Latest Legal Blogs
From Glossy Brochures to Real Responsibilities: A Beginner’s Guide to Body Corporates
So, you’re looking to buy your next home: you find an apartment in a new development in the city, close to your favourite café, at the right price. You’re drawn in by the glossy brochures and can’t wait to use the steam room and stock your exclusive use wine cellar. But you’ve never lived in a community titles scheme before. In fact, you’re not even sure what a body corporate is, or what it does. This is an all-too-common experience for those considering buying into new, or existing, developments. Enquiries we often receive from our clients relate to the basics, such as: What is a body corporate, and what does it do? Simply put, a body corporate refers to the lot owners within a scheme which, as a collective, are conferred with distinct legal personality under section 33 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCMA’). At its core, your body corporate is required to carry out the following duties under section 94 of the BCCMA: administering common property and body corporate assets for the benefit of the owners of the lots included in the scheme (aka, keeping that steam room in working order); enforcing the community management statement (including enforcing any by-laws for the scheme in the way provided under the Act); and carrying out the other functions given to the body corporate under the Act and the community management statement. To assist it in carrying out its function, bodies corporate are vested with ‘all powers necessary for carrying out its functions’ under s 95 of the BCCMA, and may, inter alia: enter into contracts; acquire, hold, deal with and dispose of property; and employ staff. However, it is worth noting that this power is not limitless, and body corporates must be mindful not to act beyond their powers. What is a committee — is it the same as the body corporate? No, the role of a committee can be compared to the role of a board of directors in a large company and is distinctly different to the role of the body corporate. There must be a committee for the body corporate if the regulation module applying to the scheme requires it. The committee is the administrative arm responsible for the day-to-day management of the body corporate and is empowered to make decisions for the body corporate by virtue of section 100 of the BCCMA. Whilst compositions vary between schemes, committees are composed of members (lot owners) elected by their fellow members with positions such as chairperson, secretary, and treasurer. It is worth noting that the discretion of the committee to make decisions for the body corporate is not unfettered, and in this respect, committees are generally restricted from making decisions in relation to the following (example under section 52 of the Body Corporate and Community Management (Standard Module) Regulation 2020): fixing or changing contribution levies; changing rights, privileges, or obligations of members; starting legal proceedings. If there’s a body corporate and a committee, what is left for the body corporate manager to do? That’s a good question, and the answer is simple: it depends. The role of the body corporate manager is to support the body corporate in discharging its administrative function. You might be thinking that serves the same purpose as the committee, except that section 119 of the BCCMA allows community title schemes with a committee to engage a body corporate manager to exercise some, or all, of the powers of an executive member of the committee. Most commonly, a body corporate manager will be authorised to perform powers such as managing compliance with the BCCMA, preparing annual budgets, and issuing and monitoring levy payments. Why do I have to pay contributions? Subject to the applicable regulation module, a body corporate is required to establish and keep an administrative fund and a sinking fund. What is the difference? Well, it’s in the name. Sort of. The purpose of the administrative fund is to deal with the day-to-day running expenses of the body corporate, such as maintenance, repairs, and paying for any service contractors engaged by the body corporate (ensuring the steam room remains functional and common property areas are maintained). The sinking fund can be thought of as the ‘piggy bank’ of the body corporate. It deals with larger items of a capital or non-recurrent nature, such as replacing body corporate assets, or painting of the building. Each year the body corporate passes a budget for each fund, and it follows that contributions to those funds are levied on you, the lot owner. So, should I buy into that new development after all? Well, that’s a matter for you. It might be that you take some comfort in knowing the reality, at least from a governance perspective, that community title schemes are highly regulated and subject at all times to the scrutiny of their members, and prospective buyers. For assistance with a property matters, please contact (07) 4771 5664 today!
Debt Recovery in Queensland: Your Options Explained
If you are owed money, understanding your options for debt recovery in Queensland is important. This article outlines the steps and legal avenues available to recover debts. Letter of Demand Before initiating any legal proceedings, we can assist you with drafting a letter of demand. This formal communication requests the repayment of a debt, or the fulfillment of an obligation specified in an agreement. A letter of demand is typically the final step before initiating legal action and should be taken seriously. Where to Start Legal Proceedings The appropriate venue for a debt recovery action depends on the amount of the debt: Up to $25,000: Queensland Civil and Administrative Tribunal (QCAT) $1 to $150,000: Magistrates Court $150,000 to $750,000: District Court Over $750,000: Supreme Court QCAT QCAT handles debt disputes involving individuals, businesses, or companies for amounts up to $25,000. These debts may include outstanding invoices, overdue rent, or unpaid loans. To begin a QCAT application, the creditor completes an application form and submits it to the tribunal. The debtor is then formally notified of the claim via personal service and given 28 days to either settle the debt or contest the claim. We can assist you in preparing your QCAT application. QCAT processes minor debt disputes in two scenarios: Claims under $1,500 proceed directly to a hearing without mediation; or Claims over $1,500 undergo mediation first, and if unresolved, are scheduled for a hearing. We can also assist with the enforcement of QCAT orders or provide advice on navigating the QCAT application process. Court Proceedings To initiate court proceedings, the creditor submits a claim and a statement of claim to the Magistrates Court, District Court, or Supreme Court, depending on the debt amount. These documents must be personally served upon the debtor. The debtor will then either take no action, pay the debt, or contest the claim by filing a defence. If the debtor takes no action, the creditor can apply for default judgment 28 days after serving the debtor. Once the court issues a judgment, the creditor will either receive payment or can begin the enforcement process. If the claim is defended, the matter will likely be referred for mediation or alternative dispute resolution before any hearing or trial. Once a judgement is ordered it can significantly impact a debtor's credit rating for up to six years and enforcement proceedings may involve measures such as seizing assets (vehicles or homes) or garnishing funds from bank accounts or wages. For individual debtors, there is the possibility of pursuing a Bankruptcy Order (Sequestration Order). For company debtors, initiating the process of winding up the company may be an option if they are unable to repay the debt within a specified timeframe. There is a six-year limitation period from the time the debt was incurred to initiate any debt recovery action. For assistance with debt recovery matters, please contact our dispute resolution team today.
