Organ donation – opt in or opt out?

Organ donation – opt in or opt out?
July 9, 2019 /

In Australia, you can become an organ donor by registering your wishes with the Australian Organ Donor Register (“opt in”). Even if you have registered, this in itself is not sufficient: family members will be asked, following your death, if you continued to hold your views up to your death and whether they consent to you donating your organs. If they do not consent, then your organs will not be donated.

Although many people agree that organ donation is to be applauded, most do not register. As a result, there are long waiting lists, and unfortunately, some have passed away before receiving their life-saving organ donation.

Several countries, such as Wales, England, Iceland, France and the Netherlands, have changed or are changing their legislation to essentially have an “opt out” system. There, you are presumed to have given your consent to be a donor unless you have opted out. This can also be described as a tacit consent (silent consent).

There are still differences between these countries as there are soft opt-out systems and hard opt-out systems. Some do not even have a register. So, do the next of kin still have a say in what happens with their loved one’s organs? If the system is a “soft opt-out” system, they do. If the system is a “hard opt-out” system, they do not.  For example, France has a “hard opt-out” system where a doctor only has to inform the relatives which organs are to be donated, without actually asking their permission. Spain, on the other hand, has a “soft opt-out” system and ranks highest in organ donations (although it is said that this is not as a result of their legislation, rather than the Spanish being more suitable candidates for organ donation).

Irrespective of what your views are on what the best system is, if you wish to be an organ donor, be sure to discuss it with your family, and your estate planning lawyer, who can ensure that your wish is reflected in your Will.

Australian Organ Donor Register: https://donatelife.gov.au/register-donor-today

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

Adverse Possession? Squatter’s Rights? And More?

Adverse Possession? Squatter’s Rights? And More?
July 7, 2019 /

Is possession really nine-tenths of the law…  Or rather an avoidable issue altogether?

Since the decision of McFarland v Gertos [2018] NSWSC 1629 delivered October 2018, there’s been renewed interest in adverse possession rights, sometimes known as “squatter’s rights”.  But it also serves as a timely reminder that estates ought to be administered promptly, to ensure that the property of a deceased person is transferred to the beneficiaries properly entitled to it under a will or intestacy.

The NSW decision received rather substantial news coverage, especially in comparison to a Queensland decision delivered a month later, in Re: Browne [2018] QSC 297 which again reiterates the importance of promptly administering a deceased person’s estate, rather than putting ones head in the sand in hopes that the matter will never have to be dealt with.  Re: Browne instead dealt with a farming property held by Mr Michael Browne who was born in 1868 and disappearing without any trace in about 1899.  From the time of his disappearance, his property continued to be worked by his descendants who simply treated the property as their own, paying rates and the like.  Despite this, the property remained registered to Michael Browne for the next 119 years.  Sadly, had the estate administration issues been dealt with in a more timely manner (say, 100 years ago!), then the 2018 court application would never have been required.

The Supreme Court of Queensland was asked to issue an order registering the property to Michael Browne’s great-nephew, Francis, as adverse possessor of the property.  Whilst the possibility of adverse possession was considered – and may well could have been applied in this instance – the court elected to bypass the adverse possession issues by reliance on the beneficial interests created by the intestacies and wills of Francis’ predecessors.  This took form in utilising an rarely-used provision of the Land Titles Act, being section 114, which enables the Supreme Court to order the removal and registration of persons from the registered title – so entirely avoiding the issue of adverse possession in this matter. 

So it would appear there’s more than meets the eye when it comes to squatter’s rights, especially where dealing with a long-standing family property.  But still gives credence to the old saying, that possession is nine-tenths of the law…

Saying that, it’s always important for estates to be properly administered.  Had the succession of the property been dealt with in the years after Michael’s disappearance – as opposed to more than 100 years later – then the legal saga above likely could have been avoided and the property dealt with by ordinary inheritance procedures.  The applicant was very lucky in that it was possible to trace the chain of beneficial entitlements in his relatives’ estates, to establish his interest, and that he was able to marshal the evidence in support of his claim to the property.  If he hadn’t been able to do so, the applicant may have been put to proof of his claim for adverse possession – and so incurred greater costs in establishing that claim.

