July 10

How Binding is Your Binding Death Benefit Nomination

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A recent case considered by the Queensland Supreme Court Williams v Williams & Anor [2023] QSC 90 has highlighted the importance of taking all of the required steps to ensure a binding death benefit nomination is valid and capable of giving a legally binding direction to the trustee of a superannuation fund for the payment of death benefits following the demise of a superannuation fund member.

Binding Death Benefit Nominations, if valid, will ensure that superannuation benefits are paid to a named beneficiary following the death of superannuation fund member.  There are strict requirements for the completion of Binding Death Benefit Nomination forms, and their renewal, including the categories of people who can be nominated.

However, as the case of Williams has reminded us, Binding Death Benefit Nominations must be returned to the superannuation fund in the correct manner if they are to be binding on the fund.  In that case, the superannuation fund member had completed a Binