Archive for the ‘Newsletters’ Category

Avoid nasty taxation surprises in family law settlements

There are significant differences in the tax consequences of certain family law related actions particularly when negotiating property settlement outcomes – the cutting of the cake!

Unique opportunities in the family law environment can enable a couple to lawfully restructure wealth while avoiding, or minimising, the hefty tax and revenue consequences. Conversely, concluding a family law property settlement only to discover adverse and unintended tax consequences is the last thing anyone wants.

Naturally this area is very complex and each person needs to seek their own advice to ascertain their own tax implications from an experienced family law expert.

 Different ways a couple can reach a property settlement

 Separated couples do have choices when it comes to resolving the division of their property. There are a number of ways in which a separating couple can adjust their property interests, most commonly these include:

  • Implementing transfers amongst themselves;
  • By a Court Order (either by consent or after a Defended Hearing);
  • By way of Financial Agreement under the Family Law Act.

This article examines the tax consequences for the different types of assets that are often held. We highlight some beneficial restructuring opportunities that are unique to family law property settlements and, if used with care, can allow spouses to maximise their property settlement outcomes.

There are two main revenue taxes Stamp Duty and Capital Gains Tax:

 Stamp Duty

The Family Law Act contains an exemption from duty payments on transactions which adhere to a Family Court Order or certain financial agreements.

In some cases, if the terms of the order or agreement clearly provide for it, property can also be transferred from a spouse to a company (trustee of a trust), or vice versa.

Rulings as to transactions under Family Law Act Orders and specified financial agreements are usually available from state-based Stamp Duties Authorities as they can be subject to discretionary decisions.

Capital Gains Tax (CGT)

In lengthy marriages it is not uncommon for the property pool to comprise investments acquired many years prior with significant unrealised capital gains. Fear can surround the selling down of these assets to create cash sufficient to implement a property settlement, given the tax liability which will be triggered on the disposal and which will immediately erode the asset pool.

However, if orders are made or a financial agreement reached in accordance with the Family Law Act, the triggering of such CGT liability is automatically deferred as roll-over relief under the matrimonial exemptions of the Income Tax Assessment Act 1997.

This means that the title to the asset passes from one party to the other on the basis that the unrealised gain is deferred until the spouse receiving the asset disposes of it at some future point. The receiving spouse is deemed to have acquired the asset when the transferor did, the extent of any gain being calculated based on the transferor’s cost base at the time of the transfer to the receiving spouse, plus incidental costs.

Roll-over relief also ensures that a pre-CGT asset can be transferred to a spouse while preserving its pre-CGT status.

This relief can potentially be used to address ‘sleeping giant’ tax issues by moving an asset from one spouse to the other (so as to access concessional rates of tax or capital losses available to one spouse but not the other) before a disposal occurs, so that the optimum tax outcome can be achieved in respect of any capital gains.

 A short summary of tax consequences for different types of assets is set out below:

 Real estate

The most common form of real estate is the matrimonial home which is often held in the joint names of the separating couple. Generally, a settlement which involves the transfer of the matrimonial home from one person to the other will not be affected by Capital Gains Tax. This is because the Capital Gains Tax legislation contains a main residence exemption.

Investment properties

Families often have investment properties which are held in the name of one or both of the parties, or in the name of a corporate entity as Trustee for a Family Discretionary Trust.

If the property was acquired after 20 September 1985, a transfer of the property will generally trigger a Capital Gains Tax liability. This means that the difference between the cost of the property and the sale price (or half the difference if the property has been held for more than 12 months), will be added to the income of the person selling and taxed at the marginal income tax rate.

An investment property owned by one spouse can be transferred to another spouse by way of property settlement, with a stamp duty exemption.

Family Trusts

Where a Trustee of a Family Trust holds real estate this can, in some instances, be transferred to a spouse beneficiary through a Court Order or Financial Agreement. This may attract a ‘rollover relief’ which will postpone the payment of Capital Gains Tax.

 Shareholdings

Transfers of shares between spouses and de facto couples are generally subject to Capital Gains Tax unless the transfers are by way of a Court Order or a Financial Agreement which then enables it to attract “rollover relief”.

Motor vehicles

Transfers of motor vehicles are generally not subject to Capital Gains Tax.

Businesses

A transfer of a business or a company structure operating a business or the closure or sale of a business, may have significant taxation consequences.

Specialist advice must be provided in order to ensure that any settlement is undertaken in the most tax effective manner.

 Conclusion

As you can imagine the tax implications that can arise through divorce are almost boundless.  For those who take advice from their specialist lawyers and accountants early in their property settlement, there is potential for some restructuring benefits.

Having a legal expert thinking creatively in terms of options and taking into account the nature and characteristics of the property pool, there is potential to move assets into a position where there are reduced revenue consequences and with deferred and potentially minimised tax consequences.

The law here is very complex and if you know someone who might need assistance feel free to get them to call us on 07 3281 6644 or email mail@powerlegal.com.au.

Your Personal Injury Claim – 7 Common Mistakes

Suffering an injury is a distressing experience, and pursuing a personal injury claim through the courts can be an important step towards seeking compensation for your losses. There are different laws about personal injury claims across Australia, and the processes vary depending on whether your injury happened at work, in a public place, while driving, or as the result of crime. However, regardless of the cause of your personal injury, it is crucial to be aware of the common mistakes that can undermine your claim and potentially reduce the chances of a successful outcome.

In this article, we will highlight several key mistakes to avoid when pursuing a personal injury claim. This information is general only and we recommend obtaining legal advice from an experienced personal injury lawyer.

Mistake 1: Not Notifying the Relevant People

One of the critical mistakes people make after an injury is failing to notify the relevant individuals or authorities. Depending on the circumstances, this may involve notifying your employer, the police for motor vehicle accidents, or healthcare providers

Failure to report an incident promptly can weaken your claim and create challenges when establishing liability or proving the severity of your injuries. It is crucial to report the incident to the appropriate parties as soon as possible to ensure a clear and documented record of the incident.

Mistake 2: Not Keeping Good Records

Proper record-keeping is essential for building a strong personal injury claim. Failing to keep detailed records of important information can harm your case. Maintain a record of dates, times, and locations related to the incident, as well as a chronology of events leading up to and following the injury.

It is also important to gather contact information of any witnesses present during the incident. You should also keep copies of medical records, bills, and any correspondence related to the injury. These records will help substantiate your claim and provide crucial evidence.

Mistake 3: Not Following Doctor’s Advice

Consistency in attending medical appointments and following your doctor’s advice is essential for both your recovery and your personal injury claim. Failing to seek medical attention promptly or missing scheduled appointments can raise doubts about the severity of your injuries or your commitment to recovery.

Insurance companies and other defendants may use this against you to undermine your claim. It is important to prioritise your health and follow through with medical recommendations to support the legitimacy of your claim.

Mistake 4: Posting on Social Media

In today’s digital age, social media can have a significant impact on personal injury claims. Posts that contradict any aspect of your claim can be detrimental to your case. For instance, if your injury causes debilitation but your posts imply that you are leading an active lifestyle this can be raised as evidence in court.

It is wise to be cautious with your social media presence during the claims process. Insurance companies and defence lawyers often scrutinise claimants’ social media profiles for evidence that can be used against them. It is a good general rule for you to avoid discussing your case or posting photos or videos that could be misinterpreted.

Mistake 5: Not Getting Legal Advice

Attempting to handle your personal injury compensation claim without legal guidance is a common mistake. Personal injury law is complex, and insurance companies have teams of experienced adjusters and lawyers working to protect their interests.

Without legal representation, you may not fully understand your rights, the value of your claim, or the negotiation strategies employed by the opposing party. Engaging a skilled personal injury lawyer ensures that your interests are protected and increases your chances of receiving fair compensation.

Mistake 6: Not Reporting Psychological Symptoms

Physical injuries can have both short-term and long-term psychological effects including depression, anxiety and post-traumatic stress disorder (PTSD). In turn, poor mental health can negatively impact on recovery rates of the physical injury or illness and may impact your ability to work and participate in life. As such, your psychological symptoms are important to your personal injury claim. You should report to your doctor and your lawyer if you are experiencing psychological impacts such as anxiety, memory issues or nightmares following your injury.

Mistake 7: Delaying Too Long

Timing is crucial when pursuing a personal injury claim. There are specific time limitations known as the statute of limitations that dictate how long you have to file a claim. Waiting too long to take legal action can result in your claim being time-barred and potentially losing the opportunity to seek compensation. It is essential to consult with a personal injury lawyer as soon as possible after the incident to understand the applicable time limits and ensure your claim is filed within the required timeframe.

Conclusion

You can be injured or suffer loss in almost any area of life whether that is at work, in a motor vehicle accident, in a public place or while receiving medical treatment. Depending upon where the injury occurred, whether or not you were at fault, and your degree of injury, you may be eligible to make a personal injury claim.

No matter what type of claim you are making, it is important to protect your rights and avoid making mistakes that might jeopardise your chances of obtaining the maximum compensation to which you are entitled. 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.

Deceased Estates What Happens When Executors Don’t Agree

When someone dies, their assets are usually distributed according to their will. The person responsible for managing and distributing these assets is the “executor” of the deceased estate. In some cases, a will appoints more than one person to act as executor, and these individuals normally need to work cooperatively to execute the duties of the role.

As with any complex and potentially emotional task, the administration of a deceased estate can give rise to conflict and disagreements. This is particularly true when executors are also beneficiaries of the estate, and their administrative decisions impact on their inheritance under the will.

Common causes of disputes between executors

Of course, disputes between executors can arise for any number of reasons, including simple personality clashes. However, there are some scenarios that arise commonly. These include:

Disputes over the meaning of the will

Disputes can arise if the executors disagree over the interpretation or validity of the deceased’s will. Some common issues that may arise include:

  • If the will is unclear or ambiguous, the executors may have different interpretations of the deceased’s intentions.
  • If one executor believes that the will is invalid and the other does not, they may challenge it in court.
  • If the will does not specify how the assets should be distributed, the executors may disagree on how to divide them.

Disagreements over the management of the estate

In some cases, executors may disagree over how to manage the estate during the administration period. For instance:

  • One executor may believe that assets should be sold to generate funds for the estate, while the other executor might disagree.
  • Executors may have different opinions about whether certain debts should be paid off before assets of the estate are distributed.
  • One executor may wish to hire a professional (such as a lawyer or accountant) to assist with the estate, while the other executor does not wish to incur the expense.

Disagreements over the distribution of assets

In some cases, executors can disagree over how to distribute the assets of the estate. This may happen because:

  • Executors have different views about the worth of particular assets.
  • One executor believes that a particular asset should go to a certain beneficiary, while the other executor disagrees.

How to avoid disputes

It is far better to avoid a dispute in the first place, rather than try and resolve a dispute after it has become entrenched. Here are some tips for executors to help prevent a dispute:

Act impartially

As an executor, you have a duty to act impartially and in the best interests of the estate. You should avoid any conflicts of interest and make decisions that are fair and reasonable. By acting impartially, you can help build trust with the other executors and work towards a resolution of the dispute.

Keep communicating

Disputes can arise because one executor has different expectations about how communications should occur during the administration. In some cases, executors may simply not communicate effectively, which can lead to conflict. This might look like one executor making a decision without consulting the other, or making a decision without full transparency.

Keep accurate records

 Keeping accurate records of all estate transactions can help prevent misunderstandings and disputes. You should keep a record of all communications, decisions, and financial transactions, and make sure that all executors have access to these records. This can help ensure that everyone is on the same page and can prevent disputes from arising in the future.

Managing a dispute

 Once a dispute arises between executors it can be challenging and stressful to continue the estate administration. However, there are steps you can take to try to resolve the dispute and move forward with the estate administration:

Identify the source of the disagreement

The first step in managing a dispute between executors is to identify the source of the disagreement. By understanding the underlying cause of the dispute, you can begin to work towards a resolution.

Seek legal advice

A lawyer with experience in estate administration can provide guidance on managing disputes between executors. In many cases, both parties are happy to follow the decision of a neutral third party.

Consider mediation

Mediation can be a useful tool for resolving disputes between executors. Mediation involves a neutral third party working with both sides to reach a mutually acceptable solution. Mediation can be a less confrontational and more cost-effective alternative to going to court, and can help ensure that all parties’ interests are considered.

Consider removing an executor

If one executor is causing significant problems and cannot be reasoned with, it may be necessary to remove them from the estate administration. In some cases, it is possible to remove an executor through a court order. However, removing an executor should only be considered as a last resort, as it can lead to further disputes and delays in the estate administration.

Conclusion

As with any complex and potentially emotional task, the administration of a deceased estate can give rise to conflict and disagreements. A lawyer can help you understand your rights and obligations as an executor and can represent you in court if necessary.

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.

Is a testamentary trust right for you?

One of the most loving things that you can do for your family is make plans for what happens after you die. This is particularly important if you have children or vulnerable adults who depend on you financially. A testamentary trust might be the right tool to help you look after those you love.

What is a testamentary trust?

As the name suggests, a testamentary trust is made under a will and begins at the death of the testator (the will-maker). This tool allows you to financially support someone without giving that person direct control of the assets.

How is a testamentary trust made?

Your solicitor can draft your trust. Before speaking to your solicitor, you should think about what you want to include in the trust (the assets or capital), who you want to benefit from the trust (the beneficiaries), and who you can rely upon to carry out your wishes (the trustee or trustees).

A common arrangement for parents of young children is to incorporate all assets (including property and superannuation) into a trust for the benefit of their children. In that scenario the trustees might also be nominated as the guardians of the children.

Who should you choose as a trustee?

The trustee is the legal owner of the assets of the trust, so the most important thing is to ensure that the trustee is reliable and honest. Having more than one trustee can be good insurance against fraud or carelessness.

In some cases, the size or contents of an estate may justify an expert trustee. A trustee can be a professional (such as an accountant or lawyer) or an organisation (such as the NSW Trustee and Guardian). However, a professional trustee does need to be paid out of the estate.

What are the advantages of a testamentary trust?

A testamentary trust allows a will maker to control the distribution of their assets for up to 80 years. This lets you look after your children, grandchildren, and even great-grandchildren! There are many advantages to this type of arrangement.

Protection

A testamentary trust can be very prescriptive. You can set out exactly how your money should be divided between the beneficiaries, when the money is given out, and even what it can be spent on. This can prevent the capital from being frittered away by beneficiaries with mental health conditions or addictions.

Because the trustee legally owns the assets of a trust, the funds are generally protected from outside claims against the beneficiaries. For instance, the trust is usually not vulnerable during family law litigation (ie the capital in the trust is unlikely to be split in a divorce). Similarly, the capital is generally insulated from bankruptcy, as well as personal injury and professional negligence claims.

Flexibility

You can choose to make your testamentary trust discretionary. In that case, the trustee has some freedom in distributing the income and capital of the trust. For instance, your trustee may distribute the trust based on the different needs of each child through the years. This allows the trust to evolve over time as circumstances change.

Minimise Tax and Capital Gains

There are tax benefits from testamentary trusts, which you should discuss with your solicitor and accountant. In short, trustees may be able to distribute from a discretionary trust in tax-effective ways, including taking advantage of five-year averaging for capital gains losses. In addition, under a testamentary trust, minor children receive beneficiary tax rates for income from the trust.

Are there any disadvantages to a testamentary trust?

As with all forms of estate planning, a testamentary trust is not right for everyone.

The administration of a trust costs money each year that the trust operates. This will include annual tax and auditing costs and could also include the trustee’s professional fees. For this reason, a discretionary trust is not usually the best option for smaller estates.

A testamentary trust can be challenged by those who wish to receive immediate access to their inheritance. Regardless of whether the claim is successful, the process will cost the estate additional legal fees and may cause family conflict. A testamentary trust always involves a degree of ongoing interaction between the trustee/s and the beneficiary/ies. As with any family dynamic, this can be a source of tension and conflict.

Finally, income from a trust is used when calculating income for Centrelink income support benefits (although currently the assets of a trust are not used to determine eligibility under the asset test).

Conclusion

There are many benefits to using a testamentary trust to protect your loved ones. This form of estate planning allows you to protect your estate against outside claims and ensure that your wealth is used to benefit those you love. There are some disadvantages to choosing a testamentary trust, so it is important to speak to your solicitor and accountant before deciding whether this option is right for you.

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

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

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

Code of Practice to Manage Psychosocial Hazards in the Workplace – Queensland

Employers are responsible for creating safe working conditions for their employees. Most employers are familiar with the need to ensure that their working conditions do not expose their workers to unreasonable physical risk, but employers may be less familiar with the need to reduce psychosocial hazards.

Proactive Duty for Employers to Manage Psychosocial Hazards

From April 2023, employers in Queensland have a positive duty to do what is reasonable to prevent or reduce risk of psychological injury to their workers. This means that it is not enough for an employer to do nothing wrong: rather, an employer in Queensland must take active steps to help to reduce psychosocial risks and hazards. This is an increased duty of care compared to what has existed in the past.

An employer must eliminate psychosocial risks where this is reasonably practicable. If it is not reasonably practicable to eliminate such a risk, an employer must take steps to minimise any psychosocial risk as far as reasonably practicable.

Most employers in Queensland will need to take some steps in addition to their current arrangements to meet this new obligation. The officers of a company must exercise due diligence to ensure that these obligations are discharged. These duties cannot simply be transferred or delegated to another person.

The Code of Practice

The Queensland Government has issued a code of practice to help employers to understand their duty of care in relation to psychosocial hazards. In most cases, following this code will ensure that they are compliant with the safety duties in the WHS Act in relation to psychosocial hazards. Employers should become familiar with the code of practice and seek expert guidance on applying the guidelines in practice.

The code of practice provides guidance to employers on how to identify, assess, and control psychosocial hazards in the workplace. The code can also help workers to identify potential risks in their workplace and provide them with the knowledge and tools to raise concerns with their employer.

What are Psychosocial Hazards?

A psychosocial hazard is any situation in a workplace which may cause psychological harm to a worker. Issues such as workplace stress, bullying and harassment, for example, can affect an employee’s mental health and wellbeing. In extreme circumstances, exposure to psychosocial hazards may lead to suicide.

Psychosocial hazards can be caused by the nature of the work itself. They can also be created by how the work is managed, the environment, or interactions and behaviours with others. Common psychosocial hazards include:

  • high or low job demands
  • low job control
  • poor support
  • low role clarity
  • poor change management
  • low reward and recognition
  • poor organisational justice
  • poor workplace relationships
  • remote or isolated work
  • poor environmental conditions
  • traumatic events
  • violence and aggression
  • bullying and harassment

It is important to note that an employer’s duty includes protecting workers from acts by third parties. For instance, an employer must take steps to protect workers in a hospital from hazards created by patients, and workers in a school from hazards created by students.

Reasonably Practicable

An employer must do what is “reasonably practicable” to ensure the health and safety of their employees. It is important to know that what is reasonably practicable is measured objectively (that is, by what a reasonable person would do).

In determining what is reasonably practicable, consideration can be given to:

  • the likelihood of the hazard arising
  • what the employer knew, or ought to have known, about the hazard
  • the degree of harm that might result from the hazard
  • the availability of ways to eliminate or minimise the hazard
  • the cost of steps that would eliminate or minimise the hazard

An employer should consider all of these matters when determining what they can do to provide the highest level of protection for their workers in all of the circumstances. A business cannot expose workers to a lower level of protection simply because it has fewer financial resources compared to another business facing the same hazard.

Consulting with Workers

As far as practical, employers must consult with workers directly affected about ways to reduce psychosocial hazards in the workplace. Consultation is aimed at improving decision-making processes regarding health and safety, and reducing work-related injuries and illness. For instance, workers may have practical suggestions or potential solutions to address hazards they encounter in their daily work.

In relation to the requirement for consultation, the term “workers” includes anyone carrying out work in any capacity for the business or undertaking, including contractors and their employees, labour hire workers, outworkers, apprentices, trainees, work experience students and volunteers.

Duty of Workers

Not all of the liability for reducing psychosocial hazards rests with employers. Workers must take reasonable care for their own psychological health while in the workplace. In addition, workers must take reasonable care that they do not adversely affect the health and safety of other persons in the workplace. Amongst other things, this involves complying, as far as they reasonably can, with reasonable instructions given by their employers or supervisors and health and safety policies or procedures.

Taking care of their own health can involve a worker refusing to undertake certain tasks. If a worker has a reasonable concern that carrying out the work would expose them to a serious risk to their health or safety, they can cease performing the work or refuse to perform the work in the first place. In that situation, they must notify their employer and carry out suitable alternative work until it is safe for them to resume normal duties.

Conclusion

The code of practice aims to help employers and workers understand what psychosocial hazards are, the risks associated with these hazards, and to provide practical steps to eliminate or minimise these risks.

This information is for general purposes 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.

What’s the difference between Parenting Plans and Parenting Orders?

A parenting plan is an informal written parenting agreement that includes parenting and care arrangements for children but has not been formally approved by the Federal Circuit and Family Court of Australia (FCFCA). Parenting orders (or consent orders) are written parenting agreements that have been approved by the FCFCA through an application made to the court. Parenting orders may also be made by the court after a hearing.

The pros and cons for both parenting plans and parenting orders are discussed below.

Parenting Plans

Sometimes former partners are able to reach an amicable agreement about arrangements for their children without the need to commence court proceedings. This agreement is usually referred to as a parenting plan. Provided the parenting plan clearly sets out the rights and obligations of each parent (or any other relevant person), is signed and dated by each person involved, it should generally be deemed as a sufficient parenting agreement.

A parenting plan can address issues such as:

  • who a child spends time and lives with;
  • the parental responsibility for a child;
  • arrangements for special days such as birthdays, religious, and other holidays;
  • procedures for making long-term decisions regarding the care, welfare, and development of the child.

As parenting plans are not legally binding, it is advisable to include procedures for varying the plan and the methods that can be used to resolve any disputes about the terms in the actual plan.

