Latest Legal Blogs
Burial Wishes - Binding Or Not?
When drafting a will, many people are eager to include specific instructions about their burial or cremation wishes. This is understandable. Where your remains are laid to rest for eternity seems like a very important part of the dying process. Eternity does of course seem like a long time. But, are burial wishes included in your will legally binding? The short answer is no. While your burial preferences may be expressed in your will, they are not enforceable by law. Who legally has the right to decide your burial arrangements? In Queensland, the legal position is that the control of funeral and burial arrangements of the deceased typically rests with the executor of the Estate. An executor is the person tasked with carrying out the terms of your will, including the decision making around your funeral arrangements. If you do not have a will this responsibility will fall on the person with right to apply for Letters of Administration. Depending on your situation if you die without a will (also known as dying intestate) your executor is typically your spouse or child. In Queensland, Rule 610 of the Uniform Civil Procedure Rules 1999 (Qld) provides the people with priority when applying for Letters of Administration for matters of intestacy. What about funeral insurance? Many people turn to funeral insurance to ensure that their funeral arrangements are clearly set out. Funeral insurance is not compulsory, and we wouldn’t say its an imperative. However, it is important to ensure that if you do insist on funeral insurance that your benefits eventually go to the intended recipient by carefully checking the policy and who you have designated as beneficiary. Typically, people assume that their funeral insurance payout will automatically go to their executor. However this is not the case. To ensure your insurance is being paid out to the correct person:- Carefully choose your beneficiary – Ensure the policy names the correct person, being your executor. Keep Your Policy Up to Date – Life changes may require you to update our beneficiary. Communicate Your Wishes – Inform your beneficiary of their role and how the funds should be used. Overall, funeral wishes are a bit of a grey area. They might be followed but they aren’t binding. If you want something unique its best to let the people around, you know. If you’re needing some inspiration for a ‘unique approach’ to burial and cremation try looking in to how Keith Richards commemorated his late father. Unique is probably an understatement for what happened there….
Enduring Power of Attorney: The Essential Companion to Your Will
Planning for the future can feel overwhelming, and understanding which estate planning documents you need isn’t always straightforward. Many people are well aware of the importance of having a Will and are eager to finalize one. However, fewer people show the same enthusiasm when it comes to completing their Enduring Power of Attorney (EPA). Often, a Will is seen as the main focus, while the EPA is the overlooked sidekick. While it may not be the most exciting document to consider, having a well-drafted EPA is crucial in ensuring that your affairs are managed according to your wishes by the person you choose. The person you appoint as your Enduring Power of Attorney can significantly impact your future well-being. An EPA is more important than a Will in that you will still be alive. What is an Enduring Power of Attorney? An EPA is a legal document that allows you to appoint one or more individuals to manage your personal, financial, and health-related decisions. Unlike a standard Power of Attorney, which becomes void if you lose mental capacity, an Enduring Power of Attorney remains in effect even when you are no longer able to make decisions for yourself. For health-related decisions, no one can act on your behalf unless you have lost capacity. However, when it comes to financial matters, you have two options: Immediate Authority – You can choose to grant your attorney/s the power to manage your finances as soon as the document is signed. This can be helpful if, for example, you are traveling overseas and need someone to handle financial matters in your absence. Also you may have capacity but are too ill to handle your financial matters. Your attorney can attend to your business affairs without having to prove you have actually lost capacity. Authority Upon Loss of Capacity – Alternatively, you can elect that your attorney/s only have power over your financial affairs once you lose capacity. In this case, they would need to provide evidence of your incapacity before stepping in. While this option ensures you maintain full control until necessary, it can also create challenges when immediate action is required. How Many Attorneys Should I Have? There is no one-size-fits-all answer when it comes to appointing attorneys under an Enduring Power of Attorney. The decision should be based on your personal circumstances and who you trust in your life. Some people choose to appoint a single attorney with a substitute in case the first attorney is unable to act. Other people opt to appoint multiple attorneys to act jointly. This way multiple attorneys share responsibility. Where you decide to appoint more than one attorney, it’s important to consider how they will work together: Jointly – This means they must agree on all decisions together. This can provide an extra layer of oversight but may also cause delays if your attorneys can’t reach a decision; Severally – With this option each attorney to act independently. This can make decisions more streamlined however requires a higher level of trust in you’re the attorneys to make decisions alone. Where one of your attorneys is difficult to access or lives far away from you this can be a preferable option. Jointly and Severally – Giving attorneys the option to act together or separately. This way they can either all sign off on a decision, but it is not compulsory. When selecting your attorneys, consider their relationship with each other, their ability to communicate effectively, and their capacity to manage financial and personal affairs. For example, if your adult children have never gotten along, appointing them as joint attorneys is probably not the best way to coax a newfound friendship. Choosing the right people can make all the difference in ensuring the right decisions are made for you.