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

Gold Coast Central Chamber of Commerce luncheon at Cucina Vivo, The Star Gold Coast

Can't we all just get along – Break-ups, Real Estate and Representatives

Can't we all just get along – Break-ups, Real Estate and Representatives
June 27, 2019 /

Although there can be many unpleasant aspects of a break-up, selling a jointly owned matrimonial home can be a difficult task. It can also be troublesome for practitioners. In the recent disciplinary proceeding of Legal Services Commissioner v Sheehy [2019] 1 Qd R 541, Sheehy was reprimanded and fined for unsatisfactory professional conduct by failing to acknowledge the significance of joint instructions. 

A former husband and wife had obtained orders from the Family Court of Australia for jointly-owned land to be sold. A contract of sale was signed.  Sheehy acted for the wife, while another solicitor “Welsh” acted for the Husband. Due to complications, the settlement date was extended multiple times.  

On the rescheduled settlement date, another extension was sought. The Husband denied the request and terminated the contract. In spite of this, Sheehy advised the Buyer’s solicitor that the wife was able to settle. Settlement proceeded and the money was paid to Sheehy’s trust account. The Buyer’s solicitor attempted lodging the transfer document but was prevented from doing so by a caveat lodged by the Husband. Ultimately, the money was returned to the Buyer and the property was re-sold. The court provided Sheehy with some handy tips:

  • – Where sellers hold the property as joint tenants, neither party can perform the contract without the other;
  • – As settlement could not occur on the specified date, there was an actual fundamental breach by the buyer, and the Husband was autonomously entitled to terminate; 
  • – A reasonably competent legal practitioner would have known or ascertained that the wife was not entitled to take steps to complete the contract over the objection of the former husband.

Sometimes we can’t all get along, but practitioners should do their best to try. 

Further Reading: Legal Services Commissioner v RB Sheehy [2017] QCAT 276 (Original decision); Lion White Lead Ltd v Rogers (1918) 25 CLR 533, 551; Carringville Pty Ltd v The Gatto Group Pty Ltd (2003) 11 BPR 98031

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

Do your homework before picking Bob the Builder!

Do your homework before picking Bob the Builder!
June 21, 2019 /

Often people sign building contracts without getting any legal advice or doing their due diligence. (I know my husband would have if I wasn’t a lawyer when we recently built our first home last year) Everyone assumes it is a standard contract regulated by the Queensland Building and Construction Commission (QBCC), but what about the 300 page off-the-plan contracts for land and build packages??? Answer – they often do not use the standard contract.

As recently seen in multiple reports in Sydney, newly built high-rise apartments (off-the-plan) often have more structural issues and risks than a 20-year-old home or apartment.  For example, Sydney’s Opal Tower and Mascot Apartments are only 2 of many new developments that have left owners with uninhabitable properties in the middle of a booming CBD. In the Opal Tower situation, it was recently after the statutory warranty expired that the building began to crumble, conveniently the builder and developer had gone AWOL leaving the insurer with a $3million claim for defects.

To avoid dodgy builders or developers, you can do the following: –

– Do a free QBCC license search (this will show any claims/disputes/disciplinary records) http://www.onlineservices.qbcc.qld.gov.au/OnlineLicenceSearch/VisualElements/SearchBSALicenseeContent.aspx

– Get independent pre-contractual legal advice;

                   * Do court searches on company and directors

                  * Order a full body corporate/strata disclosure (this will show all minutes of meetings,                              raised defects and financial records)

– Ensure you have seen a completed project, so you know the quality of the workmanship.

– Have an independent building inspection completed prior to handover/last progress payment or settlement.

If you are looking at building your first home or buying into an off the plan development, please call our office 07 5576 9999.