As noted, a parenting plan is not binding and accordingly cannot be enforced by the court. If you would like your parenting plan to be legally binding, you can file an Application for Parenting Orders with the FCFCA. It is usually recommended you do this – although you may have an amicable relationship with your ex-partner, circumstances can change quickly (such as your ex-partner entering into a new relationship) which can affect your parenting plan. Applying for your parenting plan to be made into a parenting order is usually a straightforward process which involves submitting your plan to the court for approval by the Registrar. Once the Registrar is satisfied that the plan is in the child’s best interests, court orders reflecting your parenting plan will be granted.

Parenting Orders

A parenting order is a written agreement that has been approved by the FCFCA through an application made to the court. The order covers parenting arrangements for children.

The FCFCA must be satisfied that the orders sought are in the best interests of a child before they are approved. Once the parenting orders have been approved by the court, they have the same legal standing as if they had been made by a court after a hearing.

If any party included in the parenting order breaches its terms, other parties stated in the orders are entitled to make a Contravention Application with respect to that breach, and the party in breach can be sanctioned by the FCFCA.

What happens if a party breaches a Parenting Order?

If you believe that one of the parties included in your parenting orders has breached a term of the order, you should complete and file an Application for Contravention alleging the party has breached the orders.

The FCFCA will consider the allegations and facts of the Contravention Application and may do the following:

  • find there was no contravention;
  • find the contravention was established but there was a reasonable excuse for the party breaching the parenting order;
  • determine there was a less serious contravention without a reasonable excuse;
  • determine there was a more serious contravention without a reasonable excuse.

If is important that you seek legal advice before filing an Application for Contravention as the court may require you to pay all or some of the costs of the other party if it finds there have been no contravention of the orders. This may also apply if the contravention was established but with a reasonable excuse.

The court also has the power to vary parenting orders but will only do this sparingly.

Consequences of breaching a parenting order without reasonable excuse

If the court finds a party included in a parenting order is in breach of the order without having a reasonable excuse, the court may take the following actions:

  • order that the person in breach attend a post-separation parenting program;
  • make a further order to compensate for any time lost with the child;
  • make an order for the person in breach to enter into a bond, possibly with conditions such as requiring the person to attend family counselling;
  • order that the person who committed the breach pay all or some of the costs of the person who filed the contravention proceedings, fine the person in breach; or sentence the person in breach of the order to a term of imprisonment, depending on the seriousness of the breach.

Conclusion

Parenting orders and parenting plans both have their pros and cons. Although parenting plans are convenient and generally cheaper to draft than parenting orders, they are not legally enforceable by a court. This is why it is often recommended that an application be made to the court for parenting plans to adopt the status of parenting orders. This way, all parties to the parenting order will have legal protection if needed.

This article provides general information only and you should obtain professional advice relevant to your circumstances. We always recommend you seek legal advice from an experienced lawyer before entering into any parenting agreement.

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.

Will Contests and Estate Disputes – an Overview

In Australia, there are legal avenues available to individuals who wish to contest a will or challenge the distribution of an estate. Although regrettable, such disputes are often unavoidable and sometimes essential to ensure fair outcomes. Understanding these legal processes and the reasons estate disputes arise can help individuals navigate these challenging situations.

Validity Challenges 

One avenue for disputing a will is to challenge its validity. This can occur if there are concerns about the mental capacity of the deceased at the time of making the will. A challenge based on testamentary capacity questions the deceased’s mental competence to understand the nature and consequences of making a will at the time of its creation.

A will may also be contested if there is evidence of undue influence or pressure on the deceased to change the terms of the will, or simply a failure to comply with the required legal formalities during the will-making process.

Family Provision Claims

In every Australian state and territory, claims can be made by eligible individuals who believe they have not been adequately provided for in the will of a deceased person. These claims seek a court order for a larger share of the estate.

The rules about who is eligible to make such a claim vary across jurisdictions. Generally speaking, however, close family members (spouses and biological or adopted children) are always eligible to make a claim for a greater share of an estate. Other family members, such as stepchildren or former spouses, may also be eligible to make a claim in some jurisdictions.

Family provision claims are usually successful if a close family member has been disinherited and can demonstrate financial need. Such claims are often resolved privately between executors and claimants without involving a court hearing.

Reasons Estate Disputes Arise

Perhaps the most significant reason that estate disputes arise is that there was an existing negative family dynamic. When a loved one passes away, the emotional burden of the loss can complicate already difficult or strained relationships. Disagreements and conflicts between family members, especially in blended families or when there is an estranged relationship, can lead to challenges and disputes over the deceased’s intentions. Family provision claims most often arise when individuals believe that the distribution of assets was fundamentally unfair.

Another reason that estate disputes commonly arise is that the will of the deceased was out-of-date when they died. If a will is not regularly updated to reflect changes in circumstances, such as marriages, divorces, or new family members, it can create confusion and disputes regarding the deceased’s wishes. Similarly, vague or ambiguous terms in a will can often cause disagreements among beneficiaries.

Disputes can also arise if an executor or trustee fails to carry out their duties properly, including mismanagement of the estate, conflicts of interest, or allegations of misconduct.

Minimising Potential Estate Disputes

There are a number of steps that you can take to reduce the chance that your estate will become the subject of a dispute. The first step is to engage the services of a qualified and experienced estate planning lawyer when drafting a will. This will ensure that the will is not only properly drafted, taking into account legal requirements, but that you are prompted to think about potential sources of conflict.

It can also be helpful to establish open and clear communication with family members about the intentions and contents of the will. Discussing decisions in advance can provide an opportunity to flag and address concerns and potential conflicts. Such communication can help manage expectations and reduce the likelihood of disputes.

When drafting a will, it is important to use clear and specific language to avoid ambiguity and confusion. Clearly articulating the intended distribution of assets can help minimise potential disputes.

Regularly reviewing the will and updating it as circumstances change can also help ensure its relevance and accuracy. This includes considering changes in relationships, births, deaths, and significant assets.

In cases of potential disputes, exploring alternative dispute resolution methods, such as mediation or arbitration, can provide a more amicable and cost-effective resolution compared to litigation.

Conclusion

Will disputes and estate challenges can be emotionally and financially draining for all parties involved. Understanding the legal avenues available for disputing a will or estate, the reasons these disputes arise, and implementing strategies to minimise the potential for disputes can help navigate these challenging situations with greater clarity and efficiency. Seeking professional advice and engaging in open communication can contribute to a smoother administration of the estate and reduce the likelihood of prolonged and contentious disputes.

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.

Facing Criminal Charges? What To Expect When Attending Court

Attending court for criminal charges can be a daunting experience. However, understanding what to expect can make the experience less difficult and intimidating.

Types of Courts in Australia

If you are facing criminal charges, you will receive a Court Attendance Notice or other paperwork that informs you of the charges and the date and time of your court appearance. This paperwork will also indicate which court you will need to attend.

There are three main levels of criminal courts in each Australian state/territory, each with its own jurisdiction. The court you will attend depends on the seriousness of the charges:

  1. Magistrates Court/Local Court: This is the lowest level of court and is responsible for hearing minor criminal matters such as traffic offences, minor assault charges, and some property offences.
  2. District/County Court: The intermediate court hears more serious criminal matters, including indictable offences such as burglary, drug offences, and serious assault charges.
  3. Supreme Court: The Supreme Court is the highest state-based court and hears the most serious criminal matters, such as murder trials.

What to expect

Your lawyer will provide you with guidance about what to expect during your hearing, but it can be helpful to have a short summary that you can reference.

When you arrive, you will need to go through security screening, check in with the court registry and locate the correct courtroom. This can take time, so aim to arrive early.

The first part of the hearing involves you entering a plea. If you plead guilty, the matter will proceed to sentencing. If you plead not guilty, the matter will proceed to a trial. Your lawyer will speak on your behalf during the court proceedings. If you do not have a lawyer, you will have to represent yourself and make your own submissions to the judge and jury.

The prosecution will present evidence to support their case. You or your lawyer will have the opportunity to challenge the evidence presented and present evidence in your defence. If there are witnesses in your case, they may be called to give evidence in court. They will be required to take an oath or affirmation to tell the truth.

If you plead guilty or are found guilty at trial, the matter will proceed to sentencing. The judge will take into account the seriousness of the offence, the circumstances surrounding the offence, and your personal circumstances when deciding on the appropriate sentence. If you are unhappy with the outcome of your case, you may be able to appeal the decision. However, there are strict time limits for appealing a decision, so it is important to seek legal advice as soon as possible.

It is important to note that the court process can vary depending on the jurisdiction and the specific details of your case. It is recommended that you seek legal advice to understand the specific court process in your situation.

Courtroom Etiquette

Many defendants feel frustrated and intimidated by the criminal justice system. The formality and rules of the courtroom can feel archaic and out-of-step with modern society. However, it is important to know that your conduct will have an influence on how your case proceeds. Although it is not directly relevant to the prosecution establishing the elements of the crime, if you disrupt the courtroom or fail to comply with courtroom etiquette it makes it more difficult for your lawyer to mount a convincing defence.

