Wightons Lawyers news

29 April 2016 - New Child Protection Laws

  • By Website Team Technicians
  • 23 Jun, 2017

New Child Protection Laws - By Jessica Greene

On 1 March 2016, significant changes to the child protection legislation in Victoria - The Children, Youth and Families Act 2005 (CYFA) - came into effect. Some changes include:

  • Limits to when a child will be reunified with a parent;
  • Changes to the names of Protection Orders; and
  • Changes to conditions that may be included on orders
As of 1 March 2016, if a child is subject to any of these orders, the name of that order will have been changed:
Some orders already existing as at 1 March 2016 will remain until they expire. Some, such as Custody to Secretary Order, automatically converted to a Family Reunification Order.


LIMITS TO REUNIFICATION

The most significant change is the inclusion of mandated timelines in which a child can be reunified to their parent or parents.              

When a child has been placed in out of home care by an order of the Children's Court, parents will have an initial 12 months to address the protective concerns which have been identified in order for the child to safely return home.

If a child is placed on a Family Reunification Order and reunification to a parent does not occur in this 12 month period, the court will only be able to extend this order to work toward reunification if:

  • it is satisfied that there is compelling evidence that it is likely that parent of the child will permanently resume care of the child during the period of the extension;and

  • the extension will not have the effect that the child will be placed in out of home care for a cumulative period that exceeds two years.

If a child has been in out of home care for over two cumulative years, the court will no longer have the power to make an order that aims for reunification.

When calculating the time a child has been in out of home care, a court will consider special arrangements including child care or subsequent direct care by a parent.



PARENTS WITH CHILDREN IN OUT OF HOME CARE

If your child has been placed in out of home care, it is very important that you do not delay in addressing the protective concerns that led to their removal. You should ask your Child Protection worker to provide you with specific information about what is expected of you, including a list of support services they recommend you should engage with to address these concerns.

Review of Case Plan

When a Children's Court Order has been made in relation to your child, Child Protection will continue to be involved. Any decisions that Child Protection make in relation to your child which they consider are significant and related to your child's present and future wellbeing will be set out in the case plan. Such decisions may include:

  • a decision for non-reunification to parental care;
  • a decision which relates to your contact with your child; and/or
  • a decision about where your child should live
You should ask your Child Protection worker for a 'request for review of child protection decision' form if you do not agree with a Child Protection case plan decision. Once the internal review has taken place, if you are not happy with the outcome, you may then apply to the Victorian Civil and Administrative Tribunal to review the decision.

If your child is on a Family Reunification Order and the case plan does not support reunification, in some circumstances, Victoria Legal Aid may provide a grant of legal assistance for a lawyer to assist you in having your case plan reviewed.

Please contact Jessica Greene  on 5226 4118 should you have any queries about how the new laws may affect you or otherwise require assistance in relation to your child protection matter.
By Website Team Technicians 23 Jun, 2017

The Powers of Attorney Amendment Act 2016 and the Power of Attorney Amendment Regulations 2017 have come into effect as and from 1 May 2017.

The updates provide the long awaited ability to appoint multiple ‘alternative’ attorneys.

This is particularly useful where clients wish to appoint their spouse as their attorney in the first instance, and only on the death or incapacity of that spouse, then an appointment of two or more of their children. Although this was previously possible by executing multiple enduring powers of attorney documents with special conditions, it is now possible to simplify this arrangement in a single document.

The updates also provide minor alterations to the forms, including the removal of the revocation clause in most instances. Unless specifically stated in the document, the execution of a new enduring power of attorney will revoke all previous appointments regardless of whether those appointments were made under the Instruments Act or the Guardianship and Administration Act or the Powers of Attorney Act.

Enduring powers of attorney remain an essential part of all estate plans. Should you wish to discuss any of the new changes please contact Jesse Rankine on 03 5226 4106 or by email at jesser@wightons.com.au.

By Website Team Technicians 23 Jun, 2017
We wish to announce that we have acquired the legal practice of the late Randell Bell. Mr. Bell’s assistant Beryl Smith has also made the transition to our office. If Mr. Bell’s clients have any queries we encourage them to contact us at our Geelong office.
By Website Team Technicians 23 Jun, 2017
Separated parents are often unsure or unable to communicate with the other parent when deciding what time the children will spend with each parent. The first step for separated parents is to attend for Family Dispute Resolution (“FDR”) through organisations such as CatholicCare or the Family Relationship Centre. This is similar to mediation.