Spouse Maintenance – What Is It & Who Is Entitled?
Spouse maintenance is financial support paid by one party to a marriage or de facto relationship to the other because the other party is not able to adequately financially support themselves following separation. Sections 72 (for marriage) and 90SF (for De Facto) of the Family Law Act 1975, provide that parties have a responsibility to financially support their former spouse (Wife/Husband or De Facto Partner) if their former spouse is not able to meet their own reasonable expenses from assets or personal income. Spouse maintenance payments can either be periodic (i.e. on a weekly basis) or a lump sum amount. How to obtain spouse maintenance? Where parties cannot agree whether spouse maintenance is payable and/or the amount of spouse maintenance to be paid, the party seeking spouse maintenance from their spouse can file an Application in the Federal Circuit and Family Court of Australia (“the Court”) seeking an Order that spouse maintenance be paid. How does the Court determine whether spouse maintenance is payable? Where a party files an Application for spouse maintenance in the Court, the Court will first consider:- Whether the person making the application (the Applicant) is unable to adequately financially support themselves (“needs of the Applicant”); and Whether the other person (the Respondent) has capacity to financially support the Applicant (“Respondent’s capacity to pay”). When determining the needs of the Applicant and whether the Respondent has the capacity to pay spouse maintenance, the Court considers the following:- The age and health of each party; The income, property and financial resources of each party and the physical or mental capacity of each party for appropriate gainful employment; Whether either party has the care or control of a child of the marriage/relationship who is under the age of 18; The commitments of each party that are necessary to enable each party to financially support themselves and a child or another person they have a duty to maintain; and Any other matter to be take into account under sections 75(2) (for marriage) and 90SF(3) (for De Facto) of the Family Law Act 1975. How long is spouse maintenance payable? Orders for spouse maintenance are generally confined to a specific period of time, however, in some circumstances spouse maintenance can be required to be paid indefinitely. The amount payable and the period of payment of spouse maintenance is dependent on the circumstances of the parties. Upon the death of either party, any existing Court Order for spouse maintenance will cease. However, where spouse maintenance provisions are contained in a Financial Agreement, those provisions may still be enforced after the death of the payer of spouse maintenance. Time limits Where parties are married, an Application for spouse maintenance must be filed within 12 months of a divorce order taking effect. Where parties are not divorced, the limitation period does not start to run. Where parties are in a de facto relationship, an Application for spouse maintenance must be filed within two (2) years of the date of separation. Where a limitation period has expired, parties can still seek permission from the Court to start proceedings outside of time. However, whether the Court grants a party permission to bring proceedings outside of time is dependent on the circumstance of that particular matter. What if I am paying spouse maintenance and my former spouse remarries? Where a party receiving spouse maintenance marries another person, an Order for spouse maintenance generally ceases to have effect unless otherwise ordered by the Court. The party receiving spouse maintenance has a duty to inform the person paying spouse maintenance without delay of the date of their marriage. If a party receiving spouse maintenance commences a de facto relationship, spouse maintenance does not necessarily end. The Court can however, when determining the continuation of payments, consider whether or not the new relationship constitutes a de facto relationship and the circumstances of that relationship (ie living arrangements and pooled incomes) when determining the continuation of spouse maintenance payments. Is there a difference between spouse maintenance and property settlement? Yes, property settlement relates to the division of assets and liabilities of the relationship whereas Spouse Maintenance is paid for the financial support of a former spouse. An obligation to pay spouse maintenance does not expire after property settlement orders are obtained, however, whether a party remains entitled to spouse maintenance or has the capacity to pay spouse maintenance following property settlement depends on the circumstances of that particular matter. Need advice? Our Family Law Team can provide you with comprehensive and specific advice about spouse maintenance. Contact our Family Law Department, if you would like to arrange an initial consultation.
