Archive for the ‘Newsletters’ Category

Subpoenas and family law court proceedings

Subpoenas play a very important role in discovering evidence and information in family law matters, especially when the other party is not complying with requests for information.

There is a lot of work involved in applying, filing, and serving a subpoena, which can quickly become a complex exercise. Generally, subpoenas should only be used as a last resort, and we recommend seeking legal advice before applying for a subpoena.

What is a subpoena?

In essence, a subpoena compels a person to produce documents or give evidence. It is a legal document issued by the court at the request of a party to the proceedings. The court does not issue subpoenas unless requested to do so.

An example of when you may wish to request a subpoena in your family law matter, is when the other party refuses to disclose their financial documents, such as bank account statements. Once issued, the subpoena can be served to the other party’s bank, requiring them to produce the other party’s bank statements directly to the court.

Generally, you should take all reasonable steps possible to extract information you need from the other party before applying for a subpoena.

Types of different subpoenas in family law

  1. A subpoena for production. This is where a party is ordered to produce documents by the court, such as bank accounts, superannuation details or any other thing described in the subpoena, by a specific date and time. The court will specify when the documents or things are to be provided.

 

Subpoenas must specifically state the type of document sought otherwise the other party may dispute the validity of the subpoena. It is vital the subpoena is served on the person it is intended for by ordinary service, at least ten days before the date they are required to produce the material.

 

  1. A subpoena to give evidence. This is an order for someone to attend court to give evidence. A party that has been subpoenaed to give evidence must attend court on a date and time specified, unless excused by the court. It is important that the subpoena is served on the named person by hand at least seven daysbefore they are required to give evidence.

 

  1. A subpoena for production and to give evidence is a combination of the above two subpoenas. You should not issue a subpoena for both production and to give evidence if producing the documents on their own would be sufficient to obtain the desired information.

If you believe you may need to apply for a subpoena, we recommend you speak to an experienced family lawyer.

Filing a subpoena

The original subpoena must be filed at the Federal Circuit and Family Court of Australia (FCFCA) registry. It is important to file sufficient copies for the subpoena to be served on each party in the proceedings, especially for the person or organisation being asked to produce material.

Filing a subpoena is different to filing other family law documents. You cannot file or upload the document onto the online court portal as with other family law documents. The subpoena must be emailed directly to the relevant Court Registry. We also recommend that a letter in support of the subpoena accompanies the email. If the subpoena is not correctly filed, it may have no legal standing.

What is ’conduct money’?

Conduct money is money that is paid to the named person on the subpoena to help cover their costs in complying with it.

Conduct money must be paid to cover the costs of traveling from a person’s home to court if they have been served with a subpoena to give evidence. They must also be provided with a reasonable allowance to cover accommodation and meals during the period of attendance at court.

Conduct money must be paid to cover costs of identifying, photocopying, and collating material when a subpoena requires a person to produce information. To help speed up the completion of the subpoena, you can provide a cheque for the conduct money together with the subpoena when you serve it on the named person.

What happens once a subpoena is served?

If a subpoena is filed and served in accordance with the rules, and conduct money is paid, the named person must comply with the subpoena. However, the named person may object to producing a document if they consider the document requested is too broad, is irrelevant, or covered by privilege. If you have been served with a subpoena and you believe that these circumstances apply to your situation, we recommend you obtain legal advice.

Once all the material has been produced in response to the subpoena, you may file a Notice of Request to Inspect the material. When leave is granted to inspect, each party may make an appointment to view the material.

You are allowed to issue a maximum of five subpoenas. If you would like to issue more than five, you must seek leave from the court.

Conclusion

Preparing, applying, filing, and serving a subpoena can be a complex process. A subpoena must be the correct type and suitable for your circumstances. Subpoenas should only be used when you have exhausted all other avenues to obtain information from the other party to your family law matter.

This information is for general purposes only. We recommend seeking legal advice before applying for a subpoena to ensure the subpoena is prepared and served correctly the first time.

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

When is a guarantee unenforceable?

A guarantee is a binding promise of one person (the guarantor), to be answerable for the debt or obligation of another (the debtor), if that other defaults. Guarantees become enforceable by the person to whom the guarantee has been given (the creditor) when debtors have defaulted on their obligations.

In this article, we consider the circumstances where a guarantee may be unenforceable.

Formal requirements

A guarantee is a contract and will not generally be enforceable unless all the formalities of contract formation have been satisfied. As such, like all other contracts, a contract of guarantee must be supported by consideration passing from the creditor to the guarantor, unless the contract takes the form of a deed.

Typically, a guarantee is given in consideration for the creditor agreeing to enter into some type of agreement with the debtor at the request of the guarantor. Accordingly, a guarantee should proceed the provision of credit otherwise a guarantor can argue that it received nothing in exchange for giving the guarantee and the document will not be binding.

In addition to the above:

  • in states where the Statute of Frauds continues to apply, guarantees are required to be in writing; and
  • if obligations of co-guarantors are joint and several, there is authority that a guarantee is not binding unless each guarantor named in the document executes it.

