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  • Domestic Violence: 8 Myths Part 1

    October 16th, 2019 | by
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    Welcome to the first instalment of our two-part series on domestic violence myths.

    Domestic violence is a sensitive topic, but it is still one that needs to be talked about openly and candidly. Domestic violence occurs far too frequently. According to the 2016 Personal Safety Survey completed by the Australian Bureau of Statistics 17% of women and 6% of men had experienced physical and / or sexual abuse by a current or former partner from the age of 15. Further, 23% of women and 16% of men had experienced emotional abuse by a current or former partner from the same age. During this 8 part series we will discuss domestic violence and in the process dispel some common myths and provide helpful information if you are facing this very difficult situation.

    Myth 1: Domestic Violence is only Physical Violence

    The definition of domestic violence is broad and covers a range of different behaviours that occur within the context of a relevant domestic relationship. These behaviours are not just limited to physical violence. Domestic violence is defined in section 8 of Domestic and Family Violence Protection Act 2012 Qld as behaviour that is

    • (a) physically or sexually abusive, or
    • (b) emotionally or psychologically abusive, or
    • (c) economically abusive, or
    • (d) threatening, or
    • (e) coercive, or
    • (f) in any other way controls or dominates a person and causes the person to fear for their safety or wellbeing.

    In the same section of the Act some specific examples are provided of behaviour that is domestic violence. Some of these examples include

    • (a) causing personal injury to a person or threatening to do so
    • (b) damaging a person’s property or threatening to do so
    • (c) threatening to commit suicide or self harm so as to torment intimidate or frighten
    • (d) causing or threatening death or injury to an animal.
    • (e) stalking

    Practical Pointer: Get to Safety and Seek Support

    If you find yourself in a situation of domestic violence call the Police and get to safety immediately. Once you are safe, seek support and assistance from family and friends. You should also seek professional advice and information about the legal options for protecting yourself.

     

    Myth 2: Only the Police Can Apply for a Domestic Violence Order

    It is not only the Police who can apply for a domestic violence order.

    Section 25 of the Domestic and Family Violence Protection Act 2012 Qld provides that an application for a domestic violence order may be made personally by the victim. If, however the victim feels apprehensive or overwhelmed by the application process it is also possible for them to authorise a person to make the application on their behalf. It is also recognised that a person acting as a guardian or attorney can make an application for a domestic violence order on behalf the victim. In these circumstances the application process would involve attending a Police Station or Court House to obtain an application form, then filling out the form and filing it with the Court.  

    An alternative approach is for the victim to make a complaint of domestic violence to the Police. The Police will then determine whether to make an application for a domestic violence order and bring any criminal charges if appropriate. In this situation any application form would be completed and filed with the Court by the Police.

    There is no fee to pay when filing an application for a protection order with the Court.

    Practical Pointer: Detailed Information

    When completing an application for protection order you should provide as much information as possible about any incidents of domestic violence that have occurred including the dates and times of the incidents as well as any injuries sustained. In addition, details regarding the reporting of any domestic violence to authorities or medical services should be provided.

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    Myth 3: A domestic violence order can only protect the victim

    The protection provided by a domestic violence order isn’t just limited to the victim of the domestic violence. Section 24 of the Domestic and Family Violence Protection Act 2012 Qld provides that a domestic violence order can also cover other ‘named people’ who have been affected or impacted by the violence, namely:

    • a child of the aggrieved (including an unborn child) or a child who usually lives with the aggrieved;
    • a relative of the aggrieved;
    • an associate of the aggrieved (e.g. their new partner, a flat mate or a work colleague)

    A court can name a child of the aggrieved or a child who usually lives with the aggrieved on a domestic violence order to protect the child from associated domestic violence or being exposed to domestic violence. A child is considered to have been exposed to domestic violence if the child has:

    • seen or heard an assault;
    • overheard threats of physical abuse;
    • overheard repeated denigration;
    • comforts someone who has been abused;
    • seen bruises or injuries to another person;
    • is present when police respond to a domestic violence incident.

    The court must consider naming a child on a domestic violence order even if the application does not specifically request that the children be named. A relative or associate of the aggrieved may be named on a domestic violence order if the Court is satisfied that naming the person is ‘necessary or desirable’ to protect that person from domestic violence.

    When a person is named on a domestic violence order the conditions that apply to protect the aggrieved will also apply to the people who are named on the order.

    Practical Pointer

    If you are making an application for a protection order and you are seeking to name other people on the order make sure you include their full names, date of birth and addresses on the application form.

    Myth 4: A domestic order only prevents physical violence

    A domestic violence order protects the victim of domestic violence by restraining the behaviour of the perpetrator.

    Section 54 of the Domestic and Family Violence Protection Act 2012 Qld provides that certain standard conditions that must be included in all domestic violence orders. These standard conditions are that the perpetrator must be of good behaviour and must not commit domestic violence towards the victim. In circumstances where another adult is named on the domestic violence order the perpetrator must also be of good behaviour and  not commit associated domestic violence against that person. If a child is named on the domestic violence order, then the perpetrator must be of good behaviour and not commit associated domestic violence and not expose the child to domestic violence.