Family Dispute Resolution allows the parents to negotiate care arrangements for children, including spending time with each parent weekly as well as special occasions such as Christmas, birthdays and school holidays. If determined to not be in the children’s best interest to spend equal time with each parent then the children should live with one parent and spend substantial and significant time with the other parent, which includes weekend and other short blocks of weekday time during a fortnight. Further, the issue of equal shared parental responsibility or sole parental responsibility which identifies who will make major issues relating to the children’s health, schooling and any other long term decisions will also need to be decided by the parents. If an agreement is reached then the FDR convener will draft a written parenting plan which both parents can sign.

A parenting plan is not binding and cannot be enforced by the Family Court or Federal Circuit Court of Australia if one parent does not comply with it. If either parent decides to make an Application to the Family Court or Federal Circuit Court then a signed parenting plan would be persuasive evidence for the Court to consider when making any Orders relating to any future care of the children.  

A parenting plan can be drafted into Consent Orders which may be filed in the Geelong Magistrates’ Court. Both parents must sign the Consent Orders. They are not required to obtain independent legal advice but this is recommended.

Alternatively, if parents have already reached an agreement for the children’s arrangements to spend time with each parent including special occasions then Consent Orders can be made without attending mediation. It should be stated that Court Orders are not mandatory.  

The parents must comply with the Court Orders. If either parent does not comply with the Orders then a Contravention Application will need to be filed with the Court.

If FDR is unsuccessful or one parent is unwilling to attend FDR, then the convener will issue a Section 60I Certificate which allows either parent to file an Application to the Family Court or Federal Circuit Court. The Court does not accept Applications in relation to children’s matters without the Section 60I Certificate unless there is an exemption, such as child abuse, family violence or is an urgent matter, such as a recovery of a child from the other parent.

All decisions relating to children are based on the best interests of the child. Our family law team would be happy to discuss with you any concerns you may have and work towards an outcome which promotes your child’s best interests.  
By Website Team Technicians 23 Jun, 2017
We have great pleasure in announcing that we have opened a new satellite office in Ocean Grove. This office will operate every Thursday and will be run from the offices of Roche Accounting, Shop 2, 65 Madeley Street, Ocean Grove. For further information please refer to the   contact   section of our website.
By Website Team Technicians 23 Jun, 2017

If a person dies without signing a valid will they die ‘intestate’. This means that the distribution of their estate will be made in accordance with the rules of intestacy.

These rules can be simple or complex depending on your family situation.

Two common misconceptions are that, if you die without executing a will, then:

1. Your estate will pass to the government; or

2. Your surviving spouse will inherit 100% of the estate.

Although both scenarios are possible, both are relatively rare. One requires the person to have died leaving no next of kin and the other requires the person to have died leaving a spouse but no children.

It is more common for a person to die leaving both a spouse and children. The current intestacy rule for this situation is as follows:

  • The spouse receives the first $100,000 plus 1/3rd of the balance; and
  • The children share the remaining 2/3rds of the balance.
For example, if a person dies with a spouse, two children and a $500,000 estate:
  • Spouse = first $100,000 + $133,333 (being 1/3rd of the balance) = $233,333
  • Child 1 = $266,666 (remaining 2/3rds of the balance) / 2 children = $133,333
  • Child 2 = also $133,333

The inequality of the current formula is better illustrated where there is a spouse, a single child and a $1,000,000 estate:

  • Spouse = $100,000 + $300,000 (being 1/3rd of the balance) = $400,000
  • Only child = $600,000 (being the remaining 2/3rds of the balance)

In the above example, the child obtains significantly more than the spouse. Most people would want the opposite.

Perhaps this is the reason why the new Administration and Probate and Other Acts (Succession and Related Matters) Bill 2016 now proposes to change the rules of intestacy. Under the new rules if a person dies leaving both a spouse and children the division will be as follows:

  • Spouse = first $451,909 plus ½ of the balance
  • Children = remaining ½ of the balance
  • NOTE: Only children that are not the children of the spouse are entitled to the remaining ½ balance, otherwise the Spouse will receive all of the estate.

This means that, typically, 100% of the intestate’s estate will pass to the surviving spouse unless there are children from other relationships.

The introduction of the above Bill illustrates the importance of having your own will as opposed to leaving the distribution of your estate to the default rules of intestacy. Because the rules are updated from time to time, it is impossible to know what the rules will be at the time of your passing. It would be naive to assume that the rules will not change again at some point. The only way to be completely confident of how your estate will be dealt with is to have your will prepared and executed with a suitably experienced solicitor.