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The Importance of Complying with Domestic Violence Orders: Lessons from CDL v Commissioner of Police [2024] QCA 245
Domestic and Family Violence continues to be a persistent and pervasive issue within our society, and ensuring that there is compliance with Domestic Violence Orders (DVO’s) is essential to make sure that victims of Domestic Violence are protected and that the integrity of the justice system is maintained. In Queensland a Court can make a Domestic Violence Order if the Court is satisfied that:- A relevant Relationship exists; That Domestic Violence has occurred and; That the making of an order is necessary and desirable in all the circumstances. When the Court is deciding whether or not to make a Domestic Violence Order, it is being asked to effectively review the relationship and perform a risk assessment as to whether or not there is a future risk of the victim (often referred to as the aggrieved), being exposed to ongoing domestic violence if an order is not made. The making of a Domestic Violence Order does not mean that you have been convicted of a criminal offence, nor does it add an entry to your criminal history. However, breaching a Domestic Violence Order is a criminal offence under section 177 of the Domestic Violence and Family Protection Act and carries a maximum penalty of $18,576 (120 penalty units) or 3 years in prison. The penalty is increased if a person has been previously convicted of domestic violence offence within 5 years prior to the breach of the DVO, resulting in maximum penalties of $37,152 (240 penalty units) or 5 years in prison. The making of a Domestic Violence order may also impact upon a persons employment such as affecting the suitability and eligibility of a person holding a blue card or relevant security clearances. Domestic Violence Orders can also affect the ability of a person to hold a weapons license. Breaching a Domestic Violence Order (or any order made by a Court), is a serious offence. The recent Queensland Court of Appeal decision in CDL v Commissioner of Police [2024] QCA 245 serves as a significant reminder of the gravity of breaching such orders and the severe legal consequences that will likely follow. Overview of the Case The applicant (referred to as CDL), sought leave to appeal a sentence of two years imprisonment for multiple offences of breaching a Domestic Violence Order. The alleged breaches of the order occurred over several years including eighteen (18) contraventions which involved threats, physical violence, and persistent contact with the complainant despite explicit no-contact conditions. The Court of Appeal ultimately refused an application to appeal against CDL’s sentence, and ultimately upheld the sentence imposed on him as proportionate to the seriousness of his conduct and necessary to serve as a deterrent to others. Key Observations Repeated Breaches Escalate Sentences The case highlights the Court’s attitude when dealing with offenders who repeatedly breach Domestic Violence Orders. The decision further highlights that the Court regards repeated breaches of Domestic Violence Orders as a serious affront to the justice system. The Applicant CDL’s persistent violations demonstrated a pattern of disregard for Court orders, necessitating a stronger punitive response. As the Court rightly observed, compliance is essential for Domestic Violence Orders to ensure that the protective purpose of the Order are met. The case also highlights that Courts do not make Domestic Violence Orders for no reason, they are indicative of a finding by the Court that an act or acts of domestic violence have already occurred. At paragraph [44] of the decision the Chief Justice Her Honour Bowskill CJ noted that for the Court to have made a Domestic Violence order it meant that some form of domestic violence had occurred already. The Applicant had been sentenced six (6) times, over twenty-one years (21) for thirteen (13) breaches of Domestic Violence Orders. Ultimately the Court found the conduct of CDL to be contemptuous to Court orders, which further highlights the importance of respecting and abiding by orders made by the Court. Personal and General Deterrence In sentencing the Defendant, the court emphasised the dual objectives of personal and general deterrence. CDL’s persistent offending, even after serving previous sentences, reflected a lack of deterrence, prompting the court to impose a harsher penalty. This approach sends a clear message to potential offenders that breaches of Domestic Violence Orders will not be tolerated. Protection of Victims The case underscores the primary purpose of Domestic Violence Orders, which is to to safeguard victims from further harm and domestic violence. CDL’s conduct placed the victim in a continuous state of fear and distress. Upholding the sentence reflected the court’s commitment to protecting vulnerable individuals and ensuring that orders issued for their safety are meaningful and enforceable. Why Compliance with Domestic Violence Orders is important. Holding perpetrators to account and victim Protection Domestic Violence Orders are designed to create a legal barrier between perpetrators and victims, to ensure that victims of Domestic Violence are