    In addition to the standard conditions, a domestic violence order can also include extra conditions if the court considers it necessary and desirable in the circumstances to protect the victim or a named person. Examples of the types of the conditions that can be included in a domestic violence order are (according to the DFVP Act):

    • prohibiting the perpetrator from approaching, contacting or locating the victim or named person or attempting to do any of these things
    • prohibiting the perpetrator from being present at a certain location where the victim or named child may be present or attend frequently (e.g. workplace, school or kindergarten)
    • prohibiting the perpetrator from remaining at a premises where the perpetrator and victim live or previously lived

    If a domestic violence order is made, the perpetrator is not allowed to possess a weapon or a weapon’s licence under the Weapons Act 1990 Qld. The domestic violence order will note that any license held by the perpetrator is revoked and provide information about the surrender of their weapons – this applies even if the perpetrator has a profession that involves working with a weapon.

    Practical Pointer: Detailed Information

    If you are making an application for a protection order and are requesting that additional conditions be made as well as the standard conditions you will need to outline reasons in support. Carefully read each of the additional conditions set out in the application form and provide the additional information and reasons that has been requested.

     

    This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

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  • Making your Will: 8 things you need to know

    September 11th, 2019 | by
    New Way Lawyers read more

    Wills are like most other legal documents, people have a general idea of what they are about but they may feel daunted by the details and do not fully understand who should make a Will, when one should be made and what should be included. In our 8-part series, we hope to shed light on commonly unknown issues relating to Wills.

    1. More than 50% of adult Australians do not have a valid Will

    According to research by the Western Australian Public Trustee, more than half of Australians either do not have a Will or do not have a Will which is effective on death. If you pass away without a Will, the law in the state where you live will determine who is responsible for distributing assets you own and who will receive these assets. This means that you will have had no control over who is in charge of distributing your assets and your assets may not be received by the people that you would have chosen.

    Even if you have a Will, your Will may be invalid if it has not been properly completed. A Will may be invalid due to common mistakes such as not having a proper witness or deeper issues such as someone having undue influence on the content. We encourage everyone to document their wishes in a valid Will.

     

    2. You can and probably should update your Will

    People often think that making a Will is something that you only need to do once. This is a common, but serious misconception about Wills.Many life events can have a significant impact on your Will. These include:

    • Marriage;
    • Divorce;
    • Entering into a de facto relationship;
    • Having a child, stepchild or grandchild;
    • Family members passing away;
    • Change in financial circumstances;
    • Moving interstate or overseas.

    By way of example, when a person marries, any existing Will that that they have in place is automatically revoked, unless the Will has been made in contemplation of marriage.

    In the case of a person divorcing, certain parts of an existing Will are revoked by the divorce.Any clauses in a Will that provide a gift or beneficial interest to a former spouse are revoked by divorce as are any clauses appointing a former spouse as an executor, trustee or guardian.

    It is advisable to review your Will every 2-3 years, or whenever you experience any of the above mentioned life events to ensure that it still reflects your intentions. We are able to help you if you have an existing Will which needs to be updated.

     

    3. Wills are not only for rich people

    Many people think that they do not need to make a Will if they don’t own any property or don’t have much money. However, Queensland law requires that all deceased estates must be properly administered, no matter how large or small the estate.

    Common items that people do not realise form part of their estate include:

    • Sentimental possessions such as jewellery, artwork and photos; and
    • Unpaid wages and leave entitlements.

    In addition to setting out who receives your assets your Will can also:

    • Designate guardians to take care of any of your children who are under the age of eighteen;
    • Detail arrangements for family pets;
    • Set out arrangements for what you would like to happen with social network profiles such as Facebook, Myspace, LinkedIn and Twitter;
    • Provide details of wishes for your funeral or cremation; and
    • Confirm your wishes regarding organ donation.

    It is advisable for everyone to have a Will in place, regardless of their financial circumstances.

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    4. Your Will doesn’t cover all your assets

    Many people believe that if they have a Will, it covers all their assets. However, some assets aren’t automatically covered by your Will; superannuation is one of these assets. Your superannuation is held by the trustee of your superannuation fund and there are special rules that govern how a trustee can distribute your superannuation after you die.

    Your superannuation fund may permit you to make what is called a binding death nomination, which allows you to determine who will receive your superannuation after you die. In a binding death nomination you can nominate for your superannuation to be paid to your estate, in which case your superannuation will then be distributed in accordance with the terms of your Will. Alternatively, you can make a binding death nomination nominating a spouse, child or other dependant to be the beneficiary of your superannuation, in which case your superannuation will simply be paid directly to the nominated beneficiary. If your superannuation fund does not allow you to make a binding death nomination or you choose not to make a binding death nomination, then the trustee will decide whether to pay your superannuation to your estate, to then be dealt with by your Will, or whether to pay your superannuation directly to a spouse, child or dependant.

