Jul 15, 2022 | Family Law, Wills and Estates
A Power of Attorney is a legal document that gives a trusted person the legal authority to act for you and to make legally binding decisions on your behalf if you are unable to make these decisions yourself, such as in the case of serious illness. If you do not have a Power of Attorney then you should contact us and find out more.
Below are 6 common Power of Attorney questions that you should know the answers to.
1. In what circumstances is a Power of Attorney important?
- To relieve yourself of the day-to-day demands of financial paperwork and record keeping;
- As a safety net when travelling or to allow someone to handle your affairs in your absence;
- To avoid burdening family or friends with the responsibility of looking after your affairs; or
- If you are unable to manage your prosperity or financial affairs.
2. Does the Attorney need to be a lawyer?
The person appointed does not need to have legal qualifications – you can appoint anyone. Deciding on the person to be appointed should be done with careful thought and consideration as you are providing them with significant power.
An ideal attorney should:
- Have integrity;
- Be willing to act in that capacity;
- Have competence in areas of relevance;
- Be able to act in a business-like manner;
- Be able to spare the time necessary for the task;
- Live in the locality in which they are to act;
- Be agreeable to respecting the confidentiality of the donor’s (the person giving the Power of Attorney) affairs; and
- Be impartial and have no known conflict of interest.
3. Are there different types of Powers of Attorney?
There are two types of Powers of Attorney.
A General Power of Attorney is:
- Only valid while the donor has legal capacity;
- Useful if you are going away for an extended period and you do not want the authority to continue should you lose legal capacity; and
- Usually drawn up for a specific purpose.
An Enduring Power of Attorney (EPA) which:
- Continues to be valid even if the donor loses legal capacity due to disability or illness;
- May empower your attorney to make financial, property, lifestyle and health decisions;
- May be activated when required or upon loss of legal capacity; and
- Allows your attorney to commence or to continue to manage your affairs even if you have become unable to give lawful instructions.
4. Is it better to have more than one attorney?
We recommend that you do have more than one attorney, or a substitute attorney. Therefore if the appointed attorney cannot act or continue to act, as it gives you more flexibility. Common instances where more than one attorney is appointed include:
- When siblings are appointed together
- A spouse and a child are appointed together
You can appoint attorneys to act “jointly” (this means they must agree on everything) or “severally” (this means one of the appointed persons can make decisions alone).
5. Should I pay my attorney?
This is not necessary to give legal effect to the power, and would normally only be considered if the attorney is a professional.
6. How do I know if the donor has sufficient mental capacity to make a power of attorney?
There is no simple formula, but in general terms they must be able to:
- Understand the major consequences of a decision;
- Take responsibility for making that choice; and
- Make a choice based on the risks and benefits that are important to them.
If there is any doubt about capacity, it’s best to get in touch with a medical professional and ask for a written opinion. Remember, different powers require different levels of understanding. If a medical opinion about capacity is sought, it is wise to have the Power of Attorney signed on the same day as you get the medical report so there can be no subsequent claim that the appointment was invalid.
To find out more about Powers of Attorney and their benefits call us on (02) 9963 9800 or via our contact form here.
Jul 4, 2022 | Family Law
In family law, one issue which may arise following a relationship separation where children are involved is ‘relocation’. Relocation is the legal term for moving with your child to another town, state or country after a divorce or separation. Relocation may raise issues in relation to parenting arrangements if the moving interferes with the ability of the non-relocating parent to live with or spend time with their child.
It is best that parties try to amicably resolve all issues that will arise as a result of a planned relocation. This agreement can then be formalised in court through the filing of consent orders. If this is not possible, parties may apply to the Federal Circuit and Family Court of Australia for a judicial determination. However, if you relocate without a court order or without the consent of the non-relocating parent, a court may require you and your child to return to your previous location.
The Law on Relocation
Issues around relocation are not explicitly referred to in the Family Law Act 1975. However, the overriding consideration of the Family Court in all matters concerning children, including variations to living arrangements, is determining what is in the best interests of the child. While the issue of relocation is not mentioned in legislation, there are countless court cases which provide guidance.