protected from further abuse. Non-compliance with these orders undermines the safety and mental well-being of victims, often exacerbating the trauma caused by domestic violence. The underlying principle of the Domestic Violence Legislation in Queensland is the safety, protection and wellbeing of people who fear or experience domestic violence, including children, which is paramount. Section 3 of the Act states that the main objectives of Domestic Violence Legislation is to:- (1) The main objects of this Act are— to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and to prevent or reduce domestic violence and the exposure of children to domestic violence; and to ensure that people who commit domestic violence are held accountable for their actions. (2) The objects are to be achieved mainly by— allowing a court to make a domestic violence order to provide protection against further domestic violence; and giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence. Upholding the Authority of the Court Court orders are not mere recommendations or suggestions, they carry the weight of the law. Showing disregard for such orders erodes public confidence in the judicial system and diminishes the perceived authority of the courts. Court must sentence accordingly and must impose penalties which reflect the serious and callousness behaviour of people who breach these orders. Preventing Escalation The offence of breaching a Domestic Violence Order is often a precursor to more severe forms of violence. Early and strict enforcement of these orders can prevent the escalation of abusive behaviour, potentially saving lives. Reinforcing Accountability Compliance with Domestic Violence Orders is essential to ensure that offenders are held accountable for their actions. It forces offenders to understand and accept the boundaries set by the law and respect the rights and safety of others. Summary The decision reiterates the significance in complying with orders made by the Court. There are significant consequences for offenders who repeatedly breach Domestic Violence Orders and have disregard for the Courts who make them. The case is a reminder that the Courts are committed to enforcing these orders firmly and that breaches will result in substantial penalties. Compliance is a legal obligation and a crucial step towards ensuring the safety of victims and respecting the rule of law. Our Criminal Law team practice extensively in Domestic and Family Violence Law and can assist you obtaining a Domestic Violence Order, or responding to an application for a Domestic Violence Order or Police Protection Notice. We can represent you in relation to any criminal offence that may be DV related. If you are experiencing domestic violence, being subject to coercive control, or have been accused of coercive and controlling behaviour, you can contact Connolly Suthers Lawyers to assist you. If you need any further information or assistance, please contact: DVCONNECT MENSLINE - 1800 600 636 DV CONNECT WOMENSLINE - 1800 811 811 Lifeline- 131 11 14
Self-Managed Superannuation Fund Changes You Need to Know!
Staying informed about changes in the world of superannuation is crucial for every trustee managing a Self-Managed Superannuation Fund (SMSF). As we head into the next financial year, it's important to be aware of key developments that could impact your retirement planning strategies. Here's a roundup of some recent updates you should know: Valuing fund assets correctly for the SMSF annual return The ATO has reminded SMSF trustees of the importance of correctly valuing fund assets for the SMSF annual return, flagging concerns that approximately 16,500 funds have reported certain classes of assets at the same value, for at least the last three years. Asset classes identified include property (residential and commercial) and unlisted investments (shares and unit trusts). To address this concern, the ATO has commenced sending targeted messages to trustees and auditors and will monitor the approach taken by these funds in their next annual return. Quarterly TBAR Reminder Trustees must report Transfer Balance Account Report (TBAR) events to the ATO by April 28, 2024, if relevant events occurred between January 1 and March 31, 2024. Note: Where there has been no TBA event during this period, there is no need to lodge a TBAR for this quarter. Director ID Number and ASIC action ASIC has brought its first action against a director for failing to have a director identification number. Although the facts of this matter are not public, this action acts as a stark reminder that all company directors, including the directors of a special purpose company that acts as the trustee of an SMSF, must have a director ID. Superannuation Rates and thresholds for 2024-25 The ATO officially released the updated superannuation rates and thresholds for the 2024-25 financial year. Better targeted superannuation concessions (Division 296 Tax) – Draft regulations released The Government released Treasury Laws Amendment (Measures for Future Instruments) Instrument 2023: Better Targeted Superannuation Concessions (draft regulations), to support implementation of the proposed division tax. These draft regulations contain provisions that enable the calculation of Division 