Should you wish to know more on these issues, please contact Jesse Rankine on 03 5226 4106 or by email at   jesser@wightons.com.au .

By Website Team Technicians 23 Jun, 2017
Wightons Lawyers welcomes our newest lawyers Melanie Wyatt and Ben McLean. Melanie is an experienced family lawyer whilst Ben is a recent graduate practicing in a variety of areas. You can view their full profiles on our
PEOPLE   page.
By Website Team Technicians 23 Jun, 2017

For many families of children with severe disabilities the future can represent a time of uncertainty and angst. As parents age, questions as to the ongoing care and accommodation needs of their adult child can loom large.

In 2006, the Federal Government amended the   Social Security Act 1991    (Cth) (‘the Act’) to allow for the creation of what is known as a ‘Special Disability Trust’. The purpose of a Special Disability Trust is to enable families to provide for the future needs of a person with a severe disability or medical condition. This can be done by way of contributing, for example, a home and money to a Special Disability Trust, established for the benefit of a specific person, known as the beneficiary. A beneficiary is only entitled to have one Special Disability Trust established for their benefit.

In broad terms, a Special Disability Trust can provide for reasonable accommodation needs (which may include the payment of rent or the purchase of a primary residence), reasonable care needs (such as mobility aids, modified vehicles, communication devices etc), medical and dental expenses (including health insurance) and limited discretionary expenditure of up to $11,000 per year. The discretionary expenditure can be used to meet additional costs relating to the health, wellbeing, recreation, independence and social inclusion of the beneficiary.

A beneficiary may have up to $636,750 in trust assets (as at 1 July 2015 and indexed annually to the CPI) before their Disability Support Pension, or other social security payments, are affected. In addition, a home can be contributed to a Special Disability Trust, and provided it is the beneficiary’s primary residence, it will be exempt from asset test assessments. By way of example, parents could contribute a house for their adult child to live in as their primary residence, along with $500,000 for their care. In such a scenario, the house would be exempt from assessment and the $500,000 is under the current concessional limit, therefore there would be no effect to the beneficiary’s receipt of a Disability Support Pension.

In order to qualify for a Special Disability Trust, a beneficiary must meet eligibility criteria and the definition of severe disability as provided for by s 1209M of the Act. An impairment which qualifies the beneficiary for receipt of a Disability Support Pension is an example of eligibility, however there are a number of specific criteria which must be met, and which are assessed by Centrelink.  

Not any trust can be classified as a Special Disability Trust. A Special Disability Trust must be established by trust deed which complies with clauses as set out in the Model Trust Deed provisions under the Act. Such a trust can be established whilst family members are still alive or alternatively as a testamentary trust established through a Will, in which case the Special Disability Trust will not come into effect until such time as the person making the Will is deceased.  Establishment of a trust whilst family members are still alive can provide substantial taxation and social security benefits by way of generous gifting concessions of up to a combined sum of $500,000 for eligible immediate family members of the beneficiary.      

A Special Disability Trust terminates on the death of the principal beneficiary and the assets of the trust will then vest in the residual beneficiaries named in the trust deed. A trust can also end at an earlier point in time if all the assets are fully expended.

Special Disability Trusts must comply with strict rules, reporting and auditing requirements and do not suit the needs of all families. However, if you believe a Special Disability Trust has the potential to be of assistance to you and your family, and provide peace of mind then please contact us to discuss this further.

By Website Team Technicians 23 Jun, 2017
On 1 March 2016, significant changes to the child protection legislation in Victoria - The Children, Youth and Families Act 2005 (CYFA) - came into effect. Some changes include:

  • Limits to when a child will be reunified with a parent;
  • Changes to the names of Protection Orders; and
  • Changes to conditions that may be included on orders
As of 1 March 2016, if a child is subject to any of these orders, the name of that order will have been changed:
By Website Team Technicians 23 Jun, 2017

The   Powers of Attorney Act 2014   (“   the Act   ”) introduced significant changes to enduring powers of attorney in Victoria. The changes under the Act, outlined below, came into force on 1 September 2015.

The Act:

  • Introduces a new enduring power of attorney form;
  • Changes some formalities surrounding enduring powers of attorney;
  • Introduces a new ‘supportive attorney’;
  • Defines the duties of an attorney; and
  • Creates new offences for attorneys.
     

