WHY YOU DON’T NEED AN AGGRESSIVE FAMILY LAWYER

Engaging a lawyer to advise and represent you if you find yourself in the unfortunate situation of family breakdown, and needing advice and assistance to navigate that process, is not something that most of us would want to have to do. It is however a reality that will confront a significant number of us at some point in our lives.

Is it important to hire an Aggressive Lawyer?

When we speak to people in that situation as they are at the start of the process and trying to get to grips with what is happening, we often hear people ask if we are “bulldogs” and whether we will be “aggressive”.

Whilst we can be those things if the client really wants it, or if the situation really requires it, we will always ask if that is really what you need? Most people only experience an engagement with the family law system once or perhaps twice in their lives. For us, it’s what we do every day. We have seen the process from beginning to end many many times.

Sometimes, individuals indicate that they want an aggressive family lawyer to represent them in their case. So we will usually respond by asking if an aggressive, bulldog approach is what will get you the best outcome? If it is not what you really need, the aggressive approach may mean that the time that you spend in the system is longer than it might need to be, that the emotional pain that you suffer is more intense than it needs to be, and the costs that you incur are much higher than they need to be.

What you actually need 

We also often hear that the only winners in the family law system are the lawyers. We prefer to think that because we are committed to giving our clients the advice that they need to hear, rather than the advice that they want to hear, that our clients are getting value for money. 

For an honest opinion about your family law situation that balances the emotional and financial costs, the time that the process may take with a realistic and practical appraisal of what is achievable, speak to one of our experienced family law team at Brisbane, Gold Coast and Sunshine Coast Office. 

Article Source: Aggressive Family Lawyer

FAMILY DNA PROFILING: THE GIFT THAT KEEPS ON GIVING

 

With Christmas approaching, many people may be considering giving as a gift a DNA ancestry kit for family DNA profiling. These are interesting ways of undertaking research into your family history and finding out the background of where your ancestors might have come from.

This is often used in association with various websites, where the results of the DNA testing can be uploaded to help trace other family members and complete missing links in the family tree.

Crime Scenes & Fake Profiles

However, this is not the only development in DNA science. In April of 2018 police in the United States managed to make an arrest in relation to a series of murders that were committed in California during the 1970s and 1980s. The Police in California used a sample from one of the crime scenes and using a fake profile uploaded the DNA result to an open-access genealogy website. This led them to the lead they needed.

Familial DNA profiling

This process requires the use of complex and sophisticated DNA testing and profiling, known as familial DNA profiling or family DNA profiling.

Family DNA profiling (also called DNA fingerprinting) is the process of determining an individual’s DNA characteristics, which are as unique as fingerprints. DNA analysis intended to identify a species, rather than an individual, is called DNA barcoding.

DNA profilings are a forensic technique in criminal investigations, comparing criminal suspects’ profiles to DNA evidence so as to assess the likelihood of their involvement in the crime. It is also used in parentage testing, to establish immigration eligibility, and in genealogical and medical research. DNA profiling has also been used in the study of animal and plant populations in the fields of zoology, botany, and agriculture. (see Wikipedia for more information)

The case in the USA is not the only one that has used these processes. In 2002 in the UK Police re-examined the evidence from a murder committed in South Wales in 1988, and using the family DNA profiling process they were able to identify the killer. The widespread availability of genealogy websites allows the police to search for a wider database for matches. In September 2018 it was announced that familial DNA profiling has been introduced in Australia by the National Criminal Investigation DNA Database.

So if you upload your DNA test results in searching for links in your family tree, you may help the Police to find out more than you had ever expected.

For more information, please contact your local Brisbane Lawyer at Aylward Game Solicitors on 1800 217 217 or book an appointment on our website.

Article Source: FAMILY DNA PROFILING: THE GIFT THAT KEEPS ON GIVING

What is Power of Attorney and When Would You Need It ?