296 tax for defined benefit interests, including: outlining methods to value defined benefit interests, and making modifications to the Division 296 earnings formula to appropriately capture notional contributions to defined benefit interests. Small Business Superannuation Clearing House (SBSCH) – Bank account verification The ATO implemented an update to the Small Business Superannuation Clearing House (SBSCH) introducing SMSF bank account validation – aimed at bolstering the precision and security of superannuation contributions. This change affects all small employers who use the SBSCH to pay superannuation to employees’ SMSFs. Cost of living tax cuts Bill – Legislation passed The Treasury Laws Amendment (Cost of Living Tax Cuts) Bill 2024 received Royal Assent. This bill amends the tax laws to modify income tax rate thresholds and tax rates for individuals for the 2024-25 and later financial years. Trustee Disqualifications The December update of the Disqualified Trustees Register shows 149 trustees were added for the December 2023 quarter. This brings the total number of disqualified trustees between 1 July and 31 December 2023 to 374. Superannuation on Paid Parental Leave The Government announced its intention to pay superannuation on Paid Parental Leave (PPL) entitlements from 1 July 2025. ATO Statistics – SMSF quarterly statistical report (December 2023) The ATO has published it’s SMSF quarterly statistical report for the December 2023 quarter. The report highlights a continued trend of steady growth in the number of SMSFs, with a net increase of 6,743 SMSFs in the December 2023 quarter. Looking at the member demographics of the new funds established during the December 2023 quarter, around: 55% of members were male, and 45% female, and 46% had taxable income between $80,000 and $200,000, while only 12.5% had taxable incomes above $200,000. ATO Statistics – Annual SMSF Statistical Report The Australian Taxation Office (ATO) has released its annual statistical report on Self-Managed Superannuation Funds (SMSFs) for the 2021-22 financial year. Navigating these changes can be intricate, especially as retirement approaches. It's crucial to stay informed and seek advice tailored to your SMSF's specific circumstances. Planning for your retirement starts with understanding the rules that govern your superannuation. If you would like assistance with any of the above information, please contact our Wills and Estates team via (07) 4771 4665.
From Glossy Brochures to Real Responsibilities: A Beginner’s Guide to Body Corporates
So, you’re looking to buy your next home: you find an apartment in a new development in the city, close to your favourite café, at the right price. You’re drawn in by the glossy brochures and can’t wait to use the steam room and stock your exclusive use wine cellar. But you’ve never lived in a community titles scheme before. In fact, you’re not even sure what a body corporate is, or what it does. This is an all-too-common experience for those considering buying into new, or existing, developments. Enquiries we often receive from our clients relate to the basics, such as: What is a body corporate, and what does it do? Simply put, a body corporate refers to the lot owners within a scheme which, as a collective, are conferred with distinct legal personality under section 33 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCMA’). At its core, your body corporate is required to carry out the following duties under section 94 of the BCCMA: administering common property and body corporate assets for the benefit of the owners of the lots included in the scheme (aka, keeping that steam room in working order); enforcing the community management statement (including enforcing any by-laws for the scheme in the way provided under the Act); and carrying out the other functions given to the body corporate under the Act and the community management statement. To assist it in carrying out its function, bodies corporate are vested with ‘all powers necessary for carrying out its functions’ under s 95 of the BCCMA, and may, inter alia: enter into contracts; acquire, hold, deal with and dispose of property; and employ staff. However, it is worth noting that this power is not limitless, and body corporates must be mindful not to act beyond their powers. What is a committee — is it the same as the body corporate? No, the role of a committee can be compared to the role of a board of directors in a large company and is distinctly different to the role of the body corporate. There must be a committee for the body corporate if the regulation module applying to the scheme requires it. The committee is the administrative arm responsible for the day-to-day management of the body corporate and is empowered to make decisions for the body corporate by virtue of section 100 of the BCCMA. Whilst compositions vary between schemes, committees are composed of members (lot owners) elected by their fellow members with positions such as chairperson, secretary, and treasurer. It is worth noting that the discretion of the committee to make decisions for the body corporate is not unfettered, and in this respect, committees are generally restricted from making decisions in relation to the following (example under section 52 of the Body Corporate and Community Management (Standard Module) Regulation 2020): fixing or changing contribution levies; changing rights, privileges, or obligations of members; starting legal proceedings. If there’s a body corporate and a committee, what is left for the body corporate manager to do? That’s a good question, and the answer is simple: it depends. The role of the body corporate manager is to support the body corporate in discharging its administrative function. You might be thinking that serves the same purpose as the committee, except that section 119 of the BCCMA allows community title schemes with a committee to engage a body corporate manager to exercise some, or all, of the powers of an executive member of the committee. Most commonly, a body corporate manager will be authorised to perform powers such as managing compliance with the BCCMA, preparing annual budgets, and issuing and monitoring levy payments. Why do I have to pay contributions? Subject to the applicable regulation module, a body corporate is required to establish and keep an administrative fund and a sinking fund. What is the difference? Well, it’s in the name. Sort of. The purpose of the administrative fund is to deal with the day-to-day running expenses of the body corporate, such as maintenance, repairs, and paying for any service contractors engaged by the body corporate (ensuring the steam room remains functional and common property areas are maintained). The sinking fund can be thought of as the ‘piggy bank’ of the body corporate. It deals with larger items of a capital or non-recurrent nature, such as replacing body corporate assets, or painting of the building. Each year the body corporate passes a budget for each fund, and it follows that contributions to those funds are levied on you, the lot owner. So, should I buy into that new development after all? Well, that’s a matter for you. It might be that you take some comfort in knowing the reality, at least from a governance perspective, that community title schemes are highly regulated and subject at all times to the scrutiny of their members, and prospective buyers. For assistance with a property matters, please contact (07) 4771 5664 today!
Debt Recovery in Queensland: Your Options Explained
If you are owed money, understanding your options for debt recovery in Queensland is important. This article outlines the steps and legal avenues available to recover debts. Letter of Demand Before initiating any legal proceedings, we can assist you with drafting a letter of demand. This formal communication requests the repayment of a debt, or the fulfillment of an obligation specified in an agreement. A letter of demand is typically the final step before initiating legal action and should be taken seriously. Where to Start Legal Proceedings The appropriate venue for a debt recovery action depends on the amount of the debt: Up to $25,000: Queensland Civil and Administrative Tribunal (QCAT) $1 to $150,000: Magistrates Court $150,000 to $750,000: District Court Over $750,000: Supreme Court QCAT QCAT handles debt disputes involving individuals, businesses, or companies for amounts up to $25,000. These debts may include outstanding invoices, overdue rent, or unpaid loans. To begin a QCAT application, the creditor completes an application form and submits it to the tribunal. The debtor is then formally notified of the claim via personal service and given 28 days to either settle the debt or contest the claim. We can assist you in preparing your QCAT application. QCAT processes minor debt disputes in two scenarios: Claims under $1,500 proceed directly to a hearing without mediation; or Claims over $1,500 undergo mediation first, and if unresolved, are scheduled for a hearing. We can also assist with the enforcement of QCAT orders or provide advice on navigating the QCAT application process. Court Proceedings To initiate court proceedings, the creditor submits a claim and a statement of claim to the Magistrates Court, District Court, or Supreme Court, depending on the debt amount. These documents must be personally served upon the debtor. The debtor will then either take no action, pay the debt, or contest the claim by filing a defence. If the debtor takes no action, the creditor can apply for default judgment 28 days after serving the debtor. Once the court issues a judgment, the creditor will either receive payment or can begin the enforcement process. If the claim is defended, the matter will likely be referred for mediation or alternative dispute resolution before any hearing or trial. Once a judgement is ordered it can significantly impact a debtor's credit rating for up to six years and enforcement proceedings may involve measures such as seizing assets (vehicles or homes) or garnishing funds from bank accounts or wages. For individual debtors, there is the possibility of pursuing a Bankruptcy Order (Sequestration Order). For company debtors, initiating the process of winding up the company may be an option if they are unable to repay the debt within a specified timeframe. There is a six-year limitation period from the time the debt was incurred to initiate any debt recovery action. For assistance with debt recovery matters, please contact our dispute resolution team today.
