Month: April 2021

Drug offences

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Written by Karen-Anne Cornell

Do I need a lawyer for if I have been charged with a minor drug offence?

In our experience, people achieve better outcomes when they are legally represented (or when they have at least obtained legal advice).

In some instances, a person’s career may be adversely affected as some professionals are required by their employers or governing bodies to disclose such charges, even if no conviction is recorded.

People can often be surprised that they can be charged with a drug offence even if the drugs were not theirs, such as if it was located on the back seat of their car but belonged to their passenger. Before speaking to police, it is crucial that you speak with a lawyer so that you can understand the potential consequences before doing so.

The penalties which can follow pleading guilty to a drug offence can vary depending on a number of factors such as the type of drug involved, the quantity, and whether you have a criminal history and if so whether or not you have been charged with this type of offence previously.

Choosing whether to plead guilty or not should be a decision you make with the help of your lawyer after being advised of all of your options depending upon your circumstances. For first time offenders who wish to plead guilty, rehabilitative options such a drug diversion program which aims to educate the person about the harmful effects of drugs can be a good alternative to other forms of penalties.

To discuss your options, contact us as soon after being charged with a drug offence as possible. At the Summit Law Group, we have many years of experience in providing the strongest representation.

Domestic violence offences

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Written by Karen-Anne Cornell

Do not risk your liberty.

If you have been charged with breaching a domestic violence order you should seek immediate legal advice from a qualified lawyer, experienced in dealing with these types of offences. At the Summit Law group, we have over 55 years of experience behind us in criminal matters and advocating strongly for our clients.

In some circumstances, being charged with a contravention of a domestic violence order will make it more difficult for you to be granted bail, meaning you could be sent straight to prison where you will then await trial or sentencing.

You may find yourself in a “show cause” situation, wherein you must satisfy the court as to why you should not be sent to prison. You may not make bail if you have been charged with any of the following:

  • A charge involving choking, suffocation or strangulation in a domestic setting under the Criminal Code Act 1899 (Qld).
  • Breaching a domestic violence order where you have been charged in the past for this offence.
  • An offence such as deprivation of liberty, threatening violence or stalking if the offence is also contravention of a domestic violence order.
  • An offence for which you can be punished by a maximum penalty of incarceration of at least 7 years if the offence is also a domestic violence offence.
  • Contravention of a domestic violence order where violence to a person or their property was involved (including the threat or attempt of violence).

In both New south wales and Queensland prison sentences involving actual incarceration are regularly imposed, even if it is your first offence in some cases. At the Summit Law Group we have a vast experience in maximizing our client’s prospects of success in being granted bail and avoiding prison.

For a free consult contact the Summit Law Group as soon as possible if you have been charged with any type of domestic violence offence. Our results speak for themselves.

My children don’t want to see the other parent. Do I need to force them?

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Written by Karen-Anne Cornell

This is one of the most common questions put to a family lawyer following separation.

What you need to know

If you are the parent with whom the children live and they are saying they do not want contact with the other parent, there may be a number of reasons for the children’s resistance to spend time with your ex-spouse.

In some rare instances, child abuse may be alleged. If the children have experienced domestic violence by the other parent towards you or themselves, this can also play heavily on their minds. However, if neither of these factors apply, the children may be aligning themselves with the parent with whom they feel most connected. Alternatively, it may be the case that they have simply not seen the other parent for quite some time and have anxiety around spending further time with them. It is important to talk to your children about the situation without judging them or giving them any negative messages about the other parent. It is also advisable to talk to the other parent wherever this is possible to try to resolve matters without the intervention of the court.

Ultimately, if the children are not at risk of harm in the other parent’s care, it is more beneficial for children to have the benefit of two loving parents in their lives. While not apparent now, they could suffer feelings of abandonment later in life, which is not healthy for their long-term well-being.

If the matter cannot be resolved without litigation, these are the factors the court will take into account:

  • 1. Section 60B(1) of the Family Law Act 1975 (Cth) provides that the objects of the Act are to ensure that the best interests of children are met by:- (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
  • 2. In Mazorski v Albright (2007) 37 Fam LR 518 at [26], Brown J said the definition of “meaningful” is synonymous with “significant”, “important” or “of consequence”.
  • 3. There only needs to be the chance of a meaningful relationship for the court to consider that the children should spend time with the other parent, regardless of their resistance to do so, (Cotton & Cotton (1983) FLC 91-330 at 78,252).
  • 4. If no unacceptable risk factors are present, the court will want the children to start spending graduated time with the absent parent (potentially in a therapeutic reunification regime).
  • 5. If court orders have been made for the children to spend time with the other parent, it may not considered a reasonable excuse to breach court orders by simply saying that the children do not want to go. It is expected that the resident parent will try to encourage them to do so, and penalties may apply if a contravention application is filed, (see Cartland & Cartland).

If you find yourself in the situation where your children express a wish not to communicate with your ex-partner or spouse, it can be one of the most distressing things you may ever face. It is vital, therefore, that you obtain sound legal advice as quickly as possible. We are highly experienced family lawyers who can guide you safely through this difficult time and help you to achieve the best possible outcome, for you and your children, no matter the circumstances.

To book your free no obligation consultation contact us today so we can protect you and your family to navigate your way through this highly complex journey.

Can I appeal Family Law Consent Orders?

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Written by Karen-Anne Cornell

The short answer is yes. It is not true that you cannot appeal these types of orders. While it is not open to you to appeal them on the merits (because a court did not make the orders after a full ), other grounds of appeal may be available to you, such as the discovery of fraud or new evidence which was not available at the time the orders were made.

In the case of parenting orders, the overarching principal will always be the rights of the children and orders which serve their best interests.

In the case of Ellsworth & Hunnisett [2021] FamCAFC 6 (4 February 2021), a father appealed consent orders which provided for the mother to have sole parental responsibility and for him to spend no time with their 10 -year- old child. It was also ordered that if any other application was to be brought before the court following the making of the consent orders, the father was to provide a psychiatrist’s report detailing his rehabilitation from polysubstance abuse; four clean drug tests and evidence proving the absence of domestic violence proceedings.

In his appeal, the father argued that his legal team had been incompetent and that as such, he had been “stripped of his rights as a father”, ([29]) which led to a miscarriage of justice.

In dismissing the appeal it was stressed that the orders had been presented to the court as those which were in the child’s best interests and that:

  • “No legislated ‘right’ of a parent is infringed by the making of parenting orders driven by the imperative of meeting the best interests of a child..” ; [35] and further that
  • Consent orders will always be “open to appeal on the grounds of matters such as fraud, mistake, fresh evidence, [or] absence of jurisdiction …” (Robinson and Willis [1982] FamCA 16]. In the case of Ellsworth & Hunnisett, none of these factors were present.

In summary, Ellsworth and Hunnisett is a reminder that any orders can be appealed, (even those made by way of consent), provided the grounds of the appeal can be established.

If you wish to appeal a family law consent order, (or a final order made by the court after a hearing), it is imperative you seek legal advice as soon as possible, as strict time limits apply.

To speak to one of our experienced team at the Summit Law Group who will assess the strength of your case, book your no obligation free consultation today.

Living Will and POA

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Written by Karen-Anne Cornell

The Devil is in the Detail – Living Wills

A living will does not relate to the distribution of your estate upon your death. Instead, it sets out your wishes as to how you may want to be cared for if you ever become terminally ill or injured, and unable to communicate your own preferences in this regard.

A good example of a living will is where you might be planning to undergo complicated surgery and do not wish to be resuscitated, or have life support administered in certain circumstances. Doctors will take your living will seriously and respect your wishes as far as possible provided that the document is detailed enough to guide them through the medical situation that arises.

However, if your living will is too vague, it may be of no use to your doctor at all, as it can only deal with the precise terms and conditions that you have specified. Should anything else arise that you did not anticipate and mention in your living will, such as needing a feeding tube for example, then the document is likely to be of no benefit to your doctors at all.

It is therefore recommended that together with your living will, you also have a Power of Attorney.

The Power of Attorney ensures that in the event of the unexpected, a trusted person of your choice makes the kind of vital decisions for you that you would want then to make, should you lose capacity to express these wishes yourself. Under the terms of the medical Power of Attorney, your agent known as the attorney has the right to direct your treating practitioner regarding all methods of treatment which might be discussed. Without one, any surprise situations are left entirely to your doctor’s interpretation of what he or she decides should happen.

Your Power of Attorney can also authorise your chosen person to manage a range of matters for you (as well as your medical situation), such as accessing your finances and paying bills (for instance medical bills), while you are incapacitated. For total peace of mind, it is always recommended that you make both a living will and a Power of Attorney.so that you and your lifestyle are protected should the unexpected ever occur.

For more information regarding a Will or Power of Attorney, please contact our experienced team at the Summit Law Group Australia on TEL NO to arrange an appointment.

For a limited time only, our fees are just $198 for a Will and $99 for a Power of Attorney.

Call us today to take advantage of this offer.

Remote Signing of wills and POAs

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Written by Karen-Anne Cornell

Coronavirus – News Update for Wills and Powers of Attorney

You can now make a Will or Power of Attorney without leaving the comfort of your own home, or from anywhere you may be in the world during the coronavirus pandemic.

Wills and Powers of Attorney can now be witnessed remotely and it takes only a few minutes. This means that if you are unable to attend upon a lawyer due to your location, or due to feeling unwell, or because you are a vulnerable person in these difficult times, you can still organise a legally valid Will and Power of Attorney to give you the peace of mind that your affairs are in order.

For more information regarding a Will or Power of Attorney, please contact our experienced team at the Summit Law Group Australia on TEL NO to arrange an appointment.

For a limited time only, our fees are just $198 for a Will and $99 for a Power of Attorney.

Call us today to take advantage of this offer.

POA and Undue Influence

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Written by Karen-Anne Cornell

Power of Attorney and Undue Influence – The Risks

Enduring Powers of Attorney is a vital document which allows a person (“the principal”) to appoint an attorney to make decisions for them in respect of their financial affairs, management of their finances, health and a range of other personal matters. The Enduring Power of Attorney becomes effective when the principal has lost capacity to make important decisions for themselves.

