agreements and buy-sell agreements deal with a range of matters governing the relationship between business owners. In particular, these agreements can include provisions setting out what will happen should a specified event occur, such as the death, retirement or separation / divorce of a partner.

A buy-sell agreement includes rights and provisions for acquiring and disposing of interests in the business and specifies certain events that will trigger the right to exercise such options. The triggering events usually include the death, retirement, separation or divorce of a partner. Effectively, the agreement can restrict the ownership interests in the business to the existing parties, preventing an ex-spouse of an owner from acquiring an interest in the business as a result of a property settlement. Typical provisions include:

  • prohibitions on departing partners, or their estates, from transferring / selling an interest to a third party without the prior written consent of all remaining owners;
  • mandatory rights or right of first refusal for a remaining owner or owners to acquire interests from a departing owner, his or her estate or ex-spouse;
  • methods for valuing a departing owner’s interest in the business;
  • the automatic conversion of an interest to a non-voting interest upon the triggering of a certain event;
  • funding / instalment arrangements for the acquisition of the business interests from a departing owner.

Similarly, where the business partners are also domestic partners, the agreement can stipulate the division of business interests in the event of separation or divorce (including which partner shall ultimately own the business) and how interests are to be valued.

Maintain accurate records

As well as making good business sense, maintaining sound financial and other records can be very beneficial for attributing contributions made between spouses / de facto partners to a business post-separation. These numbers and records will be important when determining respective interests if negotiating a property settlement and can greatly assist your lawyer when advising on the division of assets.

If a business owned outright between spouses or de facto partners is profitable, one of the parties may wish to retain it and ‘pay out’ the other. Alternatively, the business may be sold to a third party as a going concern while it is performing well. The more profitable the business is, the more likely the parties may dispute its future direction and the division of interests. Typical considerations will be the respective contributions of each party to the success of the business, whether financial or non-financial, and determining its value. In such cases a formal business valuation by a qualified expert can be beneficial.

In hindsight…

Many business owners do not realise the impact a family law matter can have on their business, and it is not uncommon that planning for these contingencies is overlooked. In such cases, a sensible and cooperative approach is required to safeguard the business as it is in nobody’s interests to jeopardise its value because of intractable negotiations.

Preferably, the parties should explore alternative dispute resolution processes with the aim of achieving a fair outcome, remembering that the Court has discretionary powers to order a ‘just and equitable’ division of property including interests in the family business.

Talking to your lawyer and taking the time to plan for unexpected events can greatly assist in protecting the value and longevity of a business

If you or someone you know wants more information or needs help or advice, please contact us on 07 32816644 or email mail@powerlegal.com.au.

Coercive Control Offences in Queensland

Domestic violence laws have become stronger in Queensland.  As of 26 May 2025, coercive control is officially a criminal offence in Queensland. Also, colloquially known as Hannah’s Law, in an effort to prevent intimate partner homicide.  This reform is named in memory of Hannah Clarke, a Brisbane mother who, along with her three children, tragically lost her life in a domestic violence incident in 2020.  Legislators hope that the law will make a positive difference in the lives of victims and help prevent further instances of coercive control and domestic violence.

It is now illegal for an adult to use abusive behaviours towards their current, or former, intimate partner, family member, or informal (unpaid) carer with the intention to control or coerce them.

Defining Coercive Control

A perpetrator uses coercive control to dominate and control their partner in an intimate relationship. This type of behaviour often involves tactics such as isolation, manipulation, intimidation, and surveillance. Over time, this sort of behaviour can have the cumulative effect of denying victim-survivors autonomy and independence.

Coercive control is a pattern of behavioiur that includes:-

  • Isolation
  • Rules and regulations
  • Threats and intimidation
  • Obstruction of employment
  • Monitoring of time
  • Monitoring of communication
  • Taking control of daily life
  • Put-downs
  • Deprivation of basic needs
  • Assault or rape

Hannah’s Law: recognizes:

  • Coercive control is a pattern of behavior used by one person aimed at controlling, dominating or intimidating a person in a domestic relationship through fear;
  • Coercive control includes physical- and non-physical types of aggression used to hurt, humiliate, isolate, frighten, or threaten a victim-survivor including psycho-emotional abuse and financial abuse, isolation, and cyberstalking.
  • Coercive control is a pattern of behaviour used to causethe victim to fear for their safety or the safety of someone else, and

Examples of behaviour that could be considered coercive control include isolating a person from their friends and family, controlling their finances, monitoring their movements, and using threats or intimidation to control their behaviour.

Under this new law, it is also illegal to hire third parties, including private investigators, to locate and monitor a victim-survivor named in a DVO or police protection notice.