What Is An Independent Children's Lawyer & Do The Amendments To The Family Law Act 1975 Affect Them?
What is an independent children’s lawyer? An Independent Children’s Lawyer (an “ICL” for short) is a lawyer appointed by the Court pursuant to section 68L of the Family Law Act 1975 to represent a child’s best interests and makes submissions to the Court regarding the best interests of the child. An ICL can be appointed in parenting proceedings where one or more of the following circumstances exist:- There are allegations of abuse or neglect of a child; There is a high level of conflict and dispute between the parents; There are allegations made as to the views of a child, and the child is of a mature age to express their views; There are allegations of family violence; Serious mental health issues exist in one or both parents or the child; There are difficult and complex issues involved in the matter. The main role of an ICL is to:- Arrange for all necessary evidence to be obtained and put before the Court; Facilitate the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case; Ensure that any views expressed by the child are fully put before the Court; and Act as an honest broker between the child and the parents and facilitate settlement negotiations where appropriate. An ICL is obliged to consider the views of the child, however, ultimately, they are required to provide their own independent view about what arrangements or decision are in the child’s best interests. How does the ICL consider what is in the child’s best interest? The ICL can obtain various information to assist them in considering what is in the best interests of a child. This can include:- Speaking with any counsellor for the child; Examining documents from the child’s school, child welfare authorities or police; Examining medical, psychiatric and psychological records of the parents and the child; and Questioning witnesses (parents and/or experts) at a final hearing. Who bears the cost of an ICL? An ICL is generally funded under a Legal Aid Scheme (either Commonwealth or State). It is not a free service. There are some circumstances where Legal Aid may ask the parties to contribute the costs of an ICL. This is normally in circumstances where a party’s financial position permits them to do so or by Order of the Court. What effect does the Family Law Amendment Act 2023 have in relation to an ICL? The amendments to the Family Law Act 1975 relating to ICLs are as follows:- The ICL is required to meet with the child and provide the child with an opportunity to express views, unless an exception applies (section 68LA(5A) – (5D)); and The removal of the requirement that the appointment of an ICL in Hague Convention Cases can only be made in “exceptional circumstances) (repeal of section 68L(3) and addition to 68L(1)); The removal of the higher threshold requirement in the Family Law Act 1975 which provides the Family Law (Child Abduction Convention) Regulations 1986 must not allow an objection by a child to return under the Hague Convention to be taken into account unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes (repeal of section 111B(1B)). Duties of an ICL The amendment to section 68LA of the Family Law Act 1975 provides that the ICL has a duty to meet with the child and provide the child with an opportunity to express a view (section 68LA(5A)), unless an exception applies (section 68LA(5B)), however, an ICL cannot require the child to express their view in relation to any matter (section 60CE). Regarding the duty to meet with the child, the legislation specifically provides that an ICL has discretion as to when, how often and how meetings with the child will take place and when, how often and how the child is provided with an opportunity to express their view (section 68LA(5AA)). Section 68LA(5B) of the Family Law Act 1975 provides that the ICL is not required to meet with the child if:- The child is under the age of 5; or The child does not want to meet with the ICL, or express their views; or There are exceptional circumstances that justify not performing that duty (ie performing the duty would expose the child to a risk of physical or psychological harm that cannot be safely managed or have a significant adverse effect on the wellbeing of the child – section 68LA(5C)). If the ICL does not meet with the child due to any of the exceptions provided in section 68LA(5B), prior to the Court making final orders, the Court must determine whether it is satisfied that exceptional circumstances exist that justify the ICL not meeting with the child. If the Court determines that exceptional circumstances did not exist to justify the ICL not meeting with the child, the Court must make an order requiring the ICL to meet with the child or provide the child with an opportunity to express their views (section 58LA(5D)). Expansion of use of ICLs in Hague Convention Cases The Hague Convention of the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country. It also deals with issues of international child access (when a parent lives in a different country to the home country of their child). The Convention is a multilateral treaty in force between Australian and 90 other Countries. The repeal of section 68L(3) of the Family Law Act 1975 removes the requirement that an appointment of an ICL in Hague Convention proceedings can only be made in “exceptional circumstances”. Section 68L(1) of the Family Law Act 1975 has been amended to provide that the section 68L (court’s consideration of appointing an ICL) applies to proceedings where a child’s best interest are paramount or a relevant consideration and further specifies that it also applies to Hague Convention proceedings. This means that an ICL in Hague Convention proceedings will now be appointed by the Court under the same circumstances as other parenting matters. Need advice? Our Family Law Team can provide you with comprehensive and specific advice about parenting matters. Contact our Family Law Department, if you would like to arrange an initial consultation.
Amendments To The Family Law Act 1975
There were a number of amendments made to the Family Law Act 1975 which came into effect on 6 May 2024. For parenting, two major areas of change relate to parental responsibility and time. What has changed for parental responsibility? The amendments have removed Section 61DA, which provided that there was a presumption of equal shared parental responsibility for major long-term issues, with the exception of the presumption not applying if there was family violence. Where the presumption applied, parents were required to come to joint decisions about major long-term issues for their child/ren under Section 65DAC (which has also been removed). Section 61C remains, which provides that, subject to a Court Order saying otherwise, each parent has parental responsibility for their child/ren. The section has been amended to remove reference to the previous section 61DA. Section 61D has been amended to include sub-paragraph (3), which provides that the Court can make an Order to allocate parental responsibility for major long-term issues as joint or sole decision-making. There has been an inclusion of Section 61DAA, which provides that if there is an Order for joint decision-making on major long-term issues, the parents are required to:- Consult with each other about decisions to be made; and Make a genuine effort to come to a joint decision. In the absence of an Order dealing with parental responsibility for major long-term issues, then the new section 61CA applies, which provides that where it is safe to do so, parents are encouraged to:- Consult with each other about major long-term issues; and In consulting with each other, have regard to the best interests of their child/ren as the paramount consideration. The take away from the amendments is that, where safe to do so, there is still an obligation on parents to consult with each other about major long-term issues for their child/ren and make decisions in the best interests of their child/ren. For decisions that are not major long-term issues, Section 61DAB has been added, which provides that there is no need for parents to consult with each other about matters that are not major long-term issues. What do the changes mean for current Orders which provide for equal shared parental responsibility? The amendments do not affect current Orders which provide that parents have equal shared responsibility for major long-term issues, meaning that parents subject to such an Order are still required to make joint decisions about major long-term issues. What about time arrangements? Section 65DAA has been removed, which provided that where there was equal shared parental responsibility for major long-term issues, the Court was required to first consider an equal time care arrangement and whether it was in the best interests of the child/ren and reasonably practicable; if not in the child/ren’s best interests or reasonably practicable, the Court was required to consider “significant and substantial” care arrangements. There has not been any inclusion of a specific section to replace the previous section 65DAA or set out a framework for consideration of care arrangements in terms of time. The effect is that the Court will be required to consider each case based on the facts and apply the “best interests” principles to determine what care arrangements to order. Section 60CC continues to detail consideration for what is in the best interests of children. This section has been amended so that the list of considerations has been condensed into a shorter list. These considerations are:- Promotion of safety for the child/ren and each person who has care of the child/ren; Views expressed by the child/ren; Developmental, psychological, emotional and cultural needs of the child/ren; Capacity of carers to provide for the needs of the child/ren; Benefit of the child/ren having a relationship with the child/ren’s parents and other persons significant to the child/ren; Any other relevant matter; The child/ren’s right to enjoy their Aboriginal or Torres Strait Islander culture. What do the changes mean for current Orders which provide for equal time arrangements? The amendments do not affect current Orders and the time arrangements pursuant to those Orders, meaning that time arrangements for child/ren are to continue in accordance with current Orders. Can Orders be changed? There has been inclusion of Section 65DAAA, which provides that where there are current Orders, a Court cannot look to make new Orders unless there has been a “significant change in circumstance” and it is in the best interests of the child/ren that the Court considers making new Orders. The inclusion of Section 65DAAA is to essentially include in the legislation the law that already applied under the decision of Rice & Asplund. Need advice? Our Family Law Team can provide you with comprehensive and specific advice about parenting matters. Contact our Family Law Department, if you would like to arrange an initial consultation.
When can a Court make a Domestic Violence Order?
Case study – ZTP v BBY [2023] QDC 59 The purpose of our Domestic Violence legislation is to ensure that people who fear or experience domestic violence are protected and kept safe.[1] The Domestic and Family Violence Protection Act (DVFPA) achieves this goal by providing a victim of domestic violence with a Domestic Violence Order (DVO) provided by the Court. A DVO is a Court order that is generally made by a Magistrate, designed to protect the aggrieved, their children, or others who are named on the order. The making of a DVO is not a criminal offence, nor is it a criminal proceeding. Contravening or breaching a DVO made by the Court is a criminal offence and carries a maximum penalty of 120 penalty units or three (3) years imprisonment. However, the penalties are more severe if you have a prior conviction for a DV offence within the last five (5) years. For the Court to make a protection order, it must be satisfied that: A relevant relationship exists between the parties and; In the context of that relationship, domestic violence has occurred and; That it is necessary and desirable in all the circumstances for the Court to make an order. It is important to note that the Legislation provides a broad definition of what domestic violence is. Section 8 of the DVFPA defines domestic violence to include[2]: Behaviour, or a pattern of behaviour, by a person towards another person in a relevant relationship that is: (a) is physically or sexually abusive; or (b) is emotionally or psychologically abusive; or (c) is economically abusive; or (d) is threatening; or (e) is coercive; or (f) in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else. (2) Behaviour, or a pattern of behaviour, mentioned in subsection (1) — (a) may occur over a period of time; and (b) may be more than 1 act, or a series of acts, that when considered cumulatively is abusive, threatening, coercive or causes fear in a way mentioned in that subsection; and (c) is to be considered in the context of the relationship between the first person and the second person as a whole. (3) Without limiting subsection (1) or (2) , domestic violence includes the following behaviour— (a) causing personal injury to a person or threatening to do so; (b) coercing a person to engage in sexual activity or attempting to do so; (c) damaging a person’s property or threatening to do so; (d) depriving a person of the person’s liberty or threatening to do so; (e) threatening a person with the death or injury of the person, a child of the person, or someone else; (f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed; (g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person; (h) unauthorised surveillance of a person; (i) unlawfully stalking, intimidating, harassing or abusing a person. Can the Court refuse to make a protection order despite there being evidence of domestic violence? The short answer is yes. For a Court to make a protection order, it must satisfy the three elements we discussed above. It is not merely enough to show that a relevant relationship exists and that an act of domestic violence has occurred; the Court must be satisfied that it is necessary and desirable in all the circumstances. A recent decision from the District Court of Queensland highlighted that even though domestic violence occurred, it was not necessary or desirable in all the circumstances to make a final order. The decision of ZTP v BBY [2023] QDC 59 is significant because, on an appeal to the District Court, the Judge found that the Magistrate did not take into account the elements of necessity and desirability, and, as such, found that the order should not be made. Facts of case On July 26, 2022, the Magistrate made an order for a final protection order in the Holland Park Magistrates Court. The order was for two years against the appellant (ZTP) naming his de facto partner (MNP) as the aggrieved. There were no children in the relationship, and the relationship between ZTP and MNP was ongoing for six (6) years. This was an application brought on by the Queensland Police Service on behalf of the aggrieved MNP. The Police made the application after investigating a complaint brought about by the couple’s neighbour. A temporary protection order was made, and this order turned into a final order following a hearing in the Holland Park Magistrates Court. The aggrieved MNP did not support the police application, nor did she support the making of a temporary protection order. The police continued to run the application on behalf of the aggrieved. Which is a common protocol for Queensland Police now. At the hearing, it was not disputed that the parties were in a relevant relationship; likewise, it was open on the evidence for the Magistrate to come to the view that the applicant, ZTP committed an act of domestic violence on November 2021. The primary issue was that the Magistrate had fallen into error in finding that it was necessary and desirable in all the circumstances that an order be made. “Necessary and Desirable” Section 37 of the Domestic and Family Violence Protection Act sets out when a Court can make a protection order. The third and final element in focus that section 37 talks about is: Section 37 (1) (c) the protection order is necessary or desirable to protect the aggrieved from domestic violence. (2) In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence— (a) the court must consider— (i) the principles mentioned in section 4 ; and (ii) if an intervention order has previously been made against the respondent and the respondent has failed to comply with the order—the respondent’s failure to comply with the order; and (iii) the respondent’s criminal history and domestic violence history filed in or given to the court under section 36A ; and (b) if an intervention order has previously been made against the respondent and the respondent has complied with the order—the court may consider the respondent’s compliance with the order. For a Court to properly determine whether it is necessary or desirable to make a final order, it must assess the risk of future domestic violence between the parties, in the absence of an order. His Honour Judge Muir DCJ, in ZTP v BBY observed observations of His Honour Judge Morzone KC in the case of MDE v MLG [2015] as to how future risk is assessed. At paragraph 20 of the decision, His Honour noted: First, the court must assess the risk of future domestic violence between the parties in the absence of any order. This means there must be a factual finding or inference drawn about the nature of and prospect that domestic violence may occur in the future. This will depend on the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, psychological counselling, compliance with any voluntary temporary orders, and changes of circumstances. Unlike its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation about the prospect of domestic violence. Second, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order. Relevant considerations may include the evidence for the party’s future, personal and familial relationships, their places of residence and work, the size of the community in which they reside, and the opportunities for direct and indirect contact and future communication, for example, in relation to children. Third, the court must then consider when imposing a protection order it is necessary or desirable to protect the aggrieved from domestic violence.[3] Decision The original decision by the Magistrate to impose a two year domestic violence order was made on the basis of accepting the evidence at trial. The Magistrate acknowledged that there had been domestic violence that had occurred. However, the Magistrate did not provide a detailed reason as to why the making of an order would be necessary and desirable. The appeals Judge acknowledged that in the incident on November 10, 2021, the Respondent had committed an act of domestic violence in that he caused emotional and psychological abuse to the aggrieved. However, His Honour did not believe that the Magistrate had properly articulated her reasons with regard to the evidence at trial. His Honour’s observations at paragraphs [48]-[49] identified what the Court must consider in imposing a protection order. “[48] The critical question in this appeal is whether the order is necessary or desirable. [49] The focus on this element, namely whether the protection order is necessary or desirable to protect MNP from domestic violence, requires me to consider the paramount need for the protection of MNP. The discretion is a wide one and it follows from a plain reading of this section that the court must assess the risk of future domestic violence between the parties in the absence of any order” In determining that the making of an order was not necessary or desirable, His Honour had regard to the following (para 52 to 56):- Having considered all of the evidence I am not satisfied that a protection order is necessary or desirable to protect MNP from acts of domestic violence being perpetuated by the appellant for a number of reasons. [53]Firstly, MNP’s evidence, which I accept, is that she is not in fear of the appellant and that she does not consider a protection order. Having considered all of the evidence, I am not satisfied that a protection order is necessary or desirable to protect MNP from acts of domestic violence being perpetuated by the appellant for a number of reasons necessary or desirable to protect her. [54]Secondly, whilst there has been a past act of domestic violence – this occurred some 15 months ago, and it was a relatively isolated incident that did not involve physical violence against MNP and the emotional and psychological abuse must be seen in the context of their relationship at that time – one of six (6) years standing and one where they both clearly verbalised loudly their differences. [55]Thirdly, there is evidence of genuine and immediate remorse and insight shown by the appellant into his conduct, reflected by the fact that he has taken immediate steps towards rehabilitation by engaging in counselling sessions with a psychologist to improve his communication with MNP, a person he remains in a relationship with. I am also satisfied that the appellant has found better ways to deal with the disorder with his jaw, which seemed to be at the root of a number of the arguments between MNP and him. [56] Fourthly, the uncontested evidence is that even though the parties continue to co-habitat, there have been no incidents at the house since November 10, 2021. The appeal Judge made the following orders:- The appeal be allowed The final protection order made on 26 July7 2022 is set aside The temporary protection order made on 17 Nov 2022 is set aside. The original application for a police protection order dated 10 November 2021 and filed in the Holland Park Magistrates Court in November 2021 is dismissed. How can we assist you? This decision provides great insight into what a Court must consider before making a final domestic violence protection order. Just because an application for a domestic violence order has been made, the final decision will need insight into more than one specific area. The need to closely scrutinise Police and private applications for domestic violence orders is incredibly important. If you have been charged with a domestic violence offence, or if you are approached by the Police for an application for a domestic violence order; it is crucial that you obtain independent legal advice before proceeding any further. Our Criminal Law team practice extensively in Domestic and Family Violence Law and can assist you in obtaining a Domestic Violence Order, responding to an application for a Domestic Violence Order or Police Protection Notice, and representing you in relation to any criminal offence that may be DV related. If you are experiencing domestic violence, being subject to coercive control, or have been accused of coercive and controlling behaviour, you can contact Connolly Suthers Lawyers to assist you. If you need any further information or assistance, please contact: DVCONNECT MENSLINE - 1800 600 636 DV CONNECT WOMENSLINE - 1800 811 811 Lifeline- 131 11 14 [1] Section 4, Domestic and Family Violence Protection Act 2012 – Principles for administering Act [2] Ibid, section 8 [3] ZTP v BBY [2023] QDC 59
Law update: Coercive Control Amendments
In 2022 we spoke about the intention of the Queensland Government to introduce a raft of new changes to domestic violence laws in Queensland. On 11 October 2022, the proposed laws were introduced into parliament, and on 6 March 2024, the Queensland Parliament passed these new laws. In this series, we will highlight some of the most significant changes to the laws in Queensland. The Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023 was enacted by the Government 6 March 2024. The significance of these amendments was to tackle the serious ongoing rise of domestic violence offences and focusing specifically on coercive control. These legislative changes began with the Government passing the Domestic and Family Violence Protection Act (Combating Coercive Control) and other Legislation Amendment Bill. This legislation laid the foundation for what coercive control really is, and more importantly, it set up the basis for a stand alone criminal charge for coercive control. The legislative changes came about after recommendations by the Queensland Women’s Safety and Justice Taskforce. These new laws were driven by the tragic deaths of Hannah Clark and her children and have been referred to as ‘Hannah’s Law’. These laws have been passed by Parliament, and assent has been provided, however, a date has to be fixed when these laws come into play. What these new laws mean? The effect of these amendments is broad in nature, and largely affects a number of pieces of legislation including:- The Bail Act 1980 The Criminal Code The Domestic and Family Violence Protection Act 2012 The Domestic and Family Violence Protection Regulations 2023 The Evidence Act 1977 The Evidence Regulation 2017 The Justices Act 1866 The Penalties and Sentences Act 1992 The Youth Justice Act 1992 The Recording of evidence regulations 2018 These changes are to have an immediate and significant impact within Queensland. The most significant of these changes is the creation of a standalone criminal offence of Coercive Control. Queensland is only the second state in Australia that has legislated this offence, following New South Wales. Coercive Control – New Criminal Offence Coercive Control is a form of domestic violence that involves a repeated pattern of behaviour, that, over time, has the cumulative effect of denying a person their personal autonomy and independence. It is a form of behaviour that seeks to create an environment where the victim is in constant fear, isolation, intimidation, and humiliation. Section 334A defines this behaviour broadly, and the legislative definition is prescribed in the offence under Section 334C of the Criminal Code. It is relevant to note that the new amendments cross-reference the definitions of domestic violence from the Domestic and Family Violence Protection Act, namely under Section 334B of the Criminal Code. Section 334C of the Criminal Code provides that a person who is an adult commits an offence (a coercive control offence) if:- The person is in a domestic relationship with another person and; The person engages in a course of conduct against the other person that consists of domestic violence occurring on more than one (1) occasion and; The person intends the course of conduct to coerce or control the other person and; The course of conduct would, in all the circumstances be reasonably likely to causer the other person harm What must be proven? For the Prosecution to prove that a person has committed this offence they must prove beyond reasonable doubt that:- That the defendant and complainant are in a domestic relationship That in the context of that relationship, the defendant engaged in a course of conduct against the complainant that was domestic violence Conduct that is domestic violence is defined under section 344B of the Criminal Code That the defendant intended the course of conduct to control or coerce the complainant. That the course of conduct by the defendant would be reasonably likely to cause the complainant harm. Reasonably likely in all the circumstances is the test. An offence under this section is a crime, and the maximum penalty for this offence is 14 years imprisonment. The prosecution does not have to prove that the person intended each act of domestic violence that would constitute coercive control. The prosecution does not have to prove the particulars of any act of domestic violence, and a jury does not have to be satisfied with the particulars of any specific act of domestic violence. Defences available If you are charged with an offence of coercive control, it is a defence for a person to prove that the course of conduct was