Once appointed, an attorney owes a serious legal duty to act in the principal’s best interests at all material times. They need to be aware that a great deal of caution is required if they intend to make any transactions with the principal, such as the principal giving them, or their associates or relatives any form of benefit. In such situations, there is a presumption of undue influence. This means that a court or tribunal will assume the attorney used their position to take advantage of the principal and unduly influenced them to gain the benefit, unless they can prove otherwise.

The case of Baker & Ors v Affoo & Ors [2014] QSC 46, which was heard in the Supreme Court of Queensland is a prime example of this risk. In that case the facts were as follows:

  • Before Edward Blair’s death, he had appointed his best friend and neighbour William Afoo as his attorney by way of an Enduring Power of Attorney.
  • Edward also transferred his property to William’s two sons. At about the same time, Edward prepared a will leaving each of his three children only $200 and the residue of his estate to William. Upon Edward’s death, William and his wife Rhonda were appointed as executors of the will.
  • Edward’s children, (“the Bakers”), commenced court proceedings against William and his wife, claiming that William must have unduly influenced Edward while he was the acting attorney for William pursuant to the Enduring Power of Attorney.
  • Given that property had been transferred from a principal of an Enduring Power of Attorney to an attorney, the Court was asked to decide whether William could (in the Court’s view0 successfully rebut the presumption of undue influence, which is set out in section 87 of the Power of Attorney Act 1998 (Qld).
  • William provided evidence of Edward’s capacity and intentions at the time of making his new will, but ultimately the Hon Justice Jackson decided that the evidence was not enough to rebut the presumption that William must have unduly influenced Edward. As such the Court ordered:
    1. a constructive trust over the property;
    2. the Baker sons become executors of their late father’s estate;
    3. the respondents pay the applicants’ legal costs; and
    4. the matter be adjourned to hear the Bakers’ Family Provision claim about the will.

Conclusion

Despite William thought he was acting in his friend’s best interests and effecting his wishes; and despite there was some evidence before the Court that Edward had wanted for some time to disinherit his children, William was unable to rebut the presumption of undue influence. There were several ways this unfortunate situation could have been avoided and for Edward to have achieved his wishes regarding his estate.

Attorneys under an Enduring Power of Attorney should always consider their duties carefully. It is recommended that they seek independent legal advice about how best to protect themselves and / or their associates and relatives from unnecessary litigation and the associated costs.

For more information regarding Enduring Powers of Attorney, an attorney’s duties, making an Enduring Power of Attorney, a will or obtaining advice if you suspect someone you know has been unduly influenced, please contact our experienced team at the Summit Law Group Australia on TEL NO to arrange an appointment.

The Real Power Behind Your Power of Attorney

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Written by Karen-Anne Cornell

Making a Power of Attorney is critical regardless of your age or circumstances. It gives you peace of mind that should you ever lose capacity to make major decisions for yourself about your health or finances, someone you know and trust can lawfully make them for you. If left to chance, your family may have to apply to a State or Territory Tribunal to be granted the power to make decisions and protect your assets on your behalf – a process which can take weeks, or even months.

By making a Power of Attorney, you are taking control of the unforeseen by stipulating who can make decisions for you, when they can be made and what kind of decisions another can make if you are ever unable to make those decisions for yourself. A Power of Attorney protects you, your family and finances. It is therefore crucial that it is legally valid.

While each State and Territory has its own legislation a Power of Attorney, and whilst there are other factors to take into account when considering whether a Power of Attorney should be upheld or revoked, the real power behind its validity is your mental capacity at the time that the document is made.

Capacity has been described in the case of Gibbons v Wright as: The mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.

If you lose capacity before you have made a Power of Attorney, it is too late to make one, so making one beforehand is vital. Common examples of loss of capacity are:

  • Being in a coma
  • Going through an operation or procedure in hospital
  • Suffering from dementia or experiencing another form of mental illness, which renders a person unable to make decisions.

Any doubt about a person’s capacity to make a Power of Attorney can result in the document (and therefore the power) being revoked.

Application to have a Power of Attorney revoked can be made by any interested party. Any person may do so if they suspect that you had no capacity when making the document. These types of applications typically arise where there is a family dispute about your nominated Attorney and their actions. They can also arise where a concerned person thinks that the Attorney might have been nominated by having taken advantage of you if you were incapacitated and vulnerable when you agreed to make the nomination.

Should your Power of Attorney ever be challenged, solicitors and doctors are the types of professionals who can be called upon to give evidence as to your ability to understand the nature and effect of the document when it was made. An experienced lawyer will always make detailed notes about your capacity at the time of making a POA, so that you can call upon them if needed. A small amount of time now with our skilled team can not only help you understand the type of Power of Attorney you need, but to create a document which will ensure your wishes are achieved should you ever need to rely upon it.

For more information regarding your Powers of Attorney, an attorney’s duties, making an Enduring Power of Attorney, a will or obtaining advice if you suspect someone you know has been unduly influenced, please contact our experienced team at the Summit Law Group Australia on TEL NO to arrange an appointment.