The legislation applies to both past and current relationships and if convicted, the criminal offence carries a maximum penalty of 14 years imprisonment due to the serious nature of the offence and the harm coercive control can cause victim-survivors.

Why criminalise coercive control?

Research has shown that there is a strong link between coercive control and domestic homicide. The abuser’s need for control can escalate to the point where they feel that the only way to maintain their power is through violence. In addition, coercive control can create a situation where the victim feels trapped and unable to leave the relationship. The abuser may have convinced the victim that they are worthless or that no one else will ever love them, making it difficult for them to seek help or support. This can increase the risk of homicide as the victim may feel that they have no other option but to stay in the abusive relationship, despite the escalation in violence.

Existing laws already provide police and the courts with additional powers to intervene and protect victims of domestic violence. Police can issue Police Protection Notices and Applications for Protection Order (Domestic Violence Orders) (DVOs) to protect victims of domestic violence from domestic violence and now including coercive control before a full hearing is held. The DVO itself is a civil order however, breaching a DVO is a criminal offence and can result in imprisonment or a fine.

This information is general only and we recommend you obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 32816644 or email mail@powerlegal.com.au.

Succession Planning for Business Owners

As a business owner, you deal with many responsibilities, including having to decide what to do with your business when you move on. Sometimes the logical endgame for a business is to be wound up, but in most cases, the aim is a smooth transition to new ownership. This is particularly important if you plan to either sell the business to finance your next step in life or pass it down to the next generation. In either case, the success of this transition will be partially determined by your preparation. When making your preparations, you also need to contemplate what will happen to the business if you die or become incapacitated. This article explains why succession planning for your business should form part of your estate planning.

What is Succession Planning?

Simply put, a succession plan is a statement of what will happen to your business when you are no longer involved. The plan should include the financial, legal and operational steps involved in any of the likely scenarios that end your involvement in the business. It may also include asset protection for your business, such as “key man” insurance to enable your business to survive the loss of yourself or other significant people.

Selling

If you plan to eventually sell your business, the succession plan may specify the potential buyer, what might be included in the sale, and when you would ideally see this happening. The plan should list key legal agreements, trusts, licences, permits and registrations that will need to be complied with or updated in the event of a sale. For instance, if you have co-owners, your partnership agreement may include a requirement that other owners are given first right of refusal, or the business may involve trusts that dictate the rules of succession.

Handing Down

Perhaps the most challenging but important succession plan is the one that involves handing the business down to successors. The same questions apply as with a sale, with some additional consideration related to tax. Additionally, you will want to safeguard the business during the transition, and this may require significant advanced planning. For instance, you may implement a training program and/or a gradual transition, where the incoming owner/s begin to operate the business before your exit.

When Do You Plan Succession?

It is easy to put off succession planning if you have no immediate plan to exit the business. However, not only does succession planning ensure that you know the long-term direction you want to head with your business, the possibility of an accident or sudden illness means that every owner should have a current succession plan. As such, experts recommend that you should create a succession plan at the outset of the business. You should also review your succession plan regularly, as it may change based on factors such as the success of the business, its value if sold on the open market, or the emerging capacities or interests of the next generation.

Succession in Estate Planning

You also need to consider what will happen if you become incapacitated or die while at the helm of your business.

If You Become Incapacitated

Every adult should have a plan for someone else to manage their legal and financial affairs if they lose capacity to make decisions for themselves, usually called an “enduring power of attorney”. This document gives a person or organisation the power to run your business (including selling it) if you lose your capacity to do so. If your business is held by trusts or other instruments, you should seek expert advice to ensure your attorney will have the required authorities to make decisions.

If You Die

If you are a business owner, your last will and testament should include your business. There are tax implications of passing a business in your will, but that should not deter you. Again, as with a power of attorney, you should consult with a solicitor about the effect of any trusts or holding companies.

If you do not include your business in your will, it will be distributed under intestacy law. The intestacy process is drawn out and inherently uncertain, both of which will endanger your business in the period after your death. In addition, the person who receives the business under intestacy may not be the person you would have chosen.

A will makes it clear who should receive the business. With multiple recipients, your will may include a leadership structure and provision for the heirs to sell to each other. Your will also appoints one or more executors. These individuals will have control of your affairs from your death until the distribution of your estate. They can ensure that the business continues to operate, and any employees and suppliers continue to be paid.

To assist your executor, your succession plan should include documents that identify the assets and liabilities of the business, including intellectual property, insurance policies, key contracts, outstanding debts and loans, and a list of physical assets such as plant/equipment.

Conclusion

An effective succession plan needs to consider the financial, legal and operational requirements of your exit from your business, whether as the result of a sale, gift or unfortunate event. A solicitor can help to demystify this process and make sure that the intention behind your succession plan is embodied in your estate planning.

This is general information only and we recommend you obtain professional advice relevant to your individual circumstances and needs.

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.

Being Arrested or Questioned by Police

The law dealing with arrest and interrogation in Queensland is complicated. It is designed to strike a proper balance between individual rights on the one hand, and the community’s need for effective law enforcement on the other.

Situations where a person’s rights are not observed are common, and it is difficult to do anything about this. The best way to make sure your rights are observed is to know what they are and to speak out if a problem arises. Remember, many people are convicted because of admissions they have made to police. Anything you say to the police may be used by them, even if you are not formally interviewed.

Your rights and obligations when dealing with the police

When dealing with the police you do not have to:

  • answer any questions or make any statements.
  • go to a police station unless you have been arrested (taken into custody) and have been told what you will be charged with;
  • participate in an identification line-up;
  • undergo a forensic procedure unless a court orders you to do so.

You have the right to make a telephone call to a friend and a lawyer from the police station. The police have the power to take your fingerprints if they believe you have committed a serious offence and you are aged 15 or over. If you are aged from 10 to 14, the police need a court order. You must give your name and address if the police ask you. The police must tell you their reason for asking, and give their name, rank and place of work if you ask for it.

Arrest without warrant

The powers of arrest are set out in the Police Powers and Responsibilities Act. You can be arrested and taken to a police station to be questioned if the police think that you have committed a crime. A person should only be arrested if it is necessary to:

  • ensure the appearance of the offender in court;
  • to preserve public order;
  • to prevent the continuation or repetition of the offence; or
  • for the safety or welfare of the public or the offender.

The police do not have to arrest a person found committing an offence, if they believe the case can be dealt with by a Notice to Appear. A Notice to Appear is a notice, issued by the Police, telling a person that they must go to court on a specified date.

If you identify as an Aboriginal or Torres Strait Islander, then under their operating procedures, the police must notify, or attempt to notify a representative from a legal aid organisation. This ensures that you have access to support and legal representation.

Arrest by warrant

Arrests by warrant are the exception rather than the rule. The warrant names the person to be arrested and should be read and shown to that person at the time of arrest. It does not have to be handed to the person. A warrant is normally used in situations where a person on bail or summons has failed to attend court as required, there is a hunt for an offender, or in the case of an escapee from prison.

How long can I be detained?

There is no specified amount of time the police can detain you. The law says you must be either released on bail or brought before a judge within a reasonable time. What a “reasonable time” is will depend on the facts of each particular case. A number of factors determine how long this may be including the time needed to bring you to the court; the number of offences and how complicated they are; time you spend talking to a lawyer, friend, relative or an independent third person; and time spent while you receive medical attention.

Being searched

Police can only search you or your car if they have reasonable grounds to suspect they will find illegal drugs, weapons or stolen goods OR to preserve evidence. For any other purpose they will need a search warrant.

Police can search a house without a warrant if they believe they will find someone who has committed a serious indictable crime or who has escaped custody. If police come to your house to search, ask to see the warrant.

17 years and Under

In Queensland, 17 year olds are treated as adults by the criminal justice system. See juvenile offences for information relating to offenders under the age of 17 years.

People with a disability

The legal system often has difficulty in dealing with people who have disabilities, particularly where those disabilities involve some form of mental impairment. If a person with a mental illness or intellectual disability has been charged with a crime, specific laws and procedures may be available from the time of the police interview to sentencing. Police are required to have an Independent Third Person present when interviewing a suspect who has a psychiatric or intellectual disability. If you have questions about how someone with a disability has been treated, you should speak to one of our lawyers.

Making a complaint about police behaviour

Ask one of our lawyers to help you if you want to make a complaint against the police. Write down everything that happened as soon as possible, including the names of police, the time and date. If you have been hurt see a doctor as soon as possible and make sure you take photographs of your injuries.

If you have any questions or would like to speak with one of our solicitors, please contact us.

Including Cryptocurrency in Your Will or Estate Plan

Cryptocurrency has emerged as a disruptive force in the financial world, offering a new frontier for investment and wealth accumulation. As both businesses and private interests increasingly diversify their portfolios with digital assets, it becomes crucial to consider the incorporation of cryptocurrency into estate planning. This article explores the complexities and considerations surrounding this innovative asset class, addressing what cryptocurrency is, the challenges in estate planning, storage and accessibility, as well as tax implications.

What is Cryptocurrency?