Factors Considered
There are a variety of factors that the Family Court may consider when determining an application for relocation. Below is a list of potential considerations:
- Reasons or interests of the parent proposing the relocation
- The reality of the parents’ circumstances such as the availability of affordable and appropriate housing, employment and family support
- The impact of the proposed orders on the mental health and wellbeing of each parent
- The effect the relocation would have on the non-relocating parent’s ability to see their child
- The nature of the relationship between the child and each parent, as well as any other significant people in the child’s life such as grandparents and extended family
- The impact the proposed relocation would have on the child’s relationships with their parents and significant people in their life
- Travel costs of the non-relocating parent to see and spend time with their child
- Proposals for how the non-relocating parent will be able to spend time with and communicate with their child
The outcome of each case is unique and based on its facts. Therefore, it is difficult to predict the outcome of cases without consulting a legal professional for advice.
Seek Legal Advice
If you have any questions or concerns regarding relocation, we can provide additional information and advice to you regarding your situation. If you would like to discuss your concerns with a legal professional please contact us on (02) 9963 9800 or via our contact form.
Jul 1, 2022 | Family Law
In Australia, grandparents have unique legal rights to approach courts to obtain orders which allow them to spend time with their grandchildren.
If you have concerns about the welfare of your grandchildren, you may need guidance about how to help protect them.
What Rights Exist for Grandparents?
When it comes to family law, grandparents do have some rights. The law’s focus is on the well-being and best-interests of the child. That includes a child’s right to know and have contact with both parents and others seen as significant for their care and development, including grandparents. However, it is important to note that grandparents do not have an automatic right to spend time with their grandchildren; rather they have standing to seek orders from the court.
Parents who are separating often make plans for the future care of their children informally, and will agree on where their children will live. Some may draw up a written parenting plan setting out their arrangements for caring for children. They can make this more formal by registering it with the courts in consent orders.
If you are concerned about your future contact with your grandchildren, you can ask to be included in such plans. If you can’t agree with the separating parents about your future contact with the children, you can apply to the courts for parenting orders yourself.
What Does the Court Consider?
The courts emphasise the importance of children having contact with as much of their wider family as possible and growing up as part of an extended and supportive family group. Grandparents with a close ongoing relationship or who can show they are involved in the children’s welfare can also apply to the courts for parenting orders.
Twenty years ago, in a case where a grandmother had applied to be allowed to have contact with her grandson, the judge stated that “we live in troubled economic times and by way of example, in 20 years’ time, the child may have need for finance in establishing a house, in purchasing a car, in any number of areas. The more people that are loving and close to him and can help him, who feel an obligation towards him, the healthier it would be for the child.”
An order may enable you to have some visits or communicate with your grandchild, perhaps by phone or email. It will be up to the court to decide what should happen, based on what it thinks is in the child’s best interests.
Although you have a right to apply for parenting orders, this does not mean the courts will necessarily decide in your favour.
What is the Process?
The law requires that families first attend family dispute resolution or mediation before going to court. An independent person trained in helping families will lead these conferences, with the aim of helping everyone come to an agreement.
If mediation fails, you will need legal advice before going to court and a certificate from an accredited dispute resolution practitioner to show you’ve attempted alternative dispute resolution. You also need to find out how strong your case is, what forms and documents you will need to lodge with the court to support your case, what orders you should ask for, which court is better to start the case in, and the costs of taking legal action.
Even if you decide to represent yourself in court, it is important to get legal advice about how to prepare your case.
You can apply to court for your grandchildren to live or spend time with you whether their parents are together or separated. You will not need a certificate of dispute resolution if there is a fear of violence or the matter is urgent, or one party cannot take part in alternate dispute resolution because of a disability.
In cases where there is strong parental opposition to court orders sought by grandparents, a court appointed family consultant may be required to prepare a family report for submission to the court, to assist the court in deciding whether to grant a parenting order for the grandparent.
Contact Us
If you are concerned about your grandchildren’s welfare for any reason, or know people who are, please call us on (02) 9963 9800 or via our contact form.
Jun 30, 2022 | Family Law
We will all be involved in a dispute at some point in our lives. We may even reach a point where we want to take someone to court in order to reach an outcome that we desire.
Have you wondered what happens if the other person is not able to pay up if you win against them? If you reasonably believe that the other person is going to sell their property in an attempt to avoid paying if they lose a court dispute, asset freezing orders (also known as asset preservation orders or Mareva orders) are one way to make sure your opponent has enough resources to meet a judgment against them.
There are lots of misconceptions about when and how you can get an asset freezing order.
Myth 1: Their purpose is to seek security for a pending judgment
Too often, applications for a freezing order are made with the sole intention of seeking security for a judgment which a plaintiff hopes to gain in the future. There are certain requirements you must meet before the court will make a freezing order.
