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Discretionary Trusts & Rights of Beneficiaries
Is a beneficiary of a Trust entitled to legally privileged trust documents? When presented with this question many good lawyers would at first glance and without thinking it through probably answer “Good question…. The answer is “no”. Others lawyers that are more battled wearied may answer it with a question “Who would win a fight between a lion and a tiger?” which is another way of saying that old chestnut “it depends”. There is no question that nearly all trustees will not want to release anything at all to a beneficiary (particularly if they are estranged, troublesome, and up to no good). The Beneficiaries – who are they? Beneficiaries (commonly in the modern commercial world and in the context of disputes regarding deceased estates) can include:- discretionary (primary and wider beneficiaries) of discretionary trusts; children of members of super funds (they are potential recipients of a death benefit payment – this extends to spouses and those in interdependency relationships – it can also extend to extramarital partners and de facto partners of married members); What documents might a Beneficiary want to see? Often they want to see if any mistakes have been made by a Trustee along the way (to assist them to mount or improve a claim). They will want anything they can get their hands on including:- Financial Statements; Investment Strategies and Trustee Minutes; Investment Advice; Deeds of Variation and Appointment of New Trustee (the full document trail); Pension Documents. Generally, there are two different types of information: trustee information, being information generated or held for the purposes of a trust, and which a trustee would be required to hand over to a replacement trustee; personal information, being information held by a trustee relating to a trust which is personal to the trustee, and paid for by the trustee. There are three ways for a beneficiary of the trust obtaining this information:- the Trustee willingly discloses the information; a superior court (using its inherent jurisdiction) orders it be disclosed; or when litigation is on foot, the documents are disclosed as part of the court disclosure rules. The first category of documents (trustee information) is vulnerable to being disclosed to beneficiaries. The second category (personal information) on the other hand is not, but it may be relevant to issues in litigation and therefore be required to be disclosed in accordance with disclosure rules in the course of the litigation. For both categories, a Trustee may be able to claim privilege to resist disclosure of documents. In the recent New Zealand case of Lambie Trustee Ltd v Addleman https://www.courtsofnz.govt.nz/assets/cases/2021/2021-NZSC-54.pdf it was found that all advice in issue in the proceedings was covered by legal professional privilege so that, against non-beneficiaries, the Trustee was entitled to assert privilege. Importantly though, the Court confirmed that a trustee is not entitled to privilege against a beneficiary of the trust in respect of advice on issues in which the trustee and beneficiary have a joint interest. In this case, the Court found that the Trustee and the Beneficiary had a joint interest in the administration of the Trust and therefore Trustee could not claim privilege in relation to the legal advice obtained by the Trust regarding its administration. If there is bitterly fought out litigation between the Trustee and the beneficiary the position is different. The court said:- “What is required for the joint interest exception not to apply is that the advice be sought for the dominant purpose of defending litigation. Given the obligations of a trustee to act appropriately and in the interests of the trust as a whole, the starting point for the courts should be the assumption that trustees seeking advice in respect of contemplated litigation are looking for guidance as to the right course of action (in respect of which the joint interest exception will apply). And the courts can expect trustees not to seek advice as to how to resist litigation without having first sought advice (to which the joint interest exception will apply) as to the appropriate stance to take on the point at issue.” “The authorities generally support the view that once a beneficiary commences litigation concerning the administration of a trust, the litigating beneficiary is not entitled to disclosure of legal advice received by the trustees in relation to that litigation. The judgments on the point tend to be succinctly expressed but they must proceed on the basis that, from that point, the beneficiary and trustees no longer have a joint interest in the subject matter of the litigation.” To summarise, once litigation had commenced, the trustee and the beneficiary were in competing positions so the “joint interest exception” to privilege would not apply. Beneficiaries and trustees share a joint interest in the due administration of a trust and therefore in legal advice as to that administration. A trustee is not entitled to assert privilege against a beneficiary in respect of advice on issues in which the trustee and beneficiary have a joint interest. Trustees (who must act in good faith at all times) should assume that all trustee information could be disclosed to beneficiaries unless it is created when there is contentious litigation between the trustee and the beneficiary and is for the dominant purpose of that litigation. The same principles discussed in the Lambie Case apply and similar results can be expected in Australia. If you would like assistance with any of the above information, please contact our Wills and Estates team via (07) 4771 5664.
Proposed changes to Queensland Domestic Violence Law: What do these new changes mean?