 

In simple terms, a power of attorney is a legal document where a person is nominated to act on your behalf (known as the agent) regarding your affairs. The document gives the nominated party the legal capacity to make decisions for you on things like financial matters and other duties.

The person given attorney does not have to be a lawyer, although in many cases a law firm is enlisted to act as power of attorney.

Some common tasks of those entrusted with power of attorney can include, but are not limited to:

• The buying and selling of property
• Operating bank accounts
• Organising the paying of bills and debts
• The power to vote in meetings
• And lots more…

The tasks involved will depend on particular circumstances and what the principal (the person delegating the power of lawyer) requires and stipulates.

When Might You Need To Delegate Power of Attorney?

Many people only assume power of attorney is entrusted to someone when the principal no longer possesses the mental capacity to make sound decisions, such as in the case of someone with Alzheimer’s or suffering an incapacitating illness or injury.

While this is often the case, the are other scenarios where you may need to consider giving someone you trust the power of Solicitor, even on a temporary basis.

One such instance is when you might be required to spend a significant amount of time overseas and find it too difficult to handle all your affairs back home from abroad.

If you, the principal, lose your capacity to make decisions, then the power of attorney you delegated will cease.

Will and Estate Planning Brisbane

When it comes to preparing wills, estate planning and matters regarding the power of a lawyer, your local and highly experienced law firm in Brisbane is Aylward Game Solicitors. If you need advice regarding the delegation of power of solicitors to someone you trust, then think of us first.

Article Source: power of attorney

Have You Got A Fake Suit?

We often see newspaper reports and media reporting on fake lawyers and this is concerning to us. But what can you do to make sure your lawyer is legit?

A Fake suit is clearly a situation where they’re engaging in a defamatory statement, a false statement about another that damages that person’s reputation”. In that situation, that is certainly actionable.

We wish to remind the community that if someone is concerned and wishes to ensure that their solicitor is properly registered as a solicitor they can check with the Queensland Law Society, either by phone or online.

It’s a criminal offense to pretend to be a lawyer when you are not, but in truth prosecutions are rare.

Practising law is a regulated profession and only certified lawyers are allowed to do certain things, (such as appear on behalf of someone else in Court or be paid to undertake litigation).

How to become a (real) lawyer:

To practise as a solicitor in Queensland involves four steps:

1. Completion of an approved law degree
2. Completion of an approved practical legal training course or a supervised traineeship
3. Application for admission to Roll of Lawyers
4. Application for a practising certificate

A practising certificate is required to practise law in Queensland. Certificates are issued pursuant to s.49 of the Legal Profession Act 2007 and must be renewed annually.

For details on how to proceed if you have qualified overseas, access the below links:

• Application for assessment of overseas qualifications
• Information kit to apply for skills assessment
• FAQ for assessment of overseas qualifications
• Guideline for assessing overseas applications issued under Rule 9AA(1)(c)

Practitioners who intend to practise as principals are also required to successfully complete the QLS practice management course. This course expands practitioners’ managerial skills and helps them to easily transition to the role of principal.

SOURCE: https://www.qls.com.au/For_the_profession/Your_legal_career/Become_a_solicitor

To become an Accredited Specialist in law:

https://www.qls.com.au/For_the_profession/Professional_development/Specialist_accreditation/Eligibility

In summary, Accredited Specialists undertake more training. For example, you have to be admitted as a lawyer for a minimum of 5 years, with 3 years (before the application for accreditation) being almost exclusively in the area of specialism. You also have to undertake additional exams, however, it varies between the specialist areas what exactly is required.

To remain as Accredited Specialists, you even have to do additional hours of CPD every year which must be in the area of specialisation. It’s very intensive. You can always check to ensure you are dealing with an Accredited Specialist by asking for the lawyer’s credentials.

What are Lawyers Allowed To Do?

To answer the question of what are lawyers allowed to do those other people can’t, the Legal Profession Act (QLD) says only people who are admitted as lawyers are permitted to engage in legal practice.