What Is An Independent Children's Lawyer & Do The Amendments To The Family Law Act 1975 Affect Them?
What is an independent children’s lawyer? An Independent Children’s Lawyer (an “ICL” for short) is a lawyer appointed by the Court pursuant to section 68L of the Family Law Act 1975 to represent a child’s best interests and makes submissions to the Court regarding the best interests of the child. An ICL can be appointed in parenting proceedings where one or more of the following circumstances exist:- There are allegations of abuse or neglect of a child; There is a high level of conflict and dispute between the parents; There are allegations made as to the views of a child, and the child is of a mature age to express their views; There are allegations of family violence; Serious mental health issues exist in one or both parents or the child; There are difficult and complex issues involved in the matter. The main role of an ICL is to:- Arrange for all necessary evidence to be obtained and put before the Court; Facilitate the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case; Ensure that any views expressed by the child are fully put before the Court; and Act as an honest broker between the child and the parents and facilitate settlement negotiations where appropriate. An ICL is obliged to consider the views of the child, however, ultimately, they are required to provide their own independent view about what arrangements or decision are in the child’s best interests. How does the ICL consider what is in the child’s best interest? The ICL can obtain various information to assist them in considering what is in the best interests of a child. This can include:- Speaking with any counsellor for the child; Examining documents from the child’s school, child welfare authorities or police; Examining medical, psychiatric and psychological records of the parents and the child; and Questioning witnesses (parents and/or experts) at a final hearing. Who bears the cost of an ICL? An ICL is generally funded under a Legal Aid Scheme (either Commonwealth or State). It is not a free service. There are some circumstances where Legal Aid may ask the parties to contribute the costs of an ICL. This is normally in circumstances where a party’s financial position permits them to do so or by Order of the Court. What effect does the Family Law Amendment Act 2023 have in relation to an ICL? The amendments to the Family Law Act 1975 relating to ICLs are as follows:- The ICL is required to meet with the child and provide the child with an opportunity to express views, unless an exception applies (section 68LA(5A) – (5D)); and The removal of the requirement that the appointment of an ICL in Hague Convention Cases can only be made in “exceptional circumstances) (repeal of section 68L(3) and addition to 68L(1)); The removal of the higher threshold requirement in the Family Law Act 1975 which provides the Family Law (Child Abduction Convention) Regulations 1986 must not allow an objection by a child to return under the Hague Convention to be taken into account unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes (repeal of section 111B(1B)). Duties of an ICL The amendment to section 68LA of the Family Law Act 1975 provides that the ICL has a duty to meet with the child and provide the child with an opportunity to express a view (section 68LA(5A)), unless an exception applies (section 68LA(5B)), however, an ICL cannot require the child to express their view in relation to any matter (section 60CE). Regarding the duty to meet with the child, the legislation specifically provides that an ICL has discretion as to when, how often and how meetings with the child will take place and when, how often and how the child is provided with an opportunity to express their view (section 68LA(5AA)). Section 68LA(5B) of the Family Law Act 1975 provides that the ICL is not required to meet with the child if:- The child is under the age of 5; or The child does not want to meet with the ICL, or express their views; or There are exceptional circumstances that justify not performing that duty (ie performing the duty would expose the child to a risk of physical or psychological harm that cannot be safely managed or have a significant adverse effect on the wellbeing of the child – section 68LA(5C)). If the ICL does not meet with the child due to any of the exceptions provided in section 68LA(5B), prior to the Court making final orders, the Court must determine whether it is satisfied that exceptional circumstances exist that justify the ICL not meeting with the child. If the Court determines that exceptional circumstances did not exist to justify the ICL not meeting with the child, the Court must make an order requiring the ICL to meet with the child or provide the child with an opportunity to express their views (section 58LA(5D)). Expansion of use of ICLs in Hague Convention Cases The Hague Convention of the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country. It also deals with issues of international child access (when a parent lives in a different country to the home country of their child). The Convention is a multilateral treaty in force between Australian and 90 other Countries. The repeal of section 68L(3) of the Family Law Act 1975 removes the requirement that an appointment of an ICL in Hague Convention proceedings can only be made in “exceptional circumstances”. Section 68L(1) of the Family Law Act 1975 has been amended to provide that the section 68L (court’s consideration of appointing an ICL) applies to proceedings where a child’s best interest are paramount or a relevant consideration and further specifies that it also applies to Hague Convention proceedings. This means that an ICL in Hague Convention proceedings will now be appointed by the Court under the same circumstances as other parenting matters. Need advice? Our Family Law Team can provide you with comprehensive and specific advice about parenting matters. Contact our Family Law Department, if you would like to arrange an initial consultation.
