by Amy Lowry | Apr 4, 2024 | Insights
A discretionary trust has long been established as the most common form of asset protection, it has been thought to be the one way to shield your assets from creditors and divorce.
In 2008, the High Court held in Kennon v Spry that for assets held in a discretionary trust to be called into the property pool available for division in a family law property settlement, one of the parties needed to have both effective control of the trust and a right as a beneficiary of the trust in order to constitute property under section 79 of the Family Law Act 1975 , it was held that if a party only has a right as a beneficiary under the trust deed and no effective control it is merely a financial resource under section 75(2).
The recent decision in Woodcock (No 2) challenged this previous decision by asserting that a beneficiary’s rights in a discretionary trust, specifically the right to due administration and consideration, constitutes property under section 79 of the Family Law Act 1975. The trial judge found that despite the lack of control over the potential benefits of the trust, the husbands rights as a beneficiary were considered property, influencing the division of the property pool.
The decision in Woodcock has created uncertainty as to how a court will treat a party’s interest in a discretionary trust in family law matters. There is a possibility that following the decision that there could be an appeal as to the trial judge’s decision but if upheld, it could have a significant impact on how discretionary trusts are dealt with in the division of assets, with the potential of not favouring the party who benefits under the discretionary trust.
by Amy Lowry | Apr 4, 2024 | Insights
In estate planning and preparation, an often overlooked yet indispensable document is the Enduring Power of Attorney (EPA). In Queensland, this legal document empowers individuals to plan for unforeseen circumstances ensuring that their financial and personal affairs are managed accordance with their wishes.
The EPA is a legal document which designates a trusted person, known as an attorney, to make decisions on behalf of the individual if they become incapacitated or unable to make decisions independently. This authority extends to financial and health/personal related decisions offering a comprehensive safeguard for the individual’s interests. Moreover, an EPA allows individuals to remain in control of their affairs, by carefully selecting an attorney they can ensure that their values and preferences are respected, providing a peace of mind for themselves and family members during a difficult time.
The EPA serves as a proactive measure to avoid potential complications and family disputes, without this document family members may face legal hurdles (such as QCAT appointed Guardianship) and delays in making decisions for their loved ones potentially causing financial strain and emotional distress.
In Queensland, the enduring nature of the EPA is particularly crucial, as it remains effective even after the loss of capacity, this durability offers a seamless transition of decision-making authority to the attorney.
An EPA is an essential tool that that empowers individuals to plan proactively for unforeseen events, it is a significant and vital step in estate planning which promotes autonomy and ensures a smooth transition in times of need and in securing one’s future.
by Amy Lowry | Apr 4, 2024 | Insights
Following separation of a marriage or de facto relationship, parties usually need to arrange how they are going to divide assets and liabilities owned both individually and jointly between the parties. There is a common misconception that both parties are always entitled to an equal division of the property pool. This is not always the case.
In order to determine a just and equitable division of the property pool, there are a broad range of factors that the Court considers under Family Law Act 1975 (Cth).
These factors are used to analyse contributions made by or on behalf of each party towards the acquisition, maintenance, or improvement of property in addition to homemaking and parenting contributions. Consideration is given to the contributions prior to commencement of, during, and following separation of the relationship. The weight given to each of these factors is also consider in addition to the length of the relationship and the overall property pool. For example, initial contributions prior to the relationship will likely be considered with more weight for a 4-year relationship compared to a 14-year relationship. However, each separation is different, and the weight given to each factor is heavily dependent on the surrounding circumstances.
Contributions by the parties can be broken down into the following general categories:
- Initial contributions – whether either party had a greater income or owned more assets and liabilities than the other at the commencement of the relationship.
- Financial Contributions – whether either party made greater contributions than the other by way of payment towards general living expenses, bills, mortgage payments, payment of maintenance, purchasing property, and liabilities taken out such as credit cards. This also takes into account each parties employment throughout the relationship.
- Non-financial Contributions – whether either party made greater contributions than the other by way of gifts or inheritances from family, managing investments, running a business, or performing renovations to property.
- Homemaker & Parenting Contributions – whether either party contributed more than the other towards the welfare of the family and household such as proportion of care for children of the relationship, cooking meals, general house cleaning and yard maintenance.
In addition to the contributions by the parties as set out above, consideration is also given to the future needs of each party. This includes age, health, current financial situation, caring responsibilities of children and earning capacity. For example, a party who is unable to maintain employment due to ongoing health issues requiring expensive treatment presents a greater future need than someone who is healthy and working full time.
In instances where there is a vast difference in income between the parties, the party with a low or nil income may also have the ability to seek spousal maintenance. Spousal Maintenance is a sum of money that can be paid by periodic instalments or lump sum payment. In order to determine the eligibility and sum of spousal maintenance, the court considers what are reasonable financial needs based on the surrounding circumstances on a case-by-case basis. This is determined based on future need factors previously discussed alongside the lifestyle of the parties during the relationship and whether either party is making child support payments.
Due to the extensive scope of factors taken into consideration, a party’s entitlement in a property settlement cannot be determined on mathematical basis. Rather, it is determined in each matter by taking into consideration of all surrounding circumstances. Therefore, it is important to obtain legal representation upon separation to ensure that you obtain a just and equitable outcome.
by Amy Lowry | Apr 4, 2024 | Insights
An application for a Protection Order (Domestic Violence Order) can be made by:
- A person applying to the court themselves;
- An authorized person such as a friend, relative, or a welfare worker to make an application on behalf of the person needing a protection order;
- A police officer on behalf of the person; or
- A guardian appointed by the Queensland Civil and Administrative Tribunal to make personal decisions for the person.
If you are named as a respondent on an application for a Protection Order, you can take the following courses of action:
1. Negotiate the Withdrawal of the Application or Enter into an Undertaking
This involves a solicitor writing to the person to request that they withdraw their application. In doing this, it may be beneficial to offer an undertaking which is a signed promise that you will abide by certain conditions that usually reflects you will be of good behaviour and not commit any acts of domestic violence. The main difference between an undertaking and a protection order is that an undertaking cannot be enforced by the court and does not result in you being charged for contravening it, but it can be used as evidence in a subsequent application made against you.
The main advantage of this approach is that a formal order is not made against you by the court, and the applicant is provided with reassurance that they have something signed by you stating that you will remain of good behaviour. Entering into an undertaking also provides both of you with a chance to resolve the issues at an early stage without the emotional and financial stresses of a lengthy court hearing.
2. Consent Without Admissions to a Final Order
This option means that you agree to a final protection order being made against you on a final basis, but you are not admitting to any allegations made against you. The conditions that would be imposed can be negotiated with the applicant.
The main advantage of this approach is that a resolution is achieved quickly without admissions to any allegations made against you. The main difficulty of the process is the negotiation with the applicant regarding additional terms. In taking this approach, a protection order will be made against you which you must strictly comply with. If you breach a protection order, it is considered a criminal offence and police may then charge you with an offence.
Further, whilst a Protection Order is a civil Order, it can have consequences. This includes the being ineligible to hold a weapons licence or any weapons for a period of 5 years from the date of the Order.
3. You Contest the Application and Proceed to a Hearing
Contesting an application made against you is the most difficult and costly approach which requires the Applicant and any witnesses involved in the matter to file affidavit material. The Respondent and any witnesses are then required to respond with Affidavit materials. All parties and witnesses must then appear at a hearing in the Magistrates Court and be available for cross-examined If you are subject to a temporary protection order, you cannot cross-examine the other party, and you must engage legal representatives. Otherwise, the Court could consider the evidence of the Court without cross examination. The presiding Magistrate will consider all the evidence provided, and determine whether or not a final Proteciton Order should be made. In making this determination, there are two consideraitons that must be satisfied:
- That you committed acts of domestic violence; and
- Whether a protection order needs to be made.
The advantage of this approach is that there may be no Final Order made against you. However, if the magistrate makes a protection order, you will not have any control or opportunity to negotiate the terms of the order. Further, there would be a positive finding of fact that you did commits acts of domestic violence, which can be considered in other matters, such as parenting or property matters.
by Amy Lowry | Apr 4, 2024 | Insights
If you have been convicted of a drink or drug driving offence and you require your drivers’ licence for work, you may be eligible to apply to the Court for a Restricted Licence. This is also referred to as a Work Licence which allows you to drive under specific conditions.
These conditions commonly include the type of vehicle you are permitted to drive, the purpose you are driving for, and specific times you are permitted to drive. Additionally, if you are granted a Restricted Licence, you must carry your licence and Court Order to show to a police officer upon request, comply with all conditions set by the court and have a zero-blood alcohol concentration.
You may be eligible to make an application for a restricted licence if:
- You hold a Queensland Open Licence;
- You have not lost your licence for any reason in the last 5 years; and
- At the time you committed the offence, your blood alcohol concentration was no more than 0.15%.
You are not be eligible to make an application for a restricted licence if:
- You hold a provisional or learner’s licence;
- Your licence has been suspended, disqualified, or cancelled in the last 5 years (this does not include any State Penalties Enforcement Registry (SPER) suspensions);
- At the time you committed the offence, your blood alcohol concentration was over 0.15%;
- You committed the drink driving offence whilst driving a class of vehicle that you were not authorised to drive;
- You have been convicted of drink or drug driving or dangerous driving in the past 5 years; or
- You were driving for work-related purposes at the time of your offence.
Upon making an application for a restricted licence to the Court, you must satisfy the two following elements:
- That you and your family would suffer extreme financial hardship resulting from you losing your means of earning a living if your application was denied; and
- You are a fit and proper person to be granted a licence, taking into consideration your traffic history. This means that you must satisfy the court that you are not a danger to other road users.
It is important to note that any application for a Work Licence must be made prior to being sentenced for the offence. You are ineligible to apply after a sentence has been imposed.
Further, should the Court grant a Work Licence, the Court has the Court may impose a disqualification period to be twice that is otherwise specified as the maximum penalty in the legislation. You cannot drive for any other reason whilst subject to a Work Licence, such as attending to childcare matters or shopping. If you are found to be driving outside of the condition of your Work Licence, you can be charged with a further offence and have your Work Licence cancelled.