Over the past five (5) years there has been considerable changes to the Domestic Violence Laws in Queensland. These changes have included significant changes such as allowing the Court to only consider making a cross-order in the most exceptional of circumstances; ensuring that perpetrators of domestic violence are held to account and victims are provided with protection. Further significant changes to Queensland’s Domestic Violence laws are on the way and they pose a significant change to how these matters are now considered by both the Police and the Courts. On 30 April 2025, the Minister for Domestic and Family Violence in the Queensland Government introduced the Domestic and Family Violence Protection and Other Legislation Amendment Bill 2025 which proposes significant changes to the Domestic Violence regime in Queensland. One of the most notable changes is the adoption of the Tasmanian approach by giving Police the power to impose on the spot protection orders, known as Police Protection Direction (PPD’s). This direction is an order which is made by police immediately to alleged domestic violence offenders, for twelve months, without the need to go to Court. Video Recorded Evidence Some of the other significant changes to the law include the expansion of the Video Recorded Evidence in Chief pilot program as state-wide law. At present the current pilot program applies in Ipswich, Southport, and Coolangatta Magistrates Court however the new Bill proposed will expand this practice to Magistrates Courts throughout Queensland. This provision is an expansion of the Evidence Act 1977 (Qld) and allows adult complainants in domestic violence criminal proceedings to give evidence in chief by a video recorded statement. Electronic Monitoring Devices Another new change to the legislation is the inclusion of electronic monitoring of high risk domestic violence offenders. This allows the Court to impose as … Police Protection Directions (PPD) In Queensland the current practice to obtain a Domestic Violence Order requires a person to either prepare and lodge a private application for a protection order, or through a police investigation where an application is sought on behalf of an aggrieved by a Police Officer. A Magistrate will then consider the merits of the application and determine whether or not a final order should be made. This new regime will grant Police the power to issue a PPD Direction when a Police Officer considers that it is appropriate for a matter to not proceed to Court and instead be finalised with an initial PPD. This approach has been in practice in other states such as Tasmania where an authorised officer may issue a Police Family Violence Order (PFVO) for twelve months avoiding the need to obtain a protection order from a Court. This approach to obtain a protection order without the need for a Court to consider the application is a significant change to the current Domestic Violence Laws. One of the main concerns in this approach is the risk of victims being incorrectly identified. When is a PPD not appropriate? To ensure that this risk is significantly minimised the legislation includes a safeguard to prevent misidentification from occurring. The Act achieves this by ensuring that there are certain circumstances in which a protection order can only be considered by the Court. According to Section 100C of the Bill, a PPD will not be available in the following conditions:- Where the Respondent or Aggrieved are identified as a Child; Where the Respondent or Aggrieved are a Police Officer; Where a DVO will recognise interstate orders relating to the parties as enforced or has previously been enforced; Where there is already a PPD against a respondent in force or has been in force; Where the Respondent has been convicted of a domestic violence offence within the previous two (2) years; Where a proceeding for a Domestic Violence offence against the Respondent has started but has not been disposed of; Where an application for a protection order against the respondent has been made but not dealt with, meaning an ongoing protection order; Where the Respondent has used, or threatened to use, an offensive weapon or instrument to commit the relevant domestic violence; and; That in relation to the domestic violence, there are indications that both persons are in need of protection and the person who is most in need of protection cannot be identified – meaning cross-application circumstances. Process for Police to obtain a PPD For an officer to obtain a PPD, they must seek approval from a supervising officer. For a PPD which includes a cool-down condition, the appropriate rank of the supervising officer to consider this must be a Sergeant. When an officer is seeking to obtain a PPD which includes an ouster condition or a no contact condition, they must obtain approval from the supervising officer of at least a Senior Sergeant. Can PPD’s be reviewed or challenged? Under the proposed Bill, there are mechanisms in which these immediate orders can be reviewed. Firstly, there is an ability for Police to review the decision to issue a PPD which is done under section 100T of the Act. This is done where an officer will review their decision if the officer becomes aware of circumstances or reasonably believes there are circumstances that were not known of or considered when the PPD was issued. The Aggrieved, Respondent, and an authorised person on behalf of the Aggrieved and the named person may also apply for a police review of a PPD. This must be done within 28 days of the PDD. Secondly, the Court has the ability to review the decision of whether to issue a PPD. Section 100Z of the Act states that at any time while a police protection direction is in force a person can apply to the Magistrates Court for a review of the direction. When the Court is considering the review of the PPD, this process is not an appeal meaning that the decision from the Magistrate can be ultimately reviewed on an appeal to the superior Court. The Court will consider an application to review the PPD to determine whether or not it is necessary or desirable for the PPD to be made. This consideration is only whether it is necessary or desirable at the time of the review, not at the time the Police issued the PPD. The Court ultimately has the power to set aside the PPD or decide to dismiss the application for a protection notice as a whole. Is this a positive step? The current Domestic Violence regime allows the Court to solely decide applications and whether they should continue. The proposed Bill identifies a streamline approach for Police to be better equipped in handling the high volume of Domestic Violence Cases. This is a positive step in ensuring that victims of domestic violence are protected and perpetrators are held to account. Despite its good intentions, there are concerns about the practicality of the system. The making of a protection order is not a criminal offence, however it can have a significant impact in a professional capacity such as affecting the ability to hold a relevant security clearance, explosives or weapons license (often required in some mining positions), and a working with children blue card. Domestic Violence is a complex issue in our society today, rightfully so it is a serious epidemic which needs to be addressed. At the same time, these situations are highly volatile and there is a lot at stake in these matters. Police have an unenviable position in trying to split the baby with the bath water in identifying domestic violence and protecting victims. The ability for Police to have an expanded role in issuing Protection Order Directions is a positive step but needs to be balanced to ensure that victims are not incorrectly identified, that orders are not made on lightly and ensure that due process is otherwise followed. If you are facing a Police Protection Direction, Police Application for a Domestic Violence Order, or are requiring assistance in obtaining a Protection Order contact our Criminal Law team today. Our team at Connolly Suthers is highly experienced in the area of Domestic Violence Law and we regularly appear in the Domestic Violence Specialist Court to assist clients in this area. A link to the Explanatory notices of the proposed legislation is here:- chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.legislation.qld.gov.au/view/pdf/bill.first.exp/bill-2025-024#:~:text=The%20Bill%20will%20enable%20police,not%20to%20proceed%20to%20court.