Enforcement of guarantees

Even if a guarantee has been created in a manner which the law of contract considers to be binding, other laws are available to guarantors to avoid the obligation the guarantor has agreed to take on in the guarantee. These laws, which are discussed below, are found in legislation as well as the common law.

Misleading or deceptive conduct

Like any other contract, a guarantee can be set aside on the grounds that a party has entered into it acting on the misleading and deceptive conduct of the creditor or debtor.

Non-Disclosure

Creditors have a limited general duty of disclosure to a guarantor. Guarantees have been set aside on the basis of a failure by the creditor to disclose unusual information. Furthermore, if a guarantor asks a question of the creditor, the creditor must answer it truthfully. A creditor must also disclose the truth about any misapprehension or unfounded assumption a guarantor may be acting upon.

Duress or Undue Influence

If a guarantee is procured by duress or undue influence by the creditor or debtor, it may be voidable. To succeed, a guarantor would need to show that the provision of the guarantee was not an independent act of the guarantor, acting of its own free will and based on full information.

Married Women

In Australia, where a creditor relies upon the husband to procure his wife’s consent to act as guarantor and there is actual undue influence by the husband, the transaction may be set aside by the wife unless she has received competent and independent advice.

In the absence of undue influence, the Courts have found that it would be unconscionable for a creditor to enforce a guarantee against a wife if she fails to understand the significance and effect of the transaction.

Unconscionable dealing

This is the most utilised ground for seeking to set aside a guarantee. Where it can be established that a guarantor was under a special disability or disadvantage in dealing with a creditor and the creditor seeks to take advantage of this, a court may set aside the guarantee. Examples of circumstances involving unconscionability include poverty, sickness, age, drunkenness and/or illiteracy.

Statutory relief against unconscionable conduct is provided by the Australian Securities and Investments Commission Act 2001 (Cth), the Competition and Consumer Act (Cth), and the Corporations Act 2001 (Cth) and, in NSW, by the Contracts Review Act 1980 (NSW).

Non est factum

This defence focuses on the absence of any consent of the guarantor to the document signed. It is available to those who are unable to read due to blindness or illiteracy and to those who are unable to have any understanding of the significance of the transaction because of some other disability.

Illegality

A contract of guarantee can be unenforceable because of illegality. Some examples include:

  • where the making of the guarantee is expressly or impliedly prohibited by statute; and
  • where the effect of the guarantee is contrary to public policy or infringes public policy.

Conclusion

If you are seeking to obtain a guarantee or become a guarantor, we recommend that you seek legal advice.

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.

Collaborative law – a new approach to Family Law

Collaborative law is a relatively new concept used to resolve legal disputes. Collaborative lawyers are qualified lawyers with training and experience in dispute resolution and facilitation processes.

Collaborative law involves the parties to a dispute and their lawyers, signing a Participation Agreement which requires them to conduct confidential and transparent negotiations to resolve a matter without recourse to litigation. Generally, the parties will meet several times to work towards a settlement.

The parties must agree not to threaten litigation and the lawyers must not advise the parties to start Court proceedings. If an application is made to commence proceedings in a Court or Tribunal the agreement is terminated and both lawyers must discontinue representing the client.

Collaborative law and family matters

Collaborative law can be used for a range of legal matters including commercial, neighbour and family law disputes.

The process is particularly suited to family law matters as the conciliatory approach has potential to preserve the parties’ relationship. Obviously, this is beneficial when children are concerned given that the parents will need to have ongoing contact and discussions regarding the welfare and care of their children.

An overriding benefit of the Participation Agreement, is the commitment the parties are making to resolve the dispute without litigation.

The parties ‘steer’ their own matter rather than have directions and hearing dates set by a Court or Tribunal. This has the potential to significantly minimise cost and delay, and of course, the stress and anxiety of being involved in Court proceedings.

Clients and their lawyers set the agenda for each meeting and the lawyers liaise with each other regarding the agreed procedural aspects for running the meetings.

By giving the parties collective control over how their matter progresses, settlements may be reached which are less restrictive than what might be ordered by a Court. Parties are not confined to technical legal issues, and can therefore agree on more flexible resolutions that include non-legal matters.

Because collaborative law is non-adversarial, there is no winner or loser. This allows the parties to maintain dignity and respect for each other.

Although each party must give full disclosure of facts relating to the issues in dispute, the discussions and meetings are family-focused with a facilitative approach. The parties must involve themselves in a concerted team effort to settle the dispute.

If necessary, the parties can agree to involve an impartial coach or facilitator to assist in reducing conflict or a professional (accountant, valuer, child specialist) to provide an expert opinion.

Collaborative law at a glance

  • The professionals involved in a collaborative law arrangement are bound by professional conduct rules and client confidentiality.
  • Parties must act in good faith, provide full disclosure and attempt to reach a resolution.
  • Apart from financial disclosure, discussion and documentation will be subject to legal privilege which means they cannot be used in Court proceedings. Only where a professional has a statutory obligation to make a report (for example where a child is at risk) will confidentiality and privilege be overridden.
  • Negotiations are conducted directly between the parties and their lawyers – opinions and ideas are expressed face to face rather than ‘behind’ the forefront of the lawyer.
  • Correspondence between the parties’ lawyers is limited – being replaced by minutes documenting the discussions and decisions made during the meetings.
  • The collaborative process avoids the need for technical legal documents that must adhere to the rules of evidence and can be costly to prepare.
  • Once a settlement is negotiated, the agreement will be legally documented for the parties to approve and sign.
  • Litigation must not be threatened nor commenced otherwise the agreement will be terminated and the parties will need to find alternate representative. This is a considerable incentive to keep parties focused on the issues in dispute and working towards a resolution.

When might collaborative law not work?

Whilst collaborative law is open to all family matters, it may not be suitable if one or both parties are antagonistic, violent, have a drug or alcohol dependency or have severe psychological disorders. Safety issues and significant trust concerns will also be a barrier to effective negotiations.

The parties must be fully committed and not see the collaborative approach as a way around disclosure obligations.

Summary

Collaborative law may not be appropriate for every legal dispute but certainly worth considering as an alternative way to resolve your family law issues.

Lawyers engaging in the collaborative law process should be suitably trained and committed. If the Participation Agreement is terminated both lawyers may no longer act for the parties who will need to find alternate representation.

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.

Surveillance in the Australian Workplace – is it legal?

In the modern era of advanced technology, the issue of employee surveillance and privacy in the workplace has become increasingly relevant. Workplace surveillance can take various forms, including video surveillance, computer monitoring, telephone monitoring, email monitoring, and GPS tracking. There are certainly legitimate reasons for employers to monitor their employees using these means, such as ensuring productivity, preventing theft, or maintaining cybersecurity. However, in Australia, employee surveillance is subject to legal regulation, and employees have certain rights regarding privacy and monitoring in the workplace. This article will provide an overview of the legal framework concerning workplace surveillance.

Legal Framework

The legal framework governing workplace surveillance in Australia is a mixture of federal and state or territory legislation. Generally, state and territory law cover the installation and use of CCTV, and some states also have specific workplace surveillance legislation, while federal law provides broader privacy protections.

Under the federal Privacy Act 1988, and the related Australian Privacy Principles (APPs), employees across Australia have a right to personal privacy, even while performing their job duties. Under this legislation, employers should respect the privacy of their employees and ensure that any surveillance measures are reasonable, proportionate, and necessary for the legitimate business needs of the employer. Excessive or intrusive surveillance that goes beyond what is necessary may infringe on employees’ privacy rights.

It is important for employers to know that data that they collect through surveillance of employees is considered personal information. This includes the image of individuals collected through CCTV recording. Employers must take reasonable steps to protect this personal information from misuse, interference and loss, as well as unauthorised access, modification or disclosure. When an employer no longer needs to hold the personal information for the purpose for which it was collected, it must take reasonable steps to destroy the information or ensure that it is de-identified.

Employees who believe their privacy rights have been violated by surveillance undertaken by their employer have the right to lodge a complaint with the relevant authority, such as the Office of the Australian Information Commissioner (OAIC) or the Fair Work Commission.

Employee Consent to Surveillance

In most states it is necessary for employees to be notified about surveillance in their workplace. This can be achieved through clear policies, employment contracts, or workplace agreements. For some forms of surveillance, the employer must not only inform the employee, but also seek consent. When consent is required, it must be freely given, informed, and voluntary.

There are also specific areas of a workplace that cannot be monitored, including toilets, changing rooms and shower facilities. It is essential that any permitted surveillance does not accidentally record an area where an employee has a higher expectation of and right to privacy.

Covert Surveillance

Covert workplace surveillance is surveillance that takes place without the awareness of employees, and it is strictly prohibited in many jurisdictions across Australia. Even where covert surveillance is prohibited, however, there are exceptions for an employer who has sought authority through the courts. In New South Wales, for instance, a magistrate can issue an authority for the purposes of monitoring unlawful activity in a workplace.

Case Study

Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch was a case that considered the use of covert surveillance in the workplace. In New South Wales, the Workplace Surveillance Act 2005 requires that an employee be given at least 14 days’ notice prior to workplace surveillance commencing and, in the case of camera surveillance, there must be signs notifying employees that they may be under surveillance clearly visible in each entrance. In this case, however, surveillance cameras were installed at a gym with no prior notification and no signage.

An employee at the gym was observed acting in a way that his employee considered a reasonable basis for termination. The dismissed employee applied to the Fair Work Commission on the basis that his dismissal was predicated on information gathered through unlawful surveillance.

When the case was first heard, the CCTV footage was excluded because it was recorded in breach of the requirement that employees be given proper notice. On appeal, the Full Bench of the Fair Work Commission held that, even if the employer’s CCTV footage had been illegally or improperly obtained, the Commissioner had erred in automatically excluding such evidence. The Full Bench stated that the proper approach to be applied in considering whether or not illegally or improperly obtained surveillance should be admitted as evidence requires the consideration of the factors in the Evidence Act 1995 (NSW), including the probative value of the surveillance and its importance to the case.

This case illustrates that, although employers in NSW are required to give notice of surveillance, employees should be aware that their conduct can still endanger their employment if it is captured by undeclared covert surveillance.

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.

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.