Cryptocurrency is a digital (or virtual) form of currency. It relies on cryptographic techniques to secure transactions and control the creation of new units. The most well-known cryptocurrency is Bitcoin, but there are thousands of other digital currencies with distinct features and purposes.

Unlike traditional currencies issued by governments and central banks, cryptocurrencies are decentralised, operating on blockchain technology. This means that no single entity, like a central bank, controls the currency, making it both a revolutionary investment opportunity and a unique challenge for estate planning.

Cryptocurrency – Challenges in Estate Planning

While once a novelty, in recent years it has become more common for deceased estates to include some form of cryptocurrency. Despite this increasing popularity, incorporating this asset class into an estate plan still requires careful consideration and proactive measures due to the number of inherent challenges.

Managing a deceased estate that includes cryptocurrency is more complex than administering an estate with only traditional assets. One of the challenges is that it is more difficult to prove ownership of cryptocurrency than it is traditional asset classes such as cash, shares, and real estate. In fact, identifying the existence and ownership of a cryptocurrency asset is often the greatest challenge for executors of estates involving cryptocurrency.

To help address this challenge, owners of cryptocurrency need to maintain detailed records of their holdings, wallet addresses, and private keys. Of course, this must be done in such a way that the information is kept secure during a person’s lifetime but can be easily accessed after their death. Ideally, legal documentation, such as a will or trust, should explicitly describe the nature of all cryptocurrency holdings to ensure that these invisible assets are not overlooked during the management of the deceased estate.

As part of your estate planning, you should also explain any process you have put in place for backup and recovery of cryptocurrency accounts. If something happens to you, your executor should be able to retrieve the assets without obstacle.

To help reduce complexity, your estate plan can also include information about how valuation of the cryptocurrency asset will be carried out to ensure equitable distribution among beneficiaries.

Cryptocurrency Storage

Estate planning with cryptocurrency necessitates the establishment of secure storage solutions and clear instructions for executors. Many cryptocurrency investors use offline hardware wallets to store their assets securely. If you choose this approach, you should ensure that your executor knows the location of your hardware wallet, its PIN, and recovery seed.

Other investors prefer offline paper wallets for added security – old school paper based records containing details of cryptocurrency storage and transactions. If that is your preference, you should instruct your executor on how to access and use these paper wallets.

For online wallets or exchange accounts, your estate documents should include clear guidance on how to access these assets, including login credentials, two-factor authentication details, and any other necessary information.

Tax Implications

Cryptocurrency’s tax implications are complex and can significantly impact your estate plan. Given the evolving nature of cryptocurrency regulations, we recommend consulting with tax experts and legal professionals who specialise in cryptocurrency to ensure compliance with tax laws.

Broadly speaking, in Australia cryptocurrency transactions are subject to capital gains tax, and beneficiaries who inherit cryptocurrency may incur tax liabilities when they eventually dispose of the assets. To help minimise these liabilities, adequate guidance on tax planning should be sought as part of the estate planning process.

Conclusion

If you own cryptocurrency, it is important to think about how to incorporate this asset into your estate planning. Cryptocurrency’s decentralised nature and its potential for growth make it a valuable asset class, but it also introduces unique challenges in estate planning.

To address these challenges effectively, it is imperative to educate your chosen executor on cryptocurrency, establish secure storage and accessibility procedures, and understand the tax implications associated with digital assets. Seeking guidance from experts in the field, including financial advisors, cryptocurrency tax specialists, and legal professionals, is key to creating a robust estate plan that accommodates this revolutionary asset class.

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 Mediation Can Help Resolve Your Family Law Matter

Mediation is a valuable and widely utilised method for resolving legal matters. This alternative form of dispute resolution is particularly valuable when it is desirable to maintain a relationship with the other party after the dispute, as is often the case in family law matters. Mediation offers a collaborative and less adversarial approach to addressing family law issues related to separation, divorce, parenting, property division, and more. This article explores how mediation works, when it can be used, the benefits it offers, what to do when it does not work or may not be appropriate, and how to prepare for family law mediation.

How Does Mediation Work?

Mediation is a structured process in which an impartial third party, known as a mediator, assists parties in reaching agreements on various legal issues. Typically, there are several different stages of mediation.

The first stage is the initial meeting between the parties and the mediator. The mediator will explain their role in facilitating communication and negotiation and describe the mediation process. The mediator may also use this opportunity to ask each party to outline their understanding of the issues in dispute.

The next stage of the mediation is information sharing. The mediator will prompt the parties to share relevant information, documents, and concerns about the issues. Transparency and open communication are crucial for effective mediation. For this reason, mediation is often undertaken on a “no prejudice” basis, meaning that the parties can freely share information to try and reach a solution, without this information being used against them in any later court action.