reasonable in the context of the relationship between the person and the complainant as a whole. This means that there is an obligation on the defendant to prove that the conduct was reasonable in the context of the relationship. The defendant will bear the onus of proof to show to the Court or a Jury that the behaviour was reasonable. It is not a defence if the person believed that any single act of domestic violence that formed part of the course of conduct for coercive control, when considered in isolation, was reasonable in the context of the relationship as a whole. Effectively what this section is saying is that whether or not the defendant intended or believed that the behaviour was in isolation, coercive or not, is immaterial and not a defence to the offence. Restraining Orders Section 334E of the Criminal Code now allows a Court to consider making a restraining order. The order is separate from a Domestic Violence Protection Order (DVO), and the distinguishing feature is that while a DVO can only be made in circumstances where a relevant relationship exists, a restraining order is a separate order made by a court preventing a person from acting in a certain way towards another person. The new provision under Section 334E allows a Court to make a restraining order, regardless of whether a person is found guilty or not guilty, or whether the persecution of the matter ends in another way (such as a summary dismissal or withdrawal of the charge). The Magistrate or Judge may consider whether or not to make a restraining order. This effectively means that it is the discretion of the Court as to whether or not a restraining order should be made. The application for an order can be made by either the Crown (Prosecution), an interested party, or the Judge and Magistrates own initiative. The Court would take into account any relevant evidence in the hearing and would otherwise consider whether or not it is desirable that they make the order. If the Court makes a restraining order, it is important to note the following:- The application for a restraining order is not a criminal proceeding, it is a civil proceeding. If the restraining order is made it takes effect on the day the order is made, until a specified date. If a date is not specified, the order is deemed to operate for 5 years after the day the order is made. The order continues in force for 5 years, it can operate for less than 5 years only if the Court is satisfied of the safety of the person is not compromised The restraining order can be revoked at any time. While it is not a criminal offence for a restraining order to be made against a person, it is important to note that contravening or breaching the order is a criminal offence. The maximum penalty for knowingly contravening a restraining order is 120 penalty units or 3 years imprisonment. If you have been convicted of a domestic violence offence within 5 years, then you can be liable for a fine of 240 penalty units or imprisonment for 5 years. How can we help you? Domestic Violence offences have significant consequences for individuals. What is important to be aware of is not just the simple penalty for these offences but also the secondary effects a conviction for these types of offences can include. For example, offences of this nature can have a bearing on whether or not a blue card holder will have to face show cause proceedings or if a revocation of a blue card can be made by the department. If you are a professional who requires membership in a governing body, such as the Australian Health Practitioner Regulation Authority, you may have an obligation to report being charged with or convicted of an offence under these proceedings. It is incredibly important to obtain legal advice if you are charged with any domestic violence offence, or if you are approached by the Police for an application for a domestic violence order. If you are experiencing domestic violence, being subject to coercive control, or have been accused of coercive and controlling behaviour, you can contact Connolly Suthers Lawyers to assist you. Our Criminal Law team practice extensively in Domestic and Family Violence Law and can assist you in obtaining a Domestic Violence Order, responding to an application for a Domestic Violence Order or Police Protection Notice, and representing you in relation to any criminal offence that may be DV related. If you need any further information or assistance, please contact: DVCONNECT MENSLINE - 1800 600 636 DV CONNECT WOMENSLINE - 1800 811 811 Lifeline- 131 11 14
The Power of an Attorney to Renew a BDBN
The recent decision of Justice Applegarth (Queensland Supreme Court) in Re Rentis Pty Ltd [2023] QSC 252 examines an attorney’s powers to make a binding death benefit nomination (BDBN) for an incapacitated member of an SMSF. Justice Applegarth said that “renewing” a BDBN extended to nominating different beneficiaries where the original beneficiary of the BDBN had died. In Rentis:- Robert was a member of an SMSF. He lost capacity in December 2020; Robert had appointed his wife and brother Peter as attorneys under an EPA (which gave Peter an express power to ‘renew’ a BDBN). Prior to losing capacity, Robert made a BDBN directing the trustee to pay his death benefits as follows: 50% to his wife; and 25% to each of his children. Robert’s wife died in February 2021. Robert’s brother Peter remained as the sole attorney under the EPA. Peter, in his capacity as attorney for Robert, made a BDBN directing the trustee to pay Robert’s death benefits as follows: 25% to each of his children; and 50% to Robert’s estate. The EPA provided, “I authorise my attorney/s to ‘renew’ any binding death benefit nomination made by me for any superannuation benefits or entitlement.” Justice Applegarth considered the meaning of the term ‘renew’ and whether it should be construed narrowly or given a purposive interpretation. It was contended that the term ‘renew’ would only permit an attorney to make another BDBN that repeats the terms of the previous BDBN made by the principal. Justice Applegarth did not favour this narrow interpretation and said, “A narrow construction would produce capricious, unreasonable, and certainly inconvenient results for a principal who became incapacitated and whose circumstances had changed or where other circumstances had changed. One would think that it is precisely the existence of changed circumstances that gave rise to the authority given to the attorney to renew any binding death benefit in the sense of making a fresh BDBN, that is, to make a new BDBN to address those circumstances or to renew the BDBN.” He held that the term ‘renew’ did allow the attorney to make a BDBN that differed from the earlier BDBN made by the member. Rentis provides useful guidance on how courts may determine the meaning of the power to ‘renew a BDBN’ if these words appear in an EPA. Of course, if the EPA spelt it out clearly to say different beneficiaries could be nominated, proceedings may have been avoided. With dementia cases on the rise, the terms of EPAs, BDBNs, Reversionary Pensions, SMSF Trust Deeds and Wills should be regularly reviewed holistically (and not in isolation) so that court proceedings can be avoided. If you would like assistance with any of the above information, please contact our Wills and Estates team via (07) 4771 4665.