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

Sunny Side Up and a Taste of Testamentary Freedom

Sunny Side Up and a Taste of Testamentary Freedom
June 20, 2019 /

Often people sign building contracts without getting any legal advice or doing their due diligence. (I know my husband would have if I wasn’t a lawyer when we recently built our first home last year) Everyone assumes it is a standard contract regulated by the Queensland Building and Construction Commission (QBCC), but what about the 300 page off-the-plan contracts for land and build packages??? Answer – they often do not use the standard contract.

As recently seen in multiple reports in Sydney, newly built high-rise apartments (off-the-plan) often have more structural issues and risks than a 20-year-old home or apartment.  For example, Sydney’s Opal Tower and Mascot Apartments are only 2 of many new developments that have left owners with uninhabitable properties in the middle of a booming CBD. In the Opal Tower situation, it was recently after the statutory warranty expired that the building began to crumble, conveniently the builder and developer had gone AWOL leaving the insurer with a $3million claim for defects.

To avoid dodgy builders or developers, you can do the following: –

– Do a free QBCC license search (this will show any claims/disputes/disciplinary records) http://www.onlineservices.qbcc.qld.gov.au/OnlineLicenceSearch/VisualElements/SearchBSALicenseeContent.aspx

– Get independent pre-contractual legal advice;

                   * Do court searches on company and directors

                  * Order a full body corporate/strata disclosure (this will show all minutes of meetings,                              raised defects and financial records)

– Ensure you have seen a completed project, so you know the quality of the workmanship.

– Have an independent building inspection completed prior to handover/last progress payment or settlement.

If you are looking at building your first home or buying into an off the plan development, please call our office 07 5576 9999.

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

What is the difference between a specialist and an Accredited Specialist?

The Court's Family Violence Plan is a Welcome Step in the Right Direction

The Court's Family Violence Plan is a Welcome Step in the Right Direction
April 23, 2019 /

The breakdown of a relationship is always difficult and stressful even in the most amicable of separations. When family and domestic violence is present, leaving the relationship is the time when those abused are most at risk of harm. Frequently the abusive behaviours carry on long after the parties have left the relationship, particularly when children are involved, which require a parent to have an ongoing connection with their abuser for years to come.

Although individual state and territory courts have addressed the impact and safety of family and domestic violence victims with increasingly stringent protection orders, the issue has not been given the same the attention by the Commonwealth Courts in family law proceedings until now.  The release of the Court’s new Family Violence Plan is a welcome step in the right direction by acknowledging the close connection between family breakdowns, violence, and the continuing impact it has on both adults and children alike.

With violence against women costing an estimated $22 billion a year to the Australian economy,[1] increased action is essential as this figure will only continue to rise exponentially if not addressed. The emphasis of the Family Violence Plan is to ensure a practical, effective and achievable priority in the Courts’ protection of children and their families from family violence and its associated harms, both in and out of court.

Separation is seldom the end of abuse. Perpetrators often use court proceedings as a way to further control and harass their victims throughout the progression of their matter in the Federal Circuit Court and Family Court. By engaging in a multifaceted approach, the Court hopes to effectively address and better understand the cause, dynamics and effects of family and domestic violence in family law proceedings.

The Plan builds on and updates the Family Violence Plan 2014-16 by providing a restructured continuing commitment to addressing family violence in all areas of the court’s operation. The Plan sets out three priority areas: family violence; safety at court; and information and communication. Each area has a number of defined goals, identified actions and require regular or ongoing activity.

Within the Court itself, the attention of protection from family violence starts with a review and update of the Family Violence Best Practice Principles, a document designed to assist judges, legal practitioners and litigants to better understand legal requirements in matters which family violence is alleged. The Principles are to be used in all areas of the operational and administrative processes.  

Ongoing training and development of staff is to be facilitated to enhance awareness and capability in addressing family violence issues including an understanding of issues unique to particular communities. Inter-agency cooperation, collaboration and information sharing is emphasised between the Court, and outside resources including state and territory courts, police and child protection agencies about existing family law orders.  

