May 6, 2020 /

Coming to see a solicitor means there a usually a specific problem or situation that client’s want resolved. Recent feedback to our Senior Family Lawyer, Sarah Galvin, highlights how important it is for clients to receive the advice that they need.

“Dear Sarah, Thank you for your clear and concise answer to my problem, you have indeed eased my conscience” R

If you have a family law situation which you need help with, and want clear, personalised advice as to the best way forward for you in your situation, please don’t hesitate to contact our family law solicitors on 5576 9999 or through our social media.

COVID conundrums

COVID conundrums
April 30, 2020 /

Consideration needed on the question of ‘presence’

It seems that no matter how fast I type, I can’t match the speed with which things are changing as a
result of COVID-19.

At the time of writing, succession lawyers are grappling with how we might address the issues thrown up where there is a legislative requirement for witnessing and for it to occur ‘in the presence of’, particularly with respect to affidavits, wills, powers of attorney, advance health directives and superannuation binding death benefit nominations.

In the COVID-19 crisis, the limitations to executing these documents in accordance with the current legal requirements has created a substantial, if not in surmountable, barrier to solicitors carrying out client instructions. The situation is exacerbated by the fact that our clients typically fall into the high-risk category, and by the withdrawal of Justice of the Peace services from the community, and self-isolation and sanitisation restrictions.

As a result, ordinary citizens are being denied some of their most basic legal rights to make decisions in advance on their medical care and thereby safeguard their affairs. Why is this happening?

In Legal Services Commissioner v Bentley [2016] QCAT 185 (Bentley), the parties accepted that the term ‘present’ meant physical presence, with minimal discourse on the term. The practitioner, Mr Bentley, took an affidavit via telephone while his client was overseas, and that affidavit was filed with the court.

The commissioner’s position was that “Rule 432 of the Uniform Civil Procedure Rules 1999 (Qld), makes it clear that an affidavit must be signed by the person making it ‘in the presence of’ the person authorised to take the affidavit”1 and that presence required physical presence.2

Accordingly, the taking of the affidavit over the telephone did not meet that requirement for presence.3 While the tribunal found the submissions of both parties were not dissimilar,4 Mr Bentley did submit that, in a modern environment, there is scope for a broader interpretation of ‘presence’.5

Unfortunately, that submission was not explored in the judgment. One might posit that the missing element in Bentley’s case was that he could not see the client or the document which was being executed. So, what if he could see the execution? That therefore raises the question of whether remote or videoconference witnessing would fall within the term ‘presence’.

Witnessing is a separate act to other acts typically associated with documents, such as the taking of an oath, the giving of evidence in a court, or the assessment of capacity.6 These important legal tasks can be undertaken through the use of technology, typically via video-link facilities.7

Some might argue that these tasks are of higher orders of importance than the verification of a signature. The object of witnessing is to minimise fraud on the document by ensuring that the person signing is who they say they are and to safeguard the integrity of the document. Yet, the integrity of a document and the identity of the person both can now be readily secured and validated by technology at an exceptionally high level of certainty, in most cases more so than by the currently accepted norms of witnessing a signature.

In Bentley the tribunal indicated there may be scope for a more modern approach by observing “that the requirements arising from the words used in the jurat have not been judicially considered and involve the type of concept which may change over time depending upon the way in which technology and communications develop”.8

Since then, technology, much like COVID-19, has rapidly and exponentially evolved. Australian legislators have recognised this through the enactment of the Electronic Transactions Act 1999 (Cth) and its state and territory counterparts (ETAs).9 Critically however, court documents\and witnessing of documents are specifically excluded10 from this forward-thinking legislation. This means that the ETAs cannot presently be used to permit remote signing and witnessing of wills, powers of attorney or affidavits for filing in court.11

Nevertheless, in some instances, the courts are trying their best to work around the limitations. For example, at the time of writing the Supreme Court of Queensland undertook an informal will s18 Succession Act application entirely by telephone in which my firm, Robbins Watson, was a party.12

Conversely, the Supreme Court of the ACT in the matter of Talent v Official Trustee in Bankruptcy & Anor (No.5) [2020] ACTSC 64 (Talent) determined to vacate the final hearing date on an application for a family provision and maintenance application as a result of COVID-19 related concerns, yet citing as its primary reason the perceived limitations of a hearing by video.