Domestic Violence and Property Settlements
If my relationship involved serious domestic violence, would this affect the outcome of a property settlement? Domestic violence in a relationship might affect the outcome of a property settlement if there is evidence of serious violent conduct, which has made it significantly more difficult for the victim party to contribute properly to the relationship. A property division is based largely on the contributions. This includes those made by the parties initially, during the relationship, and sometimes even post-separation, as well as the factors that affect each party’s future. The case of Kennon v Kennon established the principle which has to be met in order to vary a property settlement on the basis of serious domestic violence. This case involved a property settlement whereby domestic violence was present in the relationship. The court considered in this case whether the domestic violence had an impact on the victim’s ability to make contributions during the relationship and whether this could influence the outcome of the property settlement. The case predominantly focused on the contributions set out in section 79 of the Family Law Act 1975, specifically 79(4)(c) – (the welfare of the family and homemaker contributions) and also considered section 75 – (the future factors). Three elements were established to satisfy whether the presence of domestic violence could change the outcome of a property settlement: Violent conduct must be established; The violence must have a discernible impact on the victim; and The victim’s contributions to the relationship must be made significantly more ‘arduous’ as a result of the violent conduct This is reflected in the case when the court said: “Our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79.” Their honours also commented that these principles should only encompass “exceptional cases.” What you need to remember: The outcome in Kennon isn’t always going to be reflected in every property case involving domestic violence. It is a high threshold to prove and there have been multiple cases in which the court was not satisfied that the domestic violence actually affected the victim party’s ability to contribute to the relationship or family. If you wish to obtain legal advice about your property matter, please do not hesitate to contact the Family Law team at Connolly Suthers Lawyers by phoning (07) 4771 5664 or submitting an online enquiry on the Family Law page.
Injured QLD Nurse - Awarded $1.6M in Damages
A Queensland Nurse badly injured during a patient restraint gone wrong has been awarded $1.6M in Damages for Robina Hospital’s failure to provide adequate Hospital Security. Justice Ryan of the Supreme Court of Brisbane handed down their Decision on 23 June 2023 in the matter of Trinet Ruth Wilson v Gold Coast Hospital and Health Service [2023] QSC 135 finding Gold Coast Hospital and Health Service liable to pay $1,634,418.55 to a Registered Nurse badly injured during a shift on 12 March 2016 at the Robina Hospital. Key points from Justice Ryan in reaching their Decision, as follows:- Wilson was a Registered Nurse aged 39 at the time of her injury [1, 12]. She was involved in the restraint of a patient with dementia, who had been difficult, disruptive, acting out physically and refusing medication [1]. Security Guards were called to assist in administering the patient’s anti-psychotic medication [42]. Two Security Guards (instead of three) arrived to assist with restraining the patient [45]. The Security Guards marched/dragged the patient back to her room. She was elevated and resisting [46]. The Security Guards restrained one arm each. The patient’s legs were flying, kicking and thrashing about [47]. Nurse Wilson was over the base of the patient’s bed, placed her hands around the patient’s ankles, pushed them to keep them straight so that she would not move while another Nurse injected her thigh [48]. After the injection was given, Nurse Wilson made sure her colleague administering the injection was out of the way, Nurse Wilson and the Security Guards all let go at the same time. As Nurse Wilson let go of the patient’s legs “both feet, like, nearly connect with my face and I’ve managed to, like, come from this position and I arched back really quick and I felt her feet. And then I noticed she had thrown like, her arm movement, like she was throwing something, so I’ve twisted – so I’ve gone and then twisted… I felt uncomfortable. I was uncomfortable. There was discomfort” [50]. To her credit, Wilson attempted to return to work the day after the incident, as it was a Sunday and penalty rates applied. She commenced her shift at 8:00 am, made it through the “safety scrum”, made it to the second or third medication rounds, and then, as she went to unlock a drawer with a key at head height, she became stuck in position. Her evidence at Trial was “it happened again”; “out of nowhere”. She returned to the Nurse’s station to sit down. She could not recall whether she completed the remainder of that shift. Wilson called in sick Monday and had a further three (3) days scheduled off before returning to work the Friday with a lighter patient load. She persevered through a couple of shifts but found she was continuing to experience spasms, whether she stood or sat still. Squatting down at the Nurse’s station eased her pain. She again attempted to work the following Sunday (Easter Sunday). She experienced another spasm when picking up a folder from a desk. She lay in an empty Hospital bed. Some months passed and Wilson attempted to work again in July 2016, within her suitable duties program (being short shifts, three (3) times a week). Wilson did not perform any tasks on those shifts other than making patients cups of tea and continued to suffer spasms. The state of the Ward at the time of the incident On 12 March 2016, Wilson was rostered to work from 1:00 pm to 9:30 pm at the Robina Hospital’s Specialised Medical Unit (SMU), a 24-bed medical ward with a “mixed bag” of patients. The SMU was a busy ward, requiring heavy work. Most of the patients in the SMU were over 65/70 years of age, which included those transferred from nursing homes with medical problems. Often, those patients suffered from dementia or delirium. During the pre-start or “safety scrum” of Nurses at the beginning of the shift, Wilson was told that the patient who later injured her had “a couple of Code Blacks previously and had been quite aggressive to other nurses”. The patient had previously grabbed her at-home care Nurse by the throat and kicked and scratched her. The staff skill mix for the shift on 12 March 2016 was, in the evidence of Wilson, “really bad” and included two new Graduate Nurses (in their second month), a pregnant Enrolled Nurse, a Clinical Nurse and one other Registered