After the key information has been shared by both parties, the negotiation stage will begin. The mediator will guide discussions and help the parties to explore possible solutions. Skilled mediators use various techniques to foster communication and encourage compromise. This stage is usually the longest in duration and may take several hours or an entire day to try and reach a solution.

Of course, the final stage of the process – the agreement – does not occur in every case. However, if the parties do manage to reach an agreement on one or more issues, the mediator will assist in documenting the agreement.

Parties who were not represented by a lawyer during the mediation will often seek independent legal advice at this stage to review the agreement before finalising it. Once the agreement is reviewed and accepted, it may be presented to the court for formalisation as a legally enforceable agreement.

When Can Mediation Be Used in a Family Law Matter?

Mediation can be used for a range of family law matters but is mostly used to negotiate parenting and property disputes.  Even if mediation does not result in a complete resolution for these matters, it often helps narrow down the issues in dispute, making court proceedings more focused and efficient.

Mediation is not only useful when there is a conflict, it can also be a good environment for separated co-parents to create parenting plans, make decisions about parenting, and agree on how to parent their children. Even parents with otherwise good co-parenting relationships may find mediation useful when dealing with some issues. For instance, co-parents who struggle to agree on one or two matters where each feel strongly (such as whether or not to raise their child in a particular faith) may benefit from the presence of a neutral third party guiding them to a compromise that works for both.

Separated parties can also use mediation to negotiate the division of assets and liabilities, including the family home, finances, investments, and superannuation. Mediation can be particularly helpful when a property settlement involves complex issues. For instance, if a main asset in the property pool is a family business that must continue to operate to retain its value, dividing this asset may require complex negotiation to enable a fair and equitable outcome. Mediation can also allow discussion of issues such as spousal support, especially when this forms part of a broader agreement about the division of the property pool.

The Benefits of Mediation

Mediation offers numerous benefits. Perhaps most importantly, parties in a mediation have greater control over the outcome compared to other options such as applying to the courts for a decision about their family dispute. This control can give the parties a sense of empowerment and ownership of the solution, as they have actively participated in crafting an agreement that works for their unique situation.

The collaborative nature of mediation can also help to reduce animosity and improve post-separation relationships. This is particularly important for co-parents, who will potentially need to continue to work cooperatively for many years. Because mediation prioritises the best interests of the children and promotes child-focused solutions, it is consistent with the approach of the courts to parenting disputes. Of course, even in family cases where no children are involved, most parties will benefit from participating in a system which is less adversarial and inflammatory than traditional litigation.

Mediation often leads to a quicker resolution compared to lengthy court processes, which can take months or even years. As a result, mediation is generally more cost-effective than litigating in court, as it typically requires fewer legal fees and court-related expenses. Mediation is also more flexible than litigation, as it allows the parties to decide which issues are important and need to be explored.

Finally, as mediation sessions are confidential, they generally foster open and honest communication between parties. For some parties, the confidential nature of this process is of the utmost importance, as the issues included in a court case are a matter of public record.

When Mediation Doesn’t Work or May Not Be Appropriate

While mediation is effective in many family law cases, it may not always be appropriate or successful in every situation. For instance, if there is a significant power imbalance between the parties, mediation may not provide a fair forum for negotiation. In particular, mediation is often not safe in situations involving domestic violence, intimidation, or threats. Similarly, in cases where urgent decisions are needed, such as child safety concerns, immediate court action may be necessary. In such cases, seeking legal protection should be the priority.

In addition, mediation requires both parties to be committed to the process and willing to compromise. If one or both parties are unwilling to negotiate in good faith, mediation may not be productive. Finally, in some highly complex financial or legal matters, mediation may not be the most suitable vehicle for resolution. Such cases may require the expertise of a family lawyer and, potentially, court intervention.

Preparing for Your Family Law Mediation

It is advisable for all parties to seek legal advice prior to mediation. Even in cases when lawyers will not be at the mediation, it is still wise for each party to consult with a family lawyer before mediation to understand their rights, responsibilities, and the potential legal outcomes.

Both parties should ensure that they collect all relevant documents, financial records, and information about the issues to be discussed. A solution is much more likely to be reached on the day if exact figures and facts can be provided.

There is also emotional and mental preparation required prior to a mediation. A successful mediation is more likely when the parties have prepared emotionally for the process, understanding that mediation may involve difficult discussions and compromises. Each party should identify their goals and priorities for mediation, including what outcomes they hope to achieve (the “best case” scenario) and the outcome that they can accept (the “worst case” scenario).

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.