A number of the parties in the matter, on both sides, were in the high-risk category for COVID-19, including one counsel who resided in Queensland and could not travel. As a result, an application was brought to adjourn the final hearing.

The respondent submitted that the hearing could proceed “with the use of video link and telephone connections”.13 The court rejected that proposition on the basis that “litigants have a right to appear in court to not only give evidence but also to observe the running of their case. This will involve providing instructions, sometimes very promptly. There is no doubt that many procedures within a
litigated case can be effectively conducted through remote forms of communication. However, I think there can be an important distinction with a final hearing.”14

While the court determined that other significant factors of serious consequence formed part of the decision to vacate the final hearing date,15 it is difficult to reconcile that court’s reasoning as to the conduct a hearing through the use of technological means when other courts are more readily embracing technology.

By way of further example, in the matter of vJKC Australia LNG PTY LTD v CH2M Hill Companies LTD [2020] WASCA 38,16 the Court of Appeal dismissed an application to adjourn the appeal hearing. Again, the matter involved COVID-19-related concerns, however the primary submission was prejudice to the parties in conducting an appeal hearing by telephone. 

Similar concerns were raised by senior counsel in this matter that were referenced in Talent. In denying the application to adjourn the appeal hearing, the court rejected the submission that the parties “were ‘entitled’ to have a normal hearing”,17 rather “[p]rocedural fairness requires that a party be provided with an adequate
opportunity to properly present its case. The court’s experience is that, having regard to the other practices and procedures in the Court of Appeal, the conduct of an appeal hearing by telephone provides for comprehensive and considered dialogue and debate between bar and bench as to the issues raised by the appeal. It is not the case that an appeal hearing by telephone is manifestly inadequate or that an appeal
hearing by videolink is inadequate.”18

The exclusion of court documents and witnessing from the Electronic Transactions (Queensland) Act 2001 (Qld), coupled with the divergence in approaches by the courts to the use of technology and the current jurisprudence around the term ‘presence’ demonstrates there is currently no universal legally valid way to solve the problem.

Our legal system is grinding to a halt with the necessary restrictions in place to address the current health crisis, with that we ought not lose sight of the maxim that “justice delayed is justice denied”. Now more than ever we need a response that takes into account how things are, the available technology, including the emergency and uncertainty caused by COVID-19.

The task of our legislators is to make our legal system work, and work in the environment in which we live, to ensure we can pursue our legal rights in a timely and efficient manner. The technology exists for us to be able to action our legal rights in this crisis and it is incumbent on our legislators to address this immediately.

Technology currently exists to ensure protections sought, including ensuring the integrity of a document, the identity of a person, the giving of evidence and so on. It is clear, however, that legislative intervention is required to recognise those technological solutions and allow them to be used to address modern-day problems. 

Immediately this crisis occurred, numerous jurisdictions were quick to recognise the issue and take real and effective steps to rectify the unnecessary limitations. 

On 25 March, New South Wales passed its legislative power to create regulations.19 On 7 April, the Canadian province of Ontario passed an Order in Council permitting virtual witnessing of wills and powers of attorney.20

On 16 April, New Zealand similarly did so21 and, then on 22 April, New South Wales passed its  regulations.22 Granted, late in the evening of 22 April 2020, the Queensland Parliament finally passed the COVID-19 Emergency Response Bill 2020, enabling regulations to be made.23 However, Parliament did not pass any regulations and, at the time of writing, none exist. 

No clear solutions have been identified. We remain in legal limbo, with piecemeal work-arounds. For example, the Supreme Court, responsive to our concerns and quick to act, published on 22 April 2020, Practice Direction Number 10 of 2020 to provide some relief for informal wills. But that does not address the myriad of other important estate planning documents, especially enduring documents.

In ordinary times, the average number of deaths in Queensland is around 33,000 a year.24 In 2017, the Attorney-General announced at the March QLS Symposium that amendments to the 1973 Trusts Act would be tabled. We are still waiting for that, three years after that announcement and some seven years after the Queensland Law Reform Commission recommended the enactment of new trusts legislation to replace the current Act.25

For every one of those 33,000 Queensland deaths, a trust is created. Surely that sobering figure of itself is sufficient to prioritise these estate planning issues, without the impetus of a global pandemic?

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law) – Qld, a QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the Proctor Editorial Committee, STEP and Deputy Chair of the STEP Mental Capacity SIG Committee.

1 Legal Services Commissioner v Bentley [2016] QCAT 185, at [19].
2 At [20].
3 At [16].
4 At [33].
5 At [29].
6 Medical appointments and diagnosis are frequently undertaken by video and through the use of other
technologies; see
7 Supreme Court of Queensland Practice Direction No.1 of 2008, Taking evidence by telephone and video link; Supreme Court of Queensland Practice Direction No.4 of 2014, Criminal Jurisdiction: Supreme Court. See also ‘Practice Note for Queensland practitioners taking Will and Enduring Power of Attorney Instructions during COVID-19’ at
8 At [38].
9 See ‘Electronic Contracts and Signatures’ presented by Andrew Smyth on behalf of QLS, the August
2019; ‘Signatures in a digital age’, by Andrew Smyth Proctor, December 2012.
10 See Electronic Transactions (Queensland) Act 2001, Schedule 1.
11 Contrast with New South Wales which recently passed NSW COVID-19 Legislation Amendment
(Emergency Measures) Act 2020 No.1, which amends the NSW ETA to allow for wide-ranging extensions to
the acceptable uses of electronic signatures. 
12 As are many firms nationwide undertaking court appearances, civil and criminal applications and trials
through the use of technology, including video link.
13 At [11].
14 At [14].
15 The court postulated that the likely outcome would be the house in which the applicant was living would
have to be sold and in the current environment that posed a risk to the applicant. See [15-17].
16 My thanks to QLS Ethics Solicitor Shane Budden for bringing this case to my attention.
17 At [7].
18 Ibid.
19 Electronic Transactions Act 2000 No 8
20 Ontario Regulation Made Under The [Bilingual) Reg2020.0240.E 5 Emergency Management And Civil
Protection Act Order Under Subsection 7.0.2 (4) Of The Act- Signatures In Wills And Powers Of Attorney
21 Epidemic Preparedness (Wills Act 2007—Signing and Witnessing of Wills) Immediate Modification Order
22 Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 under the
Electronic Transactions Act 2000
23 See section 9

Should you wish to download a copy of this article please click HERE.

Federal Government Releases Mandatory Code of Conduct for Commercial Leases

Federal Government Releases Mandatory Code of Conduct for Commercial Leases
April 8, 2020 /

Federal Government Releases Mandatory Code of Conduct for Commercial Leases

In response to the economic impact on small businesses as a result of the COVID-19 pandemic, the Federal Government has released a mandatory Code of Conduct to apply to all commercial leases. The respective States will have to introduce legislation in line with this Code.

The Code doesn’t apply to residential tenancies. These are to be dealt with by the State Governments.

The objective of the Code is to minimise in a proportionate manner the financial risk and cashflow impact on both landlords and tenants. In particular, the Code will apply to all tenants who are eligible for the recently introduced JobKeeper payments, and the level of rent relief will be consistent with the tenant’s reduction in turnover as assessed when applying for the JobKeeper payments.

The overarching principles of the Code are:

  1. Landlords are not to terminate leases due to non-payment of rent during the COVID-19 pandemic period or a subsequent reasonable period of recovery.
  2. Tenants must otherwise abide by their leases, and failure to do so will disqualify them from protection under the Code.
  3. Landlords must offer tenants proportionate reductions in rent payable in the form of waivers and deferrals, based on the reduction in the tenant’s trade.
  4. Complete rental waivers must make up at least 50% of the agreed rent reduction, and the balance of the reduction can be dealt with by way of rent deferrals. Such deferrals must be amortised over the balance of the lease term, or for a period of 2 years, whichever is the greater, unless otherwise agreed by the parties. If there is only a short time left to go on a lease, the tenant should be given the opportunity to extend the lease for a period equal to the deferral period.
  5. Landlords should share with the tenant any benefit they receive due to deferral of loan payments, or reductions in statutory charges such as land tax and council rates.
  6. Interest is not to be charged on any agreed rent waivers or deferrals.
  7. Landlords must not draw on any bonds or other securities for non-payment of rent during the period of the COVID-19 pandemic or a subsequent reasonable recovery period.
  8. There is to be a freeze on rent increases for the duration of the COVID-19 pandemic or a subsequent reasonable recovery period.
  9. Landlords are not to impose any penalties where a tenant reduces opening hours or ceases to trade due to the COVID-19 pandemic.