Are you dealing with a genuine suit? It pays to be sure.

Here’s ACA’s recent story on a fake suit lawyer that got busted.

Article Source: A Fake Suite

PEXA E-Conveyance Vs Paper Settlement

E-Conveyance Vs Paper Settlement

Deciding on the most efficient and best value option for settling your property transaction is at the front of mind to most people and with the onset of modern technology, this decision now includes the option for electronic processes. So which is better? A traditional paper settlement or a more modern approach by way of conveyancing? Let’s discuss.

What is a Paper Settlement?

A “paper settlement” is the traditional method of settling a conveyancing matter. Solicitors Brisbane for the Buyer and Seller, the lending bank, and the releasing bank all meet in person at an agreed location to swap legal documents and hand over bank cheques.

What is a PEXA e-conveyancing?

PEXA E-Conveyancing is an electronic form of settlement, which minimizes the manual processes associated with a traditional paper settlement. Solicitors and banks transact together in an electronic environment to swap legal documents and transfer funds via electronic funds transfer (EFT).

Pexa E-Conveyancing is a great way to settle your property transaction. It allows for a very efficient, fast, and secure way to settle your property transaction in real-time with no delays. This includes treating sale proceeds as cleared funds so there is no waiting for cheques to be deposited and cleared into the Seller’s account. A PEXA settlement also provides for lodgement of legal documents instantly with the Land Registry which reduces the risk of delaying registration of the property transfer.

Always know what’s going on conveyancing

A PEXA Settlement can also incorporate an app that allows real-time tracking for Buyers or Sellers.  You can keep yourself updated the entire way through the conveyance by using the free settlement app “Settlement”. Buyers and Sellers can keep themselves informed throughout the settlement process and know exactly when settlement is complete.     

Use PEXA through Aylward Game Solicitors

In states such as New South Wales and Victoria, PEXA Settlements have become mandatory. However, with Queensland set to follow suit many law firms have not adopted the electronic settlement process and are not subscribers to PEXA.

Aylward Game Solicitors are subscribers to PEXA and we are able to provide Buyers and Sellers with the option of an electronic settlement or a traditional paper settlement. Each Client along with each property transaction is individual and we strive to provide our clients with a tailored conveyancing experience.   

Article Source: PEXA E-Conveyance 

GAY AND LESBIAN DE FACTO COUPLES AND PARENTING

 

Elton John and his partner David may not be considered the parents of their children in Australia.

Under the provisions of the Family Law Act parents are responsible for the care, welfare, and development of their children. The parents may be married or living in a de facto relationship. In both instances, the children of that relationship are recognized as the children of their parents. This extends to a lesbian couple living in a de facto relationship. The mother of a child in a lesbian de facto relationship is the parent of that child if the child was conceived by artificial insemination. The partner of the mother would also be considered a parent of the child under the provisions of the Family Law Act. The child is of course the child of the mother who gave birth to the child.

Gay and Lesbian De Facto Couples and Parenting

This does not extend to males in a gay de facto relationship even if one of the males donated sperm for the conception of the child. The biological mother and if in a relationship with her partner are deemed to be the child’s parents even if it is the intention of the biological mother and the gay male father that the child born will be living with the father of the child and his gay partner. It will be necessary for the gay male partners to legally adopt the child or apply to the Family Court for parenting orders of the child. The process of adopting a child is subject to the review of the relevant State department. Alternatively, an application may be made to the Family Court for the formal parenting of a child by a gay male couple. The normal considerations for parenting of that child will be made by the Court.

If a gay male couple raised a child without seeking formal parenting orders in relation to the child and if the relationship breaks down then either partner may apply to the Court for parenting orders on the basis he has been a significant person in that child’s life.

It may be prudent for lesbian and gay male couples to formalise the parenting of any child raised by them by seeking appropriate parenting orders in the Family Court.