Myth 2: They’re easily lodged with few requirements
This is an extreme order which will not be granted lightly. There are a variety of requirements that must be satisfied before the court will allow the order.
- Firstly, there is a minimum standard to which the case must be The case must be a ‘good arguable case’, that is, you must be able to convince the court that you have a serious issue to be tried by the court.
- Next, the plaintiff must prove that there is a real danger that the other person may dispose of their assets in order to avoid paying if you win. You will be required to provide significant evidence to support this claim. Any judge hearing such an application will ask: ‘is there an imminent transaction and have you given notice to the other side?’
- Finally, the court will also consider the nature of the defendant’s assets – for example they may consider the financial standing of the defendant, including their credit history.
Myth 3: You can freeze all assets held by the respondent
When applying for a freezing order, the plaintiff cannot simply request a blanket freezing order over all of the known assets a defendant possesses. The value of the assets covered by the freezing order cannot exceed the likely maximum amount of the reasonable claim by the plaintiff.
The order must also exclude assets for dealings by the respondent for legitimate purposes. This may include payments for ordinary living, business expenses or dealings in the discharge of contractual obligations, that were incurred before the freezing order was made.
Seeking legal advice
It is imperative that you are accurately informed of the obligations and requirements of a freezing order before lodging an order with the court. If you would like further information regarding freezing orders or general litigation advice, please do not hesitate to contact one of our experienced litigation solicitors on 9963 9800 or via our contact form.
Jun 21, 2022 | Family Law
Like the breakdown of a marriage, the breakdown of a de facto relationship may require court involvement to settle financial and/or parenting disputes. This is a prominent concern considering how 10.4% of the Australian population were registered as being in a de facto relationship in 2016.
When making a property settlement order in a de facto relationship, the jurisdiction of the Federal Circuit and Family Court of Australia (‘Family Court’) relies upon definitive evidence of a breakdown. This can cause disputation, as the Family Law Act 1975 (Cth) (‘Family Law Act’) does not include an exhaustive definition of a breakdown. In light of this, we explore how the Family Court determines the breakdown of a de facto relationship by reviewing the High Court decision of Fairbairn v Radecki [2022] HCA 18.
What is a De Facto Relationship?
A de facto relationship is defined in the Family Law Act as being between persons who:
- are not legally married; and
- are not related by family; and
- have a relationship as a couple living together on a genuine domestic basis.
In determining whether a relationship is that of a “couple” and is entitled to weight in court, the Family Court will refer to a set of circumstances appropriate to the case. These circumstances may include the following:
- the duration of the relationship;
- the extent of a sexual relationship;
- the degree of financial independence;
- the use and acquisition of their property;
- the degree of mutual commitment; and
- whether they cared for and supported children.
What is a Breakdown of a De Facto Relationship?
Section 90SM of the Family Law Act stipulates that the court may only initiate a property settlement order once there has been a ‘breakdown of a de facto relationship’. Despite this condition, the Family Law Act does not exhaustively specify what is comprised within a breakdown. As a result, the definition of a breakdown is determined by case law.
In referring to case law, however, there are various ambiguities regarding the determination of a “breakdown”. This poses a concern as the conclusive breakdown of a de facto relationship is necessary for the court to be able to determine whether they may exercise jurisdiction in property settlement proceedings.
Fortunately, the decision of Fairbairn v Radecki [2022] HCA 18 (‘Fairburn v Radecki’) on 11 May 2022 has aided in clarifying the circumstances involved in the breakdown of a de facto relationship.
Fairburn v Radecki
Chronology
2005: Fairbairn and Radecki commenced a de facto relationship.
2010: Fairbairn and Radecki executed a Cohabitation Agreement which specified that they had to ‘quarantine their respective property’. Whilst they agreed to keep their assets separate, they chose to live in a house owned by Fairbairn.
2015: Fairbairn was diagnosed with dementia.
2017: Fairbairn’s capacity to make long-term decisions was ‘largely, if not completely, absent.’
2018: In January, the NSW Civil and Administrative Tribunal appointed the NSW Trustee and Guardian (‘the Trustee’) to make health and welfare decisions on behalf of Fairbairn. In March, the Trustee decided to move Fairbairn into an aged care facility. The Trustee sought to sell the home to fund Fairbairn’s ongoing care, although this decision was opposed by Radecki. As a result, the Trustee sought property settlement orders from the Family Court which included orders for the sale of the home.