The parties are to negotiate in good faith to achieve mutually satisfactory outcomes.

Should you wish to download a copy of this article please click HERE.

Dying to help others – Organ and tissue donation in Australia

Dying to help others – Organ and tissue donation in Australia
March 31, 2020 /

Recently I was in Washington DC listening to a discussion on longevity.

The debate was about how we view ageing and the probability that with advances in technology we could comfortably live beyond 100, with some suggesting that living up to 200 years was readily achievable. 

To those commentators it was simply a matter of treating ageing as an illness, not an inevitability. That discussion had my mind turning to the practice of organ donation. 

At any one time, in Australia, there are about 1400 people on a transplant waiting list. One donor has the potential to prolong up to 10 lives that might otherwise by shortened through illness or disease.1

Typically, clients approach estate planning from the perspective of leaving a lasting financial legacy. But what if there was another form of legacy we could leave? The gift of enhancing, if not prolonging, another’s life through organ/tissue donation?

In Australia, human tissue (which includes organs) donation is governed by a two-tiered legislative process at federal and state level. Federally, the Organ and Tissue Authority (OTA) is established under the Australian Organ And Tissue Donation And Transplantation Authority Act 2008 (Cth). The object of the authority is the formulation of policy and protocol for tissue donation. It also creates standards designed to “support and encourage” their implementation. The National Organ Donor Register was created under this legislation. 

However, the Commonwealth does not have the power to regulate the donation and extraction process. That is entirely within the purview of the states and territories, with each having enacted a legislative scheme governing the process.2 Each is similar in effect, but some significant  differences are discussed below.

So what parts of the human body can be donated? Any part that fits within the definition3 of tissue.

In Queensland, under the Transplantation and Anatomy Act 1979 (Qld) (TAA), tissue is defined as “an organ, blood or part of a human body or a human fetus; or a substance extracted from an organ, blood or part of a human body or a human fetus”. 

“That it will never come again is what makes life so sweet.”
 -Emily Dickinson

Note, that while the definition of tissue includes blood, blood transfusions are dealt with separately to other tissue under part 2, division 4 of the TAA.4 

Further, “regenerative” and “non-regenerative” tissue are distinguished from each other. The former is the tissue that, after injury or removal, is replaced in the body of a living person by natural processes of growth or repair. This article is concerned with the transplantation of non-regenerative tissue on death.

The tissue removed from a deceased person can only be used for:

  • transplanting to the body of a living person
  • for other therapeutic purposes, or
  • for other medical or scientific purposes.

Before any donation can be undertaken, there must first be a deceased body from which the extraction can take place. 

So how do we legally define death? How is a person who appears to be alive, but is ‘brain dead’ classified? When can organs be harvested from a brain-dead person?

A person is considered to be legally dead when there is an irreversible cessation of circulation of blood in the body of the person or irreversible cessation of all functions of the brain of the person. The determination of brain death must be certified by more than two medical practitioners, one of whom must be a specialist neurologist or neurosurgeon. Each of the medical practitioners must carry out an examination of the donor body prior to such a declaration. Further the declaring medical doctors cannot be the deceased’s attending medical doctor or the designated officer who gives authority for removal or the medical doctor who is proposing to remove an organ from the deceased donor.

Once death is established, who can provide the requisite consent to extract the organ/tissue?

In Queensland, the TAA expressly provides that where a deceased person has executed written consent to the removal, after their death, of tissue from their body for any of the abovementioned purposes and that consent has not been revoked by them, the removal of tissue from their deceased body in accordance with their consent is authorised. However, if the deceased’s death is a reportable death, the coroner’s consent must be obtained before the hospital can proceed.

Note, that in all other jurisdictions, when a person has died in a hospital or whose dead body has been brought into the hospital, a designated officer of the hospital can authorise the removal of organ/tissue from the body if the designated officer can conclude that the potential donor has
provided consent in writing to the removal of tissue from that person’s body and that consent has not been revoked. The designated officer can only make such authorisation after making “reasonable inquiries in the circumstances”.

So what happens if the deceased has not provided any signed written consent and there is no known standing objection by the deceased to donation? 