Here are some tips to help you navigate courtroom etiquette:

  1. Try to avoid wearing revealing, dirty, torn or offensive clothing.
  2. Switch off your phone before court.
  3. When the judge or magistrate enters the courtroom, stand up. Address the judge or magistrate as “Your Honour”.
  4. Allow the judge or magistrate, lawyers, and other witnesses to speak without interruption. Unless you are specifically asked to speak, do not interrupt or interject.
  5. It is fine to use normal language when you give evidence. There is no need to use legalese. However, it is important to speak clearly and avoid using profanities or insulting language.

Getting legal help

If you are facing criminal charges, it is important to seek legal advice as soon as possible. A lawyer can help you understand the charges and the legal process and can provide you with representation in court. By being prepared and informed, you can ensure that you receive a fair hearing and the best possible outcome in your case.

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.

Buying Property with Someone Else – Considerations for Property Co-owners

Buying a property with someone else is a great way to share the fun, stress, and cost of the venture. Often people buy a house with their significant other, to make a home or invest together. Others buy property with friends, relatives or business partners. Joining forces with someone else can increase your borrowing power, and pooling savings can bring a deposit within reach.

However, there are pitfalls to buying a property with someone else. It is better to think about these issues up front and take steps to ensure that everyone is protected.

Joint Tenants or Tenants in Common?

One of the fundamental questions is how the property will be held. During a purchase, buyers are asked if they want the title to be held as “joint tenants” or “tenants in common”. It is important not to rush this choice. It has a significant effect, and everyone involved needs to be comfortable with the decision.

The most common form of ownership is joint tenancy. This means that both people own the property, and neither can sell their “share” to a third party. If either person dies, the property will automatically belong solely to the surviving owner. In that case, it is not possible for one of the owners to make testamentary arrangements to leave their share to someone else. Joint tenancy is common for couples who own a family home together, but it is not the right choice for every partnership. Some couples, for instance, may wish for their share of a home to benefit their children rather than their spouse, particularly if they have children from a previous relationship.

In contrast, if a property is held as tenants in common, the owners each possess a distinct share in the property. A share can be bequeathed through a will to someone other than the co-owner. This share can also be mortgaged or sold (with or without the consent of the other owner/s).

One of the advantages of tenancy in common is that the shares can be held unequally. Imagine that three siblings decide to buy a property, they can hold the property equally (each having 33%) or, if one person contributed more than the others this additional contribution can be reflected in an unequal holding. If one sibling puts up the whole deposit, it may be fair for them to own 50% of the property, while the siblings who contributed nothing up-front (but who will contribute to the mortgage and ongoing costs) each hold 25%.

It is also possible to have a mix of joint tenants and tenants in common. For instance, if a couple decide to pool their resources with a friend to buy a property, the couple can be joint tenants while the friend is listed as a tenant in common. This means that if one of the couple dies, their partner will receive their share of the property, while the ownership of the friend remains unchanged.

Potential Issues of Buying with Someone Else

Unfortunately, the best laid plans do not always work out. Relationships break down, people die, are sued, and go through bankruptcies. Any of these circumstances can complicate the co-ownership of a property.

Broadly speaking, joint tenancy is the best arrangement for couples who want their partner to own the whole property if either of them die. The change of ownership is automatic and only requires notification to the relevant Titles Office. However, a joint tenancy can be a burden if a relationship breaks down. Neither person can make decisions about the property without the other, so it forces the separated parties to work together to take actions such as selling or renting the home. After separation, it is necessary to deal with the property, whether this involves selling or refinancing it into one person’s name, or even just applying to sever the joint tenancy.

People at risk of bankruptcy or being sued sometimes think that holding property in joint tenancy will protect the asset. This is not correct. A court can order a joint tenancy to be severed, the ownership apportioned equally between the owners, and the share of the property owned by the debtor sold. In fact, a tenancy in common may offer greater protection in such scenarios, because the debtor may own less than 50% of the property.

Benefits of a Co-Ownership Agreement

Whether a property is owned as joint tenants or tenants in common, it can be very useful to have the additional insurance of a co-ownership agreement. This agreement is essentially just a contract used by people who buy property together.

A co-ownership agreement sets out each owner’s rights and obligations and should also include provision for what will happen if an owner wishes to sell or mortgage the property. A well-drafted co-ownership agreement can help avoid disputes in the first place or help guide the parties to resolve any dispute that does occur.

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.