Primary Issue
To have jurisdiction over the alteration of property settlement orders, the Family Court required sufficient evidence that a de facto relationship had broken down pursuant to section 90SM of the Family Law Act.
Holding
In their Cohabitation Agreement, Fairbairn and Radecki agreed that their assets would be kept separate. In 2017, however, Radecki took various actions which contradicted this agreement.
For example, Radecki sought to create a new Enduring Power of Attorney which would give him significant control over Fairbairn’s assets. He also procured a revised Will whilst Fairbairn was hospitalised and as a result, she was unable to act in her own best interest.
It was held that Radecki was acting contrary to Fairbairn’s interests because he was no longer making decisions which benefitted her emotionally, physically or financially. As Radecki was not making the ‘necessary or desirable adjustments’ which would have evidenced a mutual commitment to a shared life, it was held that the relationship had broken down pursuant to section 4AA(2) of the Family Law Act.
Judgement
With reference to Stanford v Stanford [2012] HCA 52, the High Court held that mere physical separation is not sufficient in justifying the breakdown of a de facto relationship. A de facto relationship may continue even if the parties are residing at separate locations.
An impaired mental capacity is also insufficient in justifying the breakdown of a de facto relationship. The will or ability to make ‘necessary or desirable adjustments’ to support a shared life is not contingent upon mental capacity. Adjustments must be made in accordance with the other party’s interests to support the continuation of a de facto relationship. When these adjustments act in opposition to the interests of the other party, it may be concluded that a mutual commitment to a shared life has ceased.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you are party to a de facto relationship which has broken down and would like to have a confidential discussion, contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800 or via the form here.
Jun 17, 2022 | Family Law, Property Law
When parties separate, it is important to make sure that assets are protected before a family law property settlement is formalised. One way that matrimonial assets can be protected is through the lodgment of a caveat.
What is a caveat?
A caveat is a note that is recorded on the title of a property that protects any interest that the maker of the caveat may have on the property. This notice can be used as a way to delay a property transaction. If your ex-partner is the registered owner, a caveat can prevent them from adversely dealing with the property such as by selling, transferring, mortgaging or encumbering it until the court has determined whether you have an interest in the property. A person who lodges a caveat is known as the ‘caveator’.
When should a caveat be lodged?
A caveat may be lodged if a party has a caveatable interest in the property. This may occur if both parties to a relationship have an interest in the property but there is only one party’s name on the title of the property. This interest may be present if, for example, both parties contributed to paying the mortgage or have contributed to the property through other means throughout the relationship. This can include non-financial means such as property maintenance. If the person making these contributions does not have their name registered on the title of the property, then it is likely that they will not gain any benefit from that property, if it were to be sold by the proprietor.
How is a caveat lodged?
A caveat is lodged by way of a caveat form, which can be completed for electronic lodgment by a solicitor or conveyancer, or in hard copy with NSW Land Registry Services. Basic requirements of the caveat include the name and address of the person lodging the caveat, the name and address of the person who owns the property and the interest claimed by the person lodging the caveat. It is important to complete the caveat correctly the first time as once it is lodged as you cannot lodge another caveat on the same grounds unless you are granted leave by the court.
What happens after a caveat has been lodged?
Once a caveat is lodged NSW Land Registry Services will then examine the documentation, and if an interest is adequately made out, they will record the caveat against the title of the property. They will then serve notice to both the caveator and the registered proprietor of the property. Subsequently, the registered proprietor will be entitled to serve a lapsing notice on the caveator, requiring them to commence court proceedings immediately in order to establish their interest to that property. Failing to attend to this within fourteen (14) days will result in the caveat lapsing.
How do you remove a caveat?
A caveat can be removed by bringing an application to the Registrar of Titles. This application must be in writing, and have a supporting certificate signed by a legal practitioner. This application must also include a statement confirming that the caveator does not own the property and has no claim to it. If proceedings are not commenced by the caveator to protect their caveat, then the caveat will lapse after three months as a result of the application lodged with the Registrar. Once the caveat has lapsed the owner of the property can then lodge a form to formally remove the caveat.
Family law matters can get very complex. Get Legal Advice.
When drafting a caveat, it is important all proper protocols are followed to ensure that the caveat is permitted by the relevant authority.
Our experienced family lawyers are ready to assist you with your matter and take the stress out of your divorce or other family law matters. If you need any assistance please don’t hesitate to contact Etheringtons Family Lawyers in North Sydney via this form or on 02 9963 9800.