From Click to Conviction: The Law on Posting Personal Information Without Consent
Understanding implications of Section 474.17C of the Criminal Code Act 1995 (Cth) It is no surprise that we are well and truly living in the digital age of technology. We live in a time where the internet and social media play a significant role in the way we live our lives as well as improve how we do our jobs. Whether it is from posting, sharing, or tagging each other, one misguided click or ill thought social media post can now put you in position where you can face serious legal consequences. Recent changes to the Federal Criminal Law in Australia, sharing a person’s personal information online without their consent, despite whether or not the content is truthful, can constitute a Commonwealth Criminal Offence. Section 474.17C of the Criminal Code Act 1995 (Cth) criminalises the use of a carriage service (such as the internet, phone, or social media) to make available or publish the personal data of a person in a way that is either menacing, harassing, or offensive. This new criminal offence is the Australian Government’s response to the modern practice of ‘doxing’ which is when a person publicly shares someone’s personal details to shame, intimidate or endanger them. When and Why was this passed? Section 474.17C was included in the Privacy and Other Legislation Amendment Bill 2024, which was a Bill designed by Parliament to introduce a range of measures to protect the privacy of individuals with respect to private and personal information. The Bill expands the Information Commissioner’s powers and, in the context of Criminal Law, to create offences targeting the release of personal data using a carriage service in a manner which would be menacing or harassing. The Minister responsible for the bill in his second reading speech, outlined the growing risks posed by people misusing digital platforms to expose or endanger others, often in a context of domestic disputes. The law is said to fill in the gap where there is no existing offence which deals with the public disclosure of personal information with an intent to harm. What does the offence Criminalise? Under the new provision, a person commits an offence if they:- Use a carriage service (e.g., phone, text, email, social media), To make available, publish, or transmit personal information of one or more individuals, Without the consent of those individuals, In a way that a reasonable person would regard as menacing, harassing, or offensive. Key points are as follows:- Personal information can include names, addresses, phone numbers, workplace details, and more.There is no constraint of the type of the information. The law does not require the information to be true or false, meaning that there is no requirement as to the veracity of the post rather the intention behind it. The offence primarily focuses on the intent and impact of the post and whether the act could cause fear, distress, or reputational harm. The key mental element is that of recklessness and whether you had an awareness that there was a substantial risk that what you post could be regarded as menacing, or harassing despite being aware of the risk. Who can be affected? It is important to note that because it involves a ‘reasonable person’ test there will be a wide disagreement between people as to what will be expected when it comes to privacy and publication of personal information. The rationale behind this offence creates problematic scenarios of what may or may not be criminal conduct because it has a broad application across both personal and professional settings. Conduct may include:- An ex-partner posting someone’s private address online. A former employee leaking client or staff details on social media. A social media user naming and shaming someone in a viral post with identifying details. Even if there is no financial motive, the emotional or reputational fallout—and the reckless disregard for safety—can be enough to trigger a charge. The conduct could even include that of posting information in relevant local Facebook pages identifying someone for an alleged act or conduct. Summary These new provisions show that regardless of what we may intend to post, ignorance will not suffice as a defence to reckless behaviour online. What might feel like a quick post in the heat of the moment could result in serious criminal charges. This new provision is a significant step in addressing inappropriate online conduct and the need to regulate it like any other form of abuse of intimidation. So before you click “post” consider whether it is worth risking a potential criminal conviction. If you have been charged with a Criminal Offence either in Queensland or a Federal Commonwealth Offence it is incredibly important that you get immediate legal advice before speaking to Police. At Connolly Suthers we have a designated Criminal Law team ready to assist you.
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 5664.
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!