Every aspect of the Court is to be evaluated and monitored. The internal workings, processes and practices of Courts, even the physical layout of each court building, is to be addressed to ensure that the Court is a safe space for all users.

Those users who are at risk of experiencing family violence will have ready access to information about how the courts can assist and effective referrals where they can seek help and counselling. Intergenerational education on what qualifies as abusive behaviour is critical. Victims often are exposed to abuse throughout their lives and this is their normal. Learning to recognised what is acceptable behaviour in the home and what a respectful relationship should look like may assist in breaking the cycle of abuse. 

The Court realises that although all stakeholders may have a common goal, in the past the approach has not been a coordinated one. Without collaboration, gaping holes will continue to remain in the system leaving those most at risk, especially children, to fall through the cracks.

To their credit, the Courts commitment has not only recognised those faults but has established achievable goals to promote overall safety by considering the issues and effects of family and domestic violence in family law proceedings. If successful, this shift in focus will be reflected in the family law orders being made by the Court and eventuate in the long-term safety of children and their families.  

If you or someone you know is affected by Family and Domestic Violence please call our Family and Domestic Violence expert Linda Miller for a confidential consultation on (07) 5576 9999.

If you want to download a copy of this article, please click here!

[1] (Source:- KPMG. (2016). The cost of violence against women and their children in Australia. Canberra: Department of Social Services. Retrieved from: https://bit.ly/2wzVWxC)

DEBT & DOMESTIC VIOLENCE

DEBT & DOMESTIC VIOLENCE
February 5, 2019 /

DEBT & DOMESTIC VIOLENCE: Financial Abuse & the Shifting of Debt Through Family Court Orders

Family Law matters are, by their very nature, deeply distressing.  Imagine though how that angst escalates, when in the midst of your family break down you are subjected to the wrath of the Taxation Department seeking to pit its authority and power against the Family Court, in the High Court!  It is a power struggle not even the best “Suits” writers could script. 

Nevertheless, this is precisely what happened in the recent decision of Commissioner of Taxation v Tomaras[1] Now of course the decision raised a cacophony of commentary from all manner of Family and Taxation Law experts, on social media, professional publications and the like.  Properly, much of the commentary and analysis was around the key issue of whether the Family Court has the jurisdictional authority to order the ATO to transfer a party’s taxation debt in a Family Court proceeding.  For those who missed it – the Family Court does have that power, and I recommend readers seeking to understand the more technical aspects to read the many learned articles on the topic. 

But in this piece, I shine the spotlight on the impact this decision may have in Domestic Violence situations, more particularly, Financial Abuse.   I note with some irony that such a power struggle between two mighty institutions could provide hope and relief to the many hundreds of thousands who suffer each year, through a different, and much more personal, yet deeply damaging kind of power struggle – Domestic Violence.

It is well established that in family law property matters, the Court can hold both parties equally responsible for debts acquired during a relationship or, depending on the circumstances, hold one partner responsible for the debt of the other. Additionally, the Court can prohibit a (third party) creditor from pursuing a party for a debt and require they seek payment from the other party.

In short, if you acquired a debt in a relationship, now, even a personal tax debt, due to your ex-partner’s actions, you may have grounds to seek the debt be transferred to them.

This is where circumstances of Financial Abuse in Domestic and Family Violence comes sharply into focus.  Such abuse not only involves manipulating and controlling an individual’s own or joint finances, but often simultaneously exploiting and sabotaging that person’s economic position.[2]

Near 16% of all Australian women and almost 90% of people experiencing domestic violence, encounter financial abuse.[3]

Often the behavior begins gradually and over an extended period of time, before a party realises the seriousness of the situation. Other times it can be more blatant, forcing a party to put their name on accounts or to sign documents. The situation can leave a person feeling depressed, embarrassed and helpless.  These feelings, along with the prospect of being burdened with an insurmountable debt are factors that frequently result in a person remaining in an abusive relationship.  But what if you can be freed of that debt? 

What the decision of Tomaras reveals is that there is scope for the court to order a violent party to carry the debt they force onto another through their acts of Domestic and Family Violence.

Of course, any shifting of debt would need to be determined based on individual facts and like all property settlements, be “just and equitable”.  

The keys factors may be the amount of control and/or lack of knowledge a person had of the situation.

Considering the epidemic of Financial Abuse, if a perpetrator can be shown to be the more financially capable party, the shifting of any debt, including a tax debt, may not be as isolated as first thought. 

To download a copy of this blog, click here.  If you would like to confidentially and safely discuss your concerns about Domestic and Family Violence please call me, at Robbins Watson Solicitors on: 55769999

DISCLAIMER:
1. The information on this blogpost is of a general nature, not intended to be specific professional advice.
2. Please seek the opinion of a professional to advise you of your situation.
3. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
4. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.
5. Any comments, letters, and other submissions are moderated and may be edited or withheld at the sole discretion of the author.

[1] Commissioner of Taxation for the Commonwealth of Australia v Tomaras & Ors [2018] HCA 62

[2] Adams AE, Sullivan CM, Bybee D, Greeson MR. Development of the Scale of Economic Abuse. Violence Against Women. 2008; 14(5): 563-88.

[3] The Center for Relationship Abuse Awareness, http://stoprelationshipabuse.org/educated/types-of-abuse/economic-abuse/

The transition from law student to lawyer

The transition from law student to lawyer
November 18, 2018 /

By Allison Kelly

Law Clerk

Graduating from your law degree is a momentous achievement especially after the numerous long nights spent on your laptop frantically trying to finish your assessment due the next day or those dreaded 3 hour end of semester exams where you need to cram everything you know onto an exam paper. But once you receive your testamur and throw your mortar board in the air for the essential Instagram photo you may be thinking what now? If you speak to any law graduate their first answer will probably be to obtain a job in a top tier law firm and be granted a generous salary.

But before you can unleash everything you learnt at university and embark on your legal career you must first obtain valuable practical skills, which will form the foundation in which you will build your legal career.

Some important practical skills are as follows:

Communication

Communication is key! As a fresh law graduate you need to be able to communicate effectively with your colleagues and clients. Communication is not limited to verbal but also extends to your body language and the way you convey your message to your listeners. Being a good communicator means you also need to be a good listener. It is no good telling a client everything you know about a particular area law if you haven’t listened to the facts and how that law can be applied to their case.

Time management

This is essential to ensure you not only complete your work but you complete your work on time. To perfect your time management skills you need to ensure that you can prioritize your workload and delegate if needed. Find something that works for you, by either writing a to-do-list or adding reminders in your phone to help you work out what is urgent and what can wait.  In practice strict time limits apply and must be adhered to, to ensure you can aim to achieve the best outcome for your client.

Decision making

Decision making is a skill that will continue to develop throughout all aspects of your life. Our day is full of decision making, the key is to determine what is the right and just decision to make. As lawyers our clients seek our advice on which decision to make, although we cannot make the decision for them, it is our job to provide them with the information they need and guide them to make an informed decision.

Resilience and self-confidence

These are arguably the most important skills a law graduate can develop early in their career. The legal profession is a tough industry especially in your first few years while you are trying to find your feet and develop your professional identity. The key is not to be too hard on yourself, no one expects you to know everything. Be respectful of your peers and listen to your mentors they are there to guide you and help you transition from student to lawyer, their feedback is important! Lastly, be confident in yourself and try your best, remember this is only the beginning of an exciting and rewarding career.

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

DISCLAIMER:
The information on this blogpost is of a general nature, not intended to be specific professional advice.
  1. Please seek the opinion of a professional to advise you of your situation.
  1. The author’s opinions are his/her own and do not represent the views of any other person, firm or entity.
  1. The author is not responsible for the accuracy or appropriateness of third-party comments or articles, including those of guest authors and editorial contributions.
  1. Any comments, letters, and other submissions are moderated and may be edited or withheld at the sole discretion of the author.