    When making or reviewing a Will it is therefore important to also make or review any nominations that you may have made with respect to your superannuation.

     

    5. You can nominate an alternate or back up executor

    An executor is the person who you appoint to be responsible for carrying out the wishes in your Will. When choosing an executor, it is a good idea to also name an alternate or back up executor in case your first executor is unable to act as your executor or does not want to become an executor.

    When choosing who you want to have act as your executor or alternate executor you should consider the following:

    • Do you trust them?
    • Are they confident and prepared to deal with your assets in accordance with your wishes?
    • Do they have time to do what is needed?
    • Will they make sound decisions if disputes arise over your estate?
    • Are they likely to outlive you?

    Keeping in mind the above, you can choose anyone who is over the age of 18 years to become your executor, including your spouse, partner or children. An executor of your Willcan also be a beneficiary under your Will.

    It’s also possible to appoint two people to act as joint executors. If you are having difficulty choosing an executor, or you want someone independent, you can appoint a solicitor, accountant or a person from a trustee company.

     

    6. Your home may not automatically go to the co-owner

    If you own a home it may be owned as joint tenants or tenants in common. It is important to understand the difference between these two forms of ownership, as the form of ownership will have an impact on your estate planning.

    If you own the family home jointly with another person as joint tenants, the property will automatically go to the co-owner upon your death, rather than forming part of your estate and being dealt with by your Will. Owning a property as joint tenants can be useful if you believe that there is a risk that someone may apply to the Court and contest your Will and seek further provision from your estate upon your death. Owning a property as joint tenants effectively guarantees that the property will go to the co-owner if they survive you and protects the property from falling into your estate and being subject to any claim that may be made.

    If however you own the family home jointly with another person as tenants in common, your share of the property will not automatically go to the co-owner on your death, rather, it will form part of your estate and will be distributed in accordance with your Will. Similarly, on the death of the co-owner, you will not automatically receive their share of the property, it will be dealt with by their Will, or the rules of intestacy if they don’t have a Will, and you may end up owning the property with someone you did not initially intend to own the property with.

    It is easy to find out whether a property is owned as a joint tenancy or tenants in common. This can be determined by reviewing the title deed for the property or alternatively by completing a title search.

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    7. A Will can include arrangements for the care of children

    It can be overwhelming to think about who would care for your children if you were to pass away. However, by making a Will you can appoint a person to be the testamentary guardian of your children and therefore have peace of mind in this regard.

    A testamentary guardian is responsible for making decisions about the long term care, welfare and development of your children, as well as having daily responsibility for your children’s care.If the other natural parent of your children has also passed away then the appointed guardian will be in the same position as a parent and if someone disagrees with the appointment, they must apply through a court process to challenge the appointment. In the event that the other natural parent of your children is still alive then you may still appoint a guardian however the other natural parent may apply to have the guardian you have appointed removed if they do not agree with the appointment.

    If you do not appoint a guardian under your Will then your family members will be left to decide who will care for your children. If agreement cannot be reached it may become necessary for an application to be made to the Court and the Court will decide who will care for your children.

    It is important to consider a number of matters when appointing a Testamentary Guardian. Some matters to be considered include the following:

    • (a) The relationship between your children and the proposed Testamentary Guardian;
    • (b) The relationship between your chosen executors of your Will and the proposed Testamentary Guardian;
    • (c) The proposed Testamentary Guardian’s location. If the Testamentary Guardian is required to relocate to look after your children you may wish to consider how that might impact on the Testamentary Guardian’s income and lifestyle;
    • (d) The proposed Testamentary Guardian’s age and fitness to act; and
    • (e) The financial implications for the proposed Testamentary Guardian.

     

    8. Your Will can be contested in certain circumstances

    In certain circumstances if you have excluded someone from your Will or not made sufficient provision for someone in your Will, your Will may be able to be contested by way of a family provision application.

    In Queensland a family provision application can only be made a spouse, child or dependent. The terms spouse, child and dependant are defined by the law and defined quite broadly. For example, the term spouse includes a husband, wife, defacto partner, registered partner, former husband, former wife and former registered partner while the term child includes a biological child, unborn child, legally adopted child and step child.

    A Court can take various matters into consideration in determining whether the terms of a Will should be varied so that provision is made for a person making a family provision application.

    These considerations include, but are not limited to

    1. The financial position of the person contesting the Will;
    2. Whether any other person is liable to support the person contesting the Will;
    3. The health of the person contesting the Will;
    4. The size and nature of your estate;
    5. The strength of any competing claims to your estate;
    6. The relationship between you and the person contesting the Will;
    7. Any contribution made by the person contesting the Will to your estate;
    8. Any conduct by the person contesting the Will which might disentitle them to an order for provision; and
    9. Any other matter which the court considers relevant.

    There are various ways to minimise the risk of someone contesting your Will by making a family provision application and it is best if you obtain legal advice if you are considering excluding a spouse, child or dependent from your Will.

    This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

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