Nurse. Wilson was not allocated to the patient who later caused her injuries. A new graduate Nurse was assigned to the patient, who became overwhelmed. There were also three (3) to four (4) other patients who also suffered dementia in the Ward and had been wandering “non-stop” throughout the Ward. The patient who later caused Wilson’s injury had been being difficult, and disruptive, attempting to break into other patients’ rooms, acting out physically and refusing medication. Security Guards were called to assist in administering the patient’s anti-psychotic medication. In making a Judgment as to the factual findings of the workplace incident, Justice Ryan declared: [283] I find that in 2016, the patient mix on the SMU included an increasing proportion of older patients with “behaviours” as a consequence of their dementia or other cognitive vulnerabilities, which manifested in confusion, disruption, wandering, verbal abuse, physical aggression and assault. [284] I find that the staff on the SMU were not trained to deal with those patients, as the defendant acknowledged in the 2016 OVRAT, beyond being told to prioritise their own safety via the “ICE” approach – isolate, contain and evacuate. [289] I find that “M” (the patient) did not settle upon the arrival of the two security officers on the ward. They had to drag her or march her back to her room. She was not subdued by their mere presence as she demonstrated by her resistance in the face of it; her conduct whilst on the bed; and the urgency around the need to administer medication to her so that she might calm down. [294] I find (indeed, the parties essentially agreed) that the plaintiff did not receive training in how to (safely or at all) restrain a patient – either from the point of view of her participating in restraint or being able to evaluate whether a restraint executed by security officers (or other relevant trained staff) was being safely executed. Nor was the plaintiff instructed not to participate in the restraint of a patient, but to leave that to security officers (other than, obviously in circumstances in which the plaintiff was entitled to defend herself). Justice Ryan found that the patient “M” who injured Wilson posed a foreseeable risk of injury to Wilson generally and in the course of being restrained. Gold Coast Hospital and Health Service tried to argue the risk posed by this patient to Wilson was insignificant. Justice Ryan found the risk was not insignificant. Justice Ryan found Robina Hospital negligent on the following grounds:- The Defendant was negligent in failing to instruct Nurse Wilson not to be involved in the physical restraint of a patient [5]; and Additionally, …the Defendant was negligent because of the failure of two security officers who attended the ward to call for a third to take part in the restraint, rather than the plaintiff. Had the security officers called for a third to take part in the restraint, then, for the same reasons as above, Nurse Wilson would not have been injured. The injuries and impact on employment The Plaintiff underwent significant treatment, including:- Treatment by Dr Cleaver (Spinal Orthopedic Surgeon); Cortisone injections (which gave her about nine (9) days of relief); Physiotherapy; Hydrotherapy; Sacroiliac belt; Pilates; Acupuncture; Yoga; TENS machine; Hot and cold gel packs; Treatment with a Pain Clinic; Right-sided sacroiliac joint fusion (which she funded herself). Following fusion surgery, Wilson (after a five (5) day hospital stay and an inability to weight bear for a few weeks) was free of spasms and pain for three (3) to four (4) weeks before sadly experiencing “out of nowhere” that the dragging sensation in her groin had returned, followed by spasm. “Things were back to how they had been”. Wilson describes experiencing deep aching in her right sacroiliac joint, a dragging sensation in her groin, numbness, and spasms occurring five to twenty times per day with those symptoms relieved by crouching, curling and squatting. The pain is mostly in her pelvis and hip. The aching (in the right sacroiliac joint) and dragging sensation (in the groin) are constant. There is also numbness in the joint. The Court found she is now in a worse state than she was in 2016 because she has de-conditioned. Wilson now walks with a limp, has gained thirty kilograms and pain medications make her drowsy. Her mental health has deteriorated. At the time of the Trial, she was receiving a Disability Support Pension and Family Tax Benefit ($750.00 a week). Her rent, per week, was $550.00 a week. Future intentions Wilson’s intention was to work as a Clinical Nurse, in the SMU for as long as possible “til I drop, pretty much”. Pre-existing conditions It was of great debate throughout the Trial as to what impact, if any, Wilson’s earlier fusion surgery prior to the incident in 2015 for correction of a degenerative process had on her current state. It was not contested that Wilson had widespread degenerative pathology in her sacroiliac joint. However, Justice Ryan opined “That did not mean that she inevitably would have become symptomatic (even if she had not been injured at work in March 2016), but I find that there was a degree of probability that her degeneration would progress to the point at which she was symptomatic”. Despite her prior surgery and condition, Damages were assessed as follows: - General Damages - $25,150.00 Past Economic Loss - $473,548.16 with interest of $50,926.00 Past Superannuation Loss - $60,377.39 Future Economic Loss - $800,000.00 Future Superannuation - $95,040.00 Past Expenses - $78,556 Future medicals - $15,000 Future travel expenses - $2,000 Future pharmaceuticals - $12,000 Fox -v- Wood damages - $21,821 In determining Future Economic Loss, the Defendant argued the Nurse only had a further twenty (20) years residual earning capacity due to her pre-existing degenerative condition, and, that this was to be further discounted by 50% for contingencies, including the hypothetical event that the plaintiff in any event would have suffered a similar disabling back condition. Wilson, however, invited that the more usual reduction of 10% for contingencies only be made, and no further discounting was appropriate. Justice Ryan reached the award for Future Economic Loss by “starting at the scenario proposed by the plaintiff but discounting it (by 50%) for contingencies including, but not only, the contingency that she might not work a 40-hour week plus Sunday and weekend shifts from 2019 until she was 67; and the contingency that she might, in the future, suffer from pain symptoms because of pre-existing degeneration and/or the consequences of her prior surgery which might shorten her working life.” The Plaintiff was awarded Damages of $1,634,418.55. The full Judgment from the Queensland Supreme Court can be found here.