Article Source: De Facto Couples

What do the Federal Government amendments to the Family Law Act mean for Superannuation?

 

Superannuation and Family Law

In 2002 there were amendments to the Family Law Act which allowed superannuation to be treated as property. The Court was empowered to make Orders splitting superannuation entitlements, transferring entitlements from one party to the other. Of course, the splitting of a person’s superannuation entitlement and a transfer of that entitlement does not mean that the person receiving the benefit of that entitlement could immediately draw down on the interest received. The normal provisions for drawing down on superannuation would. Under the legislation, if a splitting Order was made then one person would obtain an interest in the other person’s superannuation fund. A party could retain that interest in the fund or roll it out into a fund of their own choosing.

Prior to 2002 and the reason why this legislation was introduced into the Family Law Act was that in many cases married couples have had small property interests but large superannuation entitlements. At this time, the Family Law Act only applied to married couples. For instance, a person’s employment may have entitled that person to the benefit of a large superannuation fund such as airline pilots. As well parties to a marriage may have salaries sacrificed their income into their superannuation fund thereby creating a large superannuation interest. The remaining assets may have been meager. The Family Court prior to 2002 did not have the power to deal with superannuation which meant that one party would walk away with a large suppuration interest and the other party would only have a small interest in the remaining assets of the marriage. If a party was retiring in the near future then the Court had powers to prevent a party from dealing with their superannuation entitlements and when that party retired, the Court could then make Orders for monies to be drawn down from the superannuation fund and paid to the other party. This created difficulties in enforcing such Orders. For these reasons, the Family Law Act was amended to enable the splitting of married couple’s superannuation funds.

The legislation was further changed in 2009 which enabled de-facto couples and same-sex couples to have the same rights as a married couple under the Family Law Act. This allowed them to also have the benefit of the change in legislation enabling the splitting of their superannuation funds.

The Recent Federal Budget Made Changes

The recent federal budget made substantial amendments to superannuation which greatly affect separating parties. What is even more alarming, is that this legislation affects divorcing couples who suffer emotionally and financially when there is a breakup in their relationship. The legislation of the Government makes this far worse.

The Federal budget has made substantial difficulties with changes to its superannuation policies. Pursuant to such changes the maximum amount a person can put into a superannuation (non-concessional contributions – after-tax dollars) is $500,000.00 per member of a fund and pursuant to the legislation this is a lifetime limit that becomes effective from the budget night of 03 May 2016.

Prior to the changes being made a person’s limit was $540,000.00 every three (3) years (if that person was under 65 years of age) or $180,000.00 per year. Many people took advantage of the legislation as it then was to contribute $540,000.00 every three (3) years is the maximum allowed at that time. If such contributions were made then the entitlements of that person now exceed the newly introduced lifetime cap. If the total amount paid into super exceeded the $500,000.00 after the date of the budget then that person is now required to draw down the excess paid into superannuation cannot contribute any more non-concessional contributions to his/her fund. There would no penalty in drawing down the amount required. Once the limit of $500,000.00 has been paid into a superannuation fund, then no further non-concessional contributions can be made.

Further, the limit on the allowable before-tax concessional contributions is to be reduced from $30,000.00 to $25,000.00 per year from July 2017.

Because the Family Law legislation allows for the splitting of superannuation funds, many couples now separating may lose the ability to replace the entitlements in their fund if a splitting Order is made by the Court.

Because of the changes to the superannuation legislation, people in a relationship, after separation will find it harder to rebuild their superannuation if a splitting Order has been made on their fund.

Are there ways to protect yourself from the Superannuation Changes?

Alarm Bells are ringing – Nicole Pedersen in a cent article suggests 4 ways of minimizing the impact:

1. Split your pre-tax super contributions equally in marriage – the main goal may be to equalise balances so, as a family, pay in and amass as much as possible under the proposed stringent limits. Contribute as much as concessional – salary sacrifice – contributions as you can for a lower-earning spouse (from July 2017 it’s planned you’ll no longer have to do this through an employer).

2. Equalize your pre-tax contributions in marriage – if you and your spouse have unequal balances, you could also use the once-a-year opportunity to help even out balances by splitting concessional contributions paid into the higher balance account across to the other spouse’s super. Under the super splitting rules, you can move up to 85 percent of contributions into the other spouse’s account.

3. Split your post-tax contributions equally in marriage – this way, in the event of a subsequent relationship breakdown, neither spouse loses the right to make future non-concessional contributions. When making after-tax contributions progressively over time, share them between accounts. Also get freebies and tax benefits via after-tax spouse contributions (attracting up to a $540 tax rebate if, from July 2017, your spouse earns under $37,000) and a $1000 annual non-concessional contribution (to get the government’s co-contribution of up to $500 into the fund of someone earning under $50,454).

4. Split your super equally on divorce – possibly the only way to ensure both parties still have some capacity to rebuild their super if they have the money to do so. We’ll need to see the legislation to know if divorcees will be disadvantaged.

Article Source: the Family Law Act

Kanye Believe It Or Not? Kim Kardashian Can!

As reported recently in a ‘very reliable’ gossip magazine, Kim Kardashian and Kanye West’s marriage is on life support right now, but don’t expect a Court showdown if they do go their separate ways.

Radaronline.com has learned the couple has hammered out an agreement on how to potentially divide their assets – including the kids – in the event of a split.

The benefit of a Financial Agreement

One would assume that Kim Kardashian would hold onto her cash worth millions as well, although this is not stated in the article.

We can only assume that Kanye would hold onto enough cash to make his life happy but not to the extent of Kim.

Kim has primary custody of the children, North and Saint. Kanye no doubt has visiting rights and will spend time with them.

A dignified resolution.

No fighting in the Courts. The Agreement spells everything out and their financial settlement will be in accordance with the terms of the Agreement. Minimum hassle. In Australia parties also have the benefit of financial agreements. They can be entered into whilst in a de-facto relationship, before marriage, during the marriage, and after a divorce.

Again the Agreement can set everything out which means a dignified resolution if a separation should occur.

The Agreement has to be specific in its terms. You would not want the parties to squabble for the meaning of its terms. Detailed drafting is essential in clear and precise terms.

If the Agreement has flaws or does not comply with the provisions of the Family Law Act then it can be overturned at great expense. It is best to have the drafting done properly in the first instance to prevent a fight between the parties in the future.

They are not simple documents. Refer to an article on our website on Financial Agreements for further details.

Article Source: Kanye Believe It Or Not

Queensland Surrogacy Process in Australia

SURROGACY – A COMPLICATED PROCESS IN QUEENSLAND AND AUSTRALIA

What is the surrogacy process in Australia?

A surrogacy arrangement is an arrangement between a woman ( the “birth mother”) and another person or persons ( the “intended parent or parents”).  The birth mother can give birth to a child with the intention that the child is to be treated as the child of the intended parents.  It is intended that the parents will then have custody and guardianship of the child.

Commercial surrogacy arrangement

A commercial surrogacy arrangement occurs if the birth mother receives any type of payment, reward or other material benefit or advantages from giving birth to the child. Commercial surrogacy arrangements are not legal in Queensland nor Australia (apart from the Northern Territory where there seems to be little legislation in regard to this).  The birth mother can be compensated for reasonable medical, legal and counselling expenses arising from the birth of the child.  These payments do not render the surrogacy arrangement a commercial one.

Parentage order and the Surrogacy Process

An order is made by the Children’s Court for the transfer of the parenting of the child to the intended parents.

Surrogacy arrangements can only occur if the intended parents for medical or other reasons are unable to conceive and give birth to a child.  In the case of female same-sex couples, both intended parents must be able to show that both women are unable to carry or conceive a child on medical grounds.