Importantly, the Act does not invalidate any pre-existing enduring power of attorney and it does not make any changes to enduring powers of attorney for medical treatment.

There is some new terminology in the Act. The person giving the power is now referred to as a ‘principal’ (previously donor). General powers of attorney are now referred to as ‘non enduring powers of attorney’.  

‘Enduring Power of Attorney’ (“EPA”)

The Act has introduced a new enduring power of attorney form which is entitled ‘Enduring Power of Attorney’ or ‘EPA’. EPA combines the documents which were previously known as ‘   Enduring Power of Attorney (Financial)   ’ and ‘   Enduring Power of Guardianship   ’.

The Act now labels guardianship matters as ‘personal matters’. Personal matters have been expanded to include:

  • Deciding where and with whom the principal lives;
  • Deciding which persons the principal associates with;
  • Deciding whether and where the principal works;
  • Deciding whether and where the principal undertakes education or training;
  • Deciding daily living issues such as diet and dress; and
  • Deciding health care matters.


Under the Act it is now possible to appoint more than one personal attorney in the same manner that was previously only available to the appointment of financial attorneys.

Additionally, the Act now allows for the appointment of ‘majority attorneys’.

Although the new EPA form now allows for the appointment of financial attorneys and personal attorneys in the one document, there are situations where separate documents are preferable. Fortunately, the Act provides flexibility on whether a combined document or separate documents are used.  

FORMALITIES

The Act has amended the witnessing requirements for EPAs. Previously, two witnesses were required to be present, with one being authorised to witness statutory declarations. It is now a requirement that one of the two witnesses is authorised to take affidavits or be a medical practitioner.

There is now a prohibition on the witnesses being related to the principal or to any attorney appointed in the EPA. There is also a prohibition on the witnesses being care workers, health providers or accommodation providers for the principal.

Furthermore, there is a prohibition on the principal appointing a care worker, health provider or accommodation provider as their attorney. The Act is referring to   professional   care workers and accommodation providers. Centrelink carer’s pensions are specifically excluded from consideration when determining whether an attorney is a care worker for the principal. Similarly, a principal that resides with an attorney is permitted provided the attorney is not acting as a professional accommodation provider for the principal.
 

SUPPORTIVE ATTORNEY

A supportive attorney is a person who is authorised to exercise any of the following powers:

  • Information power;
  • Communication power; or
  • Giving effect to decisions.
     

Supportive attorneys are unable to assist in ‘significant financial transactions’ (defined generally as a transaction dealing with land or finances in excess of $10,000.00). Additionally, a supportive attorney is only able to exercise their powers whilst the principal retains capacity.  

DUTIES

The Act now outlines the duties of an attorney. These duties are as follows:

  • Act honestly, diligently and in good faith;
  • Exercise reasonable skill and care;
  • Not use the position for profit;
  • Avoid acting in a conflict of interest;
  • Not disclose confidential information; and
  • Keep accurate records and accounts.
     

OFFENCES

It is now an offence for an attorney to obtain or to use an EPA to obtain financial advantage or to cause loss to the principal. A fine of up to 600 penalty units or up to 5 years imprisonment can apply where an attorney is guilty of an offence.

Additionally, an attorney who breaches their duties and causes loss to the principal will be liable to indemnify the principal or the principal’s estate.

It is important to note that the new offence provisions under the Act will apply to all attorneys, whether authorised under the (new) Act or the   Instruments Act 1958   .

Finally, attorneys are now unable to enter into ‘conflict transactions’. A conflict transaction is simply a transaction that conflicts between the interests of the principal and the attorney, or a relative, associate, or close friend of the attorney. A principal may authorise an attorney to conduct conflict transactions in the EPA document and it is therefore important to consider what type of conflict transactions should be permitted at the time of preparing the EPA.

Enduring powers of attorney remain an essential part of all estate plans. Should you wish to discuss any of the new changes or would like to know more on these issues, please contact Jesse Rankine on 03 5226 4106 or by email at   jesser@wightons.com.au   .

By Website Team Technicians 23 Jun, 2017
Wightons Lawyers is thrilled to have published our new (and much improved) website. We will now be providing our clients with regular updates and articles through our website and also through a quarterly e-mail newsletter. Should you wish to subscribe to our e-mail newsletter you can do so here. Our updates will also be posted on   LinkedIn   and   Facebook .
Share by: