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.
by Amy Lowry | Apr 4, 2024 | Insights
Recently the Queensland Justice system has been thrusted into the spotlight with a focus on crime rates and the medias perception that Queensland courts are handing down soft sentences. However, the fact of the matter is that when a matter comes to sentencing there are a raft of principles and considerations that need to be considered.
Principles of Sentencing
Three main principles make up the framework for sentencing, that being punishment, rehabilitation, deterrence and to protect the community from the offender. From a punishment perspective, the punishment must fit the crime, which means that the sentence must be proportionate as well as being consistent. From a rehabilitation and deterrence perspective, the two principles work in conjunction by trying to address the issue or issues of the individual. The aim is to correct the individual’s behaviour which should lead to deterring the individual, and the community generally, from engaging in anti-social behaviour. However, when the courts hand down a sentence, they are guided by many other factors that must be considered to produce a fair and just punishment.
Section 9 of the Penalties and Sentencing Act 1992 (Qld) outlines the framework of what factors the courts must consider., including but not limited to:
- The nature and seriousness of the offence;
- the offenders age and character;
- Thephysical and mental harm caused to a victim and whether it is a domestic violence offence;
- indigeneity and any criminal associations;
- Any assistance with law enforcement;
- the maximum and minimum penalty available, and if relevant, the amount of time already spent in custody.
The list of considerations is extensive and is assessed on a case-by-case basis andwhich demonstrates the complexities of sentencing. However, the most important consideration is the risk posed to the community and the risk posed to the victims, which ultimately holds a higher threshold when those types of offences are concerned.
Custodial sentences
The sentencing guidelines provide that a term of imprisonment should only be imposed as a last resort and that a sentence that allows the offender remain in the community is preferrable. However, this does not apply to any offences that involve actual, attempted or procured violence against another, or if any physical harm to another has occurred.
Further, the most severe offences, such as homicide or manslaughter, will attract a mandatory sentence which requires the offender to serve a specific amount of time before being eligible for parole. The offender of serious violent offences will requires them to be declared a serious violent offender. Currently, mandatory sentences require a serious violent offender to serve 80% of the sentence or fifteen years, whichever is less. Once an offender has served the required amount of time of a custodial sentence they can apply for parole, which is not guaranteed and is considered by the Parole Board. A Serious Violent Offender declaration is made in the following circumstances:
- Automatically if the offender is sentenced to 10 years of more for a listed offence, including but not limited to, violence offences, sexual offences, drug offences;
- Or by judicial discretion by the sentencing Judge or Justice.
Another type of custodial sentence that generally receives community debate is suspended sentences. To receive a suspended sentence, the sentence must not be more than five years and must be served amongst the community. This allows the offender to remain in the community, provided they do not commit any further offences punishable by imprisonment during the operational period set by the Court. If that occurs, the offender is required to appear before the Court for breaching the suspended sentence, in addition to answering the further charge. On conviction for the further offence, the legislation provides that a Court must order that the offender serve the whole of the suspended sentence, unless it is unjust to do so. Alternatively, they can extend the operational period of the suspended sentence by no more than 1 year.
The Court can also impose periods of imprisonment with release on parole. The offender would then be subject to a parole order in the community, which requires them to be supervised, in addition to an array of other conditions. Parole can either be immediate on the day of sentence or can be set at a later date. In sentences where the offender is already on parole, or the head sentence is 5 years or more, the Court can only set an eligibility date for parole. This means that the offender will not be immediately released, rather, they must apply to the parole board for release.
Due to the need to correct an individual’s criminality and detention being the last resort, the courts can impose an intensive correction order, however, these types of orders are reserved for sentences that are less than one year and are supervised by correction staff in the community with a requirement that the individual participants in mandatory counselling or community service programs.
Non-custodial sentences
Non-custodial sentences are reserved for offences that are less severe which can include:
- Convicted and not further punished for the offencel
- Good behaviour orders with a recognisance, which requires the individual to make a promise to the court stating that they will not become before the court during the length of the order;
- monetary fines;
- compensation orders;
- probation;
- community service; and
- disqualification of drivers licences.
There are many different types of sentences and orders that can be imposed and many different types of circumstances that lead clients of the justice system. Just as vexed as those issues are, the role of sentencing is one that requires careful consideration of all factors.
by Amy Lowry | Apr 4, 2024 | Insights
What are statutory demands and when are they used?
Where a company owes a creditor at least $4,000.00, the creditor can elect to issue the company with a statutory demand, pursuant to section 459E of the Corporations Act 2001 (Cth) (The Act). The demand requires the company to either make payment of the debt within 21 days after service of the demand or apply to the Court for an order setting aside the Demand.
To issue a statutory demand, creditors must ensure they follow the strict requirements set out in the Act, namely:
- the demand must be in writing in the prescribed form, being a Form 509H;
- the demand must adequately specify the debt and the total amount owing by the company to the creditor;
- state the requirement for payment of the debt within 21 days after the demand has been validly served on the company;
- Form 509H must be accompanied by an affidavit of the creditor which sets out the validity of the debt due and currently payable by the company; and
- must be signed by or on behalf of the creditor.
If a company has been served a statutory demand and wishes to seek an order of the Court to set aside the Demand, the company must be able to demonstrate there is a genuine dispute over the debt. In this instance, the genuine dispute can relate to a dispute over the debt itself or on the basis of an inadequate or insufficiently particularised demand.
If a company does not respond within 21 days of service of a statutory demand, either by complying with the demand or applying for an order to set aside the demand, the company is presumed insolvent. The presumed insolvency of the company opens the door for the creditor to apply to the courts to have the company wound up. Therefore, the consequences of not acting swiftly upon service of a statutory demand are significant.
When you should not use a statutory demand.
As already mentioned, a company can apply to the courts to set aside a statutory demand where there exists a genuine dispute over the debt. In these applications, a genuine dispute is likely to be found by the courts where there is plausible contention over the debt, requiring investigation.
Where the company has already expressly accepted liability for the debt, it may be more difficult for the company to show there is a genuine dispute. The converse applies where the company has made the creditor aware of their dispute over the debt prior to the issuing of the demand, the courts will more readily accept there is a genuine dispute.
Therefore, in circumstances where a creditor is aware that there is a potential dispute between the parties about the debt (which could be over the amount of debt, when it is due and payable or any other dispute), it is not appropriate to serve a statutory demand.
Cost Consequences
The courts have the power under the Act, to order creditors who have issued statutory demands which have subsequently been set aside on application from the company, to pay the company’s costs in bringing that application. It is for this reason that creditors should take caution when considering serving a statutory demand and avoid utilising these demands as a means of standard debt collection.
Further, if a creditor issues a statutory demand but subsequently becomes aware of a genuine dispute over the debt, they should act promptly to withdraw the demand. This is because if the company files an application to set aside the demand and the creditor does not withdraw the demand in a timely manner and the courts find there is a genuine dispute, the courts may still award the company costs, even though the creditor did eventually withdraw the demand. This is based upon the principle reiterated in Progressive Projects Pty Ltd v McCullough Robertson Lawyers,[1] the courts have an overarching discretion to order costs.
Statutory demands can have significant consequences, both for companies who don’t respond to such demands within 21 days of service and for creditors who issue demands where there exists a genuine dispute. This is why it is imperative to be fully aware of your obligations as companies and creditors and act promptly.
If you’ve been served with a statutory demand or are seeking recovering of a debt from a company, please reach out to our team of experts for a confidential discussion. None of the above information is intended to be used as legal advice and you should always speak to a legal practitioner to seek advice where necessary.
[1] [2024] QSC 39, at [16].