There are strict requirements for entering into any surrogacy agreement and those requirements must be complied with.  The agreements must be entered into prior to the child being conceived.

Even if the parties enter into a surrogacy agreement in Queensland these agreements are unenforceable.  This means that the parties cannot enforce the arrangement if things go wrong. In such circumstances, the parties are required to bring an application to the Family Court pertaining to the parenting of the child.  The Family Court will then engage in an assessment of the child’s best interest.

To legalise the arrangement after the birth of the child the parties must apply for a parentage order 28 days after the child is born and before the child is 6 months old.  Such applications are brought before the Children’s Court.  There are strict conditions and regulations that must be adhered to and complied with if this application is to be successful.

The requirement to obtain independent legal advice and counselling.

The legislation requires that all parties to a surrogacy arrangement obtain independent legal advice and counselling before entering into any agreement.

Overall surrogacy arrangements are complicated in Queensland.  Further information may be obtained on this by visiting our website. 

Article Source: surrogacy australia 

Warning: Delays in Court Expected

 

Families and Children look set to suffer more in Queensland than anywhere else in Australia Court.

If you are contemplating going to either the Family Court of Australia or Federal Circuit Court of Australia to settle issues relating to the breakdown of your relationship including issues surrounding who your children spend time with, you could be in for a rude shock.

It now seems certain that timeframes for your matter to be heard will increase considerably due to the movement away from the Brisbane Registry of the Family Court and to the Appeal division of such Court.

Justice Graham Bell retired last year and it was announced in late 2015 that Justice Michael Kent was promoted to the Appeal division of the Family Court.  Judge Demack of the Federal Circuit Court in Brisbane has accepted a permanent posting in Rockhampton further depleting the stock of family law judges in Brisbane. This means that now there are only two judges sitting in the trial division of the Family Court in Brisbane to determine matters in the Court.  Subsequently, the already overwhelming demand on the Family Court in Brisbane will be stretched further, undoubtedly pushing back hearing and trial times which already can be set down for a time more than 12 months in the future.  Further to this, any judgments made by these judges post-trial may also be delayed as the judge’s workloads increase.  It is already not uncommon for a judgment to be handed down more than 12 months after the trial of a matter.

As a result of this, the Federal Circuit Court of Australia (which deals with the majority and less contentious of family law disputes in Australia) will be placed under more pressure to handle its caseload as the Family Court will not be able to assist in determining as many cases.  The Federal Circuit Court is already experiencing similar delays to that of the Family Court of Australia.

When you consider that this will leave Brisbane with 10 Judges in the Federal Circuit Court, two in the Family Court and two in the Appeals division of the Family Court (who only hear appeals to decisions and not cases at first instance), compared to 15 Federal Circuit Court Judges in Melbourne and 21 in Sydney (not to mention the further judicial members of the Family Courts and Appeals Courts in both other cities), it seems clear that the Brisbane families will experience long delays.

All of this could very easily mean that from the date you file your Initiating Application with the Court you may be waiting in excess of three years to have a result.

Consider what this will mean for family relationships.  A father or mother who may be fighting to see their young child may not see them for all of this time.  By the time the parent and child are reunited the child may have no understanding of who that person is and will have no bond with that person.  On the other hand, if the child is 12-14 once proceedings commence the child may well be nearing adulthood by the time a decision has been handed down, and thus the parent and child will have lost the final years of childhood with that parent.  Scary stuff indeed.

Consider also the dramatic increase in cost over this time of retaining legal representation over that time.  IT will cost significant time with family members, substantial cost and untold stress on Queensland families.  Suffer the little children indeed.

For a Delays in Court which holds the best interests of the children as their paramount consideration, it seems clear that something must be done to increase judicial staff in Brisbane and that is a cause we should all consider our role in supporting.

So how do we avoid these delays?  Read Family Lawyer Charles Noble’s next article on Alternatives to Court and how it can save you time, money, and stress.

Article Source: Family court Australia