Then who can give the consent? In Queensland it is the “senior available next of kin”, who is defined as follows:

a. In relation to a deceased child, the first of the following persons who in the following order of priority, is reasonably available: 

  • i. the spouse of the child
  • ii. a parent of the child
  • iii. a sibling, who has attained the age of 18 years, of the child
  • iv. a guardian of the child; and 

b. in relation to any other person, the first of the following persons who, in the following order of priority, is reasonably available: 

  • i. the spouse of the person
  • ii. a child, who has attained the age of 18 years, of the person
  • iii. a parent of the person
  • iv. a sibling, who has attained the age of 18 years, of the person.

In Queensland, ‘sibling’ includes biological siblings, adopted siblings, a sibling by surrogacy, stepbrothers and sisters, and anyone who is regarded as sibling under Aboriginal tradition or Island custom or any cultural custom.

In Queensland, ‘spouse’ includes de facto spouse.5 In New South Wales, Queensland, Tasmania, Victoria and Western Australia, the consent is effectively an ‘opt-out’ system. The designated officer of the hospital can authorise retrieval if the senior available next of kin gives consent in writing. In Queensland, if it is impractical for the consent to be given in writing by the senior available next of kin, they may consent orally. The designated officer must record the fact of the giving of consent, noting it in the deceased’s hospital records as soon as practical after oral consent is given. The designated officer must also make reasonable efforts to have the consent confirmed in writing by the senior available next of kin.

In Queensland, if there are more than one senior available next of kin with the same seniority, an objection from any one of them will be sufficient to constitute an objection to removal, despite the intentions of others.

However, in Victoria, when there are more than one senior available next of kin, the consent of the any of them is sufficient, notwithstanding the contrary views of other kin. 

In the ACT, Northern Territory and South Australia, it is an opt-in system. There, the designated officer can, in writing, authorise the removal of tissue if after reasonable enquiries neither the deceased nor the senior available next of kin object to the removal of tissue.

If a person who dies within the jurisdiction of Queensland has recorded in their will their intention/consent to tissue removal for transplanting or for therapeutic, medical or scientific purposes, hospitals are automatically authorised to remove tissues from that person for that purpose. In all other jurisdictions, a designated officer of the hospital must make reasonable inquiries and authorise the removal.

If a person is a registered donor on the Australian Organ Donor Register, the medical practitioner must inform the deceased’s family members of the registration. If the deceased’s body is in a hospital, the designated officer will consult the senior available next of kin as to whether the deceased has changed their mind since registering and if there is any change of circumstance that would have caused the deceased to change their mind. If not, then removal of tissue is authorised.

In Queensland, where the deceased does not pass away in a hospital or their body was not taken to a hospital, a senior available next of kin may, in writing, authorise the removal of tissue, but only if there is no known objection either by the deceased or a more senior next of kin. If the deceased has consented by signed writing, removal is automatically authorised, but if the deceased’s death is a reportable death, the coroner’s consent must be obtained. 

Under the TAA, it is an offence to provide false or misleading information in relation to the donation of tissue. The maximum penalty is 200 penalty units or two years’ imprisonment. It is also an offence to remove tissue from a deceased person without sufficient authority.

Any unauthorised buying or selling of tissue is prohibited under section 40 and section 42 of the TAA. Any contract to sell human tissue is deemed void. Furthermore, any advertisement related to buying human tissue is prohibited. However, a person who owns a tissue bank is allowed to be reimbursed for their costs in relation to removing, evaluating, processing, storing or distributing donated tissue. Such a person is also allowed to advertise, sell or buy tissue at a cost-recovery amount.

Finally, while consent may be provided, the hospital is not under any duty to collect a person’s tissue. The scheme is designed to be sensitive to all concerned. Identifying or obtaining consent in time can be difficult. If tissue is to be successfully transplanted, harvesting must be conducted within very short time frames after death. Family members dealing with a sudden and traumatic death of a loved one, understandably, are often slow to make decisions about tissue harvesting.

The National Health and Medical Research Council ‘Ethical practice guidelines’ recommend that the request for donation should be abandoned if family members object and that objection is not likely to be resolved quickly, and donation will cause distress to the family members.

In our estate planning practices it is easy to focus on the financial aspects of a person’s estate. Yet I have found that, when asked, many clients have thought about (and often have strong views about) organ donation. Most, though, are unsure how to go about it. Having arranged their estate plan to assure the welfare of their loved ones, it is uplifting to help them make a gift to society generally – the gift of life. 