Amendments To The Family Law Act 1975
There were a number of amendments made to the Family Law Act 1975 which came into effect on 6 May 2024. For parenting, two major areas of change relate to parental responsibility and time. What has changed for parental responsibility? The amendments have removed Section 61DA, which provided that there was a presumption of equal shared parental responsibility for major long-term issues, with the exception of the presumption not applying if there was family violence. Where the presumption applied, parents were required to come to joint decisions about major long-term issues for their child/ren under Section 65DAC (which has also been removed). Section 61C remains, which provides that, subject to a Court Order saying otherwise, each parent has parental responsibility for their child/ren. The section has been amended to remove reference to the previous section 61DA. Section 61D has been amended to include sub-paragraph (3), which provides that the Court can make an Order to allocate parental responsibility for major long-term issues as joint or sole decision-making. There has been an inclusion of Section 61DAA, which provides that if there is an Order for joint decision-making on major long-term issues, the parents are required to:- Consult with each other about decisions to be made; and Make a genuine effort to come to a joint decision. In the absence of an Order dealing with parental responsibility for major long-term issues, then the new section 61CA applies, which provides that where it is safe to do so, parents are encouraged to:- Consult with each other about major long-term issues; and In consulting with each other, have regard to the best interests of their child/ren as the paramount consideration. The take away from the amendments is that, where safe to do so, there is still an obligation on parents to consult with each other about major long-term issues for their child/ren and make decisions in the best interests of their child/ren. For decisions that are not major long-term issues, Section 61DAB has been added, which provides that there is no need for parents to consult with each other about matters that are not major long-term issues. What do the changes mean for current Orders which provide for equal shared parental responsibility? The amendments do not affect current Orders which provide that parents have equal shared responsibility for major long-term issues, meaning that parents subject to such an Order are still required to make joint decisions about major long-term issues. What about time arrangements? Section 65DAA has been removed, which provided that where there was equal shared parental responsibility for major long-term issues, the Court was required to first consider an equal time care arrangement and whether it was in the best interests of the child/ren and reasonably practicable; if not in the child/ren’s best interests or reasonably practicable, the Court was required to consider “significant and substantial” care arrangements. There has not been any inclusion of a specific section to replace the previous section 65DAA or set out a framework for consideration of care arrangements in terms of time. The effect is that the Court will be required to consider each case based on the facts and apply the “best interests” principles to determine what care arrangements to order. Section 60CC continues to detail consideration for what is in the best interests of children. This section has been amended so that the list of considerations has been condensed into a shorter list. These considerations are:- Promotion of safety for the child/ren and each person who has care of the child/ren; Views expressed by the child/ren; Developmental, psychological, emotional and cultural needs of the child/ren; Capacity of carers to provide for the needs of the child/ren; Benefit of the child/ren having a relationship with the child/ren’s parents and other persons significant to the child/ren; Any other relevant matter; The child/ren’s right to enjoy their Aboriginal or Torres Strait Islander culture. What do the changes mean for current Orders which provide for equal time arrangements? The amendments do not affect current Orders and the time arrangements pursuant to those Orders, meaning that time arrangements for child/ren are to continue in accordance with current Orders. Can Orders be changed? There has been inclusion of Section 65DAAA, which provides that where there are current Orders, a Court cannot look to make new Orders unless there has been a “significant change in circumstance” and it is in the best interests of the child/ren that the Court considers making new Orders. The inclusion of Section 65DAAA is to essentially include in the legislation the law that already applied under the decision of Rice & Asplund. Need advice? Our Family Law Team can provide you with comprehensive and specific advice about parenting matters. Contact our Family Law Department, if you would like to arrange an initial consultation.