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law) – Qld, QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the QLS Specialist Accreditation Board, Proctor Editorial Committee, QLS Succession Law Committee and STEP. The author thanks Andrew Smyth and Billy Duane for their research assistance in the preparation of this article.

2 They are as follows:
Transplantation and Anatomy Act 1979 (Qld) (TAA).
Transplantation and Anatomy Act 1978 (ACT).
Human Tissue Act 1983 (NSW).
Human Tissue Act 1982 (Vic.).
Human Tissue Act 1985 (Tas.).
Transplantation and Anatomy Act 1979 (NT).
Transplantation and Anatomy Act 1983 (SA).
Human Tissue and Transplant Act 1982 (WA).
3 Definitions provided here are from Queensland legislation unless otherwise specified.
4 Other state and territory legislation excludes blood from the definition of tissue.
5 Section 32DA Acts Interpretation Act.

Should you wish to download a copy of this article please click HERE.

Conveyancing news: Physical settlements of purchases and sales of real estate are being severely disrupted by travel and isolation restrictions

Conveyancing news: Physical settlements of purchases and sales of real estate are being severely disrupted by travel and isolation restrictions
March 26, 2020 /

Conveyancing can be conducted electronically, but unfortunately, despite being available since 2015, most law firms have not adopted the new technology. Those firms are still relying on old system settlements, which still rely on all parties all meeting at once to exchange documents and cheques.

We have noted significant troubles where the parties are still using the old system — these kinds of settlements are being postponed or cancelled.

Robbins Watson have been doing new system, electronic conveyancing since 2015. It is frustrating, and entirely unnecessary, that settlements are falling over because of the slow adoption of the e-conveyancing system by some law firms.

E-conveyancing is faster and more reliable than old system settlements. E-conveyancing has NO ISSUES with settling due to COVID 19 because there is no need for anyone to travel to a settlement – it all happens via computer.

When you choose your solicitor for your next house purchase or sale – ask if they can do e-conveyancing.

Robbins Watson – e-conveyancing experts since 2015

Media Release – Statement from the Hon Will Alstergren

Media Release – Statement from the Hon Will Alstergren
March 26, 2020 /

Chief Justice of the Family Court of Australia, the Honourable William Alstergren, released a statement today to provide guidance in relation to parenting orders and COVID-19. It calls for all parties to act in the best interests of the child and to find practical solutions to arrangements during the course of the pandemic and the current restrictions in place.

Robbins Watson remains open to assist you with your family law matter. Call our office at (07) 5576 9999 to book your 30-minute free consultation in person, telephone or video.

#familylaw #familycourt #lawyer #freeconsultation #legal #chiefjustice #separation


GCDLA Meet the Judiciary

GCDLA Meet the Judiciary
March 6, 2020 /

A number of our solicitors attended the GCDLA “Meet the Judiciary” even this morning. It was wonderful to hear the experiences and wisdom of the Judges we appear before on behalf of our clients.







Meeting with Amanda Delvin

Meeting with Amanda Delvin
March 5, 2020 /

Our family law team were pleased to host a discussion panel about the latest trends and issues that our firm’s client’s might encounter in personal insurance with Amanda Devlin of Agent for Life. It was a dynamic and informative session for everyone involved.








Paternalism v capacity to choose

Paternalism v capacity to choose
February 28, 2020 /

Patriarchy…is a word in modern context that often forms part of a certain expletive phrase.

It is a word that can stir emotions, as was demonstrated by the reactions to journalist Mona Eltahawy when she appeared on the ABC’s Q&A last year. It is certainly not a word we encounter all that often in judgments. Yet a derivative of it – paternalism1 – was a central aspect to a recent ACT guardianship decision involving a capacity assessment: In the Matter of Pari 2 (Pari).

Pari emphasises that our right to make our own decisions includes our right to make choices that others would not make. It affirms that a capacity assessment is not merely evidenced by poor choices with which better educated, psychologically sound, well-meaning and better resourced people do not agree,3 and that the capacity assessment ought not be conflated with a best interests assessment.4 

In Pari, the ACT Civil & Administrative Tribunal (the tribunal) carefully considered the importance of a vulnerable older woman’s right to autonomy, the critical role of close family relationships, and the intersection with the wellmeaning objectives of a number of professionals who sought to protect her from herself, utilising the ACT guardianship legislation. Pari5 is a 73-year-old “non-English speaking woman who needed to communicate through an interpreter”.6 Born in Afghanistan, she moved to Iran 30 years ago. Then, in “2014 Pari and her daughters, Roya aged 52 and Tela aged 48, came to Australia as refugees (Women at Risk Status)”.7 They have a highly traumatic history8 and their experience of life in Australia included “sleeping rough” over a
number of years.9 

Pari and her daughters were close and “extremely dependent upon each other”.10 Leading a peripatetic life, at the time of the matter they were living on the streets of Canberra and were well known to local police.11

An incident occurred which resulted in Pari being admitted to hospital. Two social workers, concerned for Pari’s welfare, “brought an application for the appointment of the Public Trustee and Guardian (PTG) as guardian and manager for Pari”. At the time of the application, Pari was living in the hospital, it seems “because no one ha[d] found a suitable place to which she can be discharged”.12 

The social workers were of the view that Pari was a great risk because of her advanced age and her unwillingness to engage with support and service providers, including housing. A report provided by a Dr Choudhry found Pari was “severely malnourished, very hungry”, had “poor dentition” and had “a lot of skin
damage”…so that she required “full assistance with all her ADLs including showering, dressing, meal set-up and toileting”.

Dr Choudhry stated that “this all points towards advanced cognitive impairment”. 

However, Dr Choudhry caveated his assessment as being “potentially incomplete” as a result of the “language barriers”13.

In reaching its determination to dismiss the application, the tribunal had regard to the criteria of the Guardianship and Management of Property Act 1991 (ACT),14 giving careful consideration to Dr Choudhry’s evidence.15 The tribunal expressed doubt as to the conclusion to be drawn by his evidence and others that Pari probably had “advanced cognitive impairment”.16

The tribunal expressed real doubt that Pari’s “lifestyle and circumstances are a product of impaired decision-making ability”,17 concluding “that how she lives is primarily a function of her lifestyle and ‘situation’ in life, rather than impaired decision making-ability”.18

The tribunal affirmed:

“There is a need for caution about…treating a poor decision as demonstrating lack of insight and poor reasoning and as supporting an inference of a cognitive impairment.”19

The tribunal emphasised that “when making decisions about a person, the views and wishes of the person should receive paramount consideration unless doing so is likely to significantly adversely affect their interests”.

Citing the binding ACT Supreme Court decision in A v Guardianship and Management of Property Tribunal,20 the tribunal affirmed the court’s statement about “the importance of ensuring that the proviso does not override the general rule, and to guard against paternalism or protection overriding individual autonomy”.21

Relying on the decision of Justice Baker of the Court of Protection (England and Wales) in KK v STCC, the tribunal affirmed this statement: “There is, I perceive, a danger that professionals, including judges, may objectively conflate a capacity assessment with a best interests analysis. …I remind myself again of the danger of the ‘protection imperative’ identified by Ryder J in Oldham MBC v GW and PW ([2007] EWHC136 (Fam) [2007] 2 FLR 597). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one.”22

In Queensland, the Guardianship and Administration Act 2000 underscores this statement, by requiring such an assessment to be approached from this perspective: 

“(a) an adult’s right to make decisions is fundamental to the adult’s inherent dignity;

(b) the right to make decisions includes the right to make decisions with which others may not agree.”23

On 1 January this year the Human Rights Act 2019 (Qld) became operative.24 Its objects are set out in section 3. Succinctly, these are to protect and promote human rights, to help build a culture in the Queensland public sector that respects and promotes human rights, and to help promote a dialogue about the nature, meaning and scope of human rights.

The Act ties in its operation with provisions of the Guardianship and Administration and Other Legislation Amendment Act 2019 (GAOLA),25 which are yet to commence. 

GAOLA introduces two different definitions of capacity. The tests are set out in section 41 (1) to define general capacity and a specific definition of capacity to make an enduring document. Section 42(2) contains a list of factors the person must be able to understand.

GAOLA also removes the General Principles and replaces them with new principles which are more closely aligned with the United Nations Convention on the Rights of Persons with Disabilities. Relevantly, the Human Rights Act binds public entities such as hospitals.

Accordingly, a person or entity performing a function will be required to comply not just with this new GAOLA regime26 but also the newly operative Human Rights Act.

Neuroscience is a relatively new discipline27 from which our understanding of cognition and the factors that impact it and the extent to which they impact it is yet to mature. It is therefore understandable that it is difficult for us all, including professionals, to distinguish between impaired decision making and the right to make choices with which others do not agree, regardless of how illogical.

It is made all the more difficult in an environment in which we are just beginning to understand the extent of elder abuse and the influence of others in taking advantage of vulnerable elderly people.

Dr Jane Lonie, in her paper ‘The Cognitive Mechanics of Elder Abuse’, explains that “[a]n understanding of the relationship between cognitive impairment and elder abuse is required to differentiate undue influence from supported decision making and to facilitate the selection of appropriate forms of decision-making support in
cognitively impaired elderly clients”.

Pari stands as a timely reminder of the necessary balance to be struck between a caring and supportive society and the risk of overreach by our institutions in a quest for neat, efficient solutions to complex problems.

Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession law) – Qld, QLS Senior Counsellor and Consultant at Robbins Watson Solicitors. She is an executive committee member of the Law Council Australia – Legal Practice Section, Court Appointed Estate Account Assessor, and member of the QLS Specialist Accreditation Board, Proctor Editorial Committee, QLS Succession Law Committee and STEP.

1 “The term paternalism first appeared in the late 19th Century as an implied critique predicated on the inherent value of personal liberty and autonomy, positions elegantly outlined by Immanuel Kant in 1785 and John Stuart Mill in 1859.” Paternalism by Lindsay J. Thompson. “Paternalism is the interference of a state or an individual with another person, against their will, and defended or motivated by a claim that the person interfered with will be better off or protected from harm. …At the theoretical level it raises questions of how persons should be treated when they are less than fully rational.” Paternalism – Stanford 
Encyclopedia of Philosophy, first published 6 Nov 2002; substantive revision 12 Feb 2017. 
2 In the Matter of Pari (Guardianship and Management of Property) [2019] ACAT 120. 
3 J v Guardianship and Administration Board [2019] TASSC.
4 At [21] citing Justice Baker of the Court of Protection (England and Wales) in KK v STCC.
5 A pseudonym given by the tribunal at [1].
6 At [9].
7 At [3].
8 Ibid.
9 Ibid.
10 Ibid.
11 At [4]-[5].
12 At [5].
13 At [7].
14 At [17]; the provisions are similar to the Guardianship and Administration Act 2000 (Qld).
15 At [17]-[22].
16 At [21].
17 At [22].
18 Ibid.
19 Citing and approving J v Guardianship and Administration Board [2019] TASSC 15.
20 At [25].
21 Ibid.
22 At [26].
23 The Guardianship and Administration Act 2000 (Qld) Chapter 2 section 5.
24 See act-2019-005.
25 With relevant provisions to commence on 30 March 2020. See
26 For a broader analysis of the GAOLA, refer to Mehera Saunders’ paper, ‘Guardianship and Administration and Other Legislation Amendment Act 2019’, changes to powers of attorney/guardianship legislation’ presented
at a Sunshine Coast DLA seminar on 28 January. 
27 ‘The Emergence of Modern Neuroscience: Some Implications for Neurology and Psychiatry’ – Annual
Review of Neuroscience, Vol. 23:343-391 (Volume publication date March 2000) W. Maxwell

Should you wish to download a copy of this article please click HERE.

Putting off property settlement? Now’s the time to get it sorted

Putting off property settlement? Now’s the time to get it sorted
February 27, 2020 /

Has the prospect of paperwork and having another argument meant your property matters still haven’t been sorted out?  Now may be the time to make that financial break from your ex.

Why should I?  a second programme is about to be rolled out from 2 March 2020 targeting property settlements matters. The scheme is again designed to identify, case manage and resolve small property matters in an effort to reduce delay and promote parties “taking ownership of their dispute resolution planning at an early stage”.

Whether you fall under this new scheme or the discrete property list, it is now quicker and easier than ever to get your property settlement.  

What happens if I don’t? Until you formalise your property settlement, you are not yet financially separated from your former partner or spouse. This means that any asset or debts either of you have is usually included in the “property pool” to be divided between you. There are also time limits which apply for sorting out property settlement as well which you don’t want to miss.

What do I need to do? Talk to one of our dedicated family lawyers about how property settlement works, getting it sorted out by agreement or taking advantage of the Court’s new schemes to get it resolved as quickly as possible. Call us on 5576 9999 or message us to book a free 30 minute consultation.

Should you wish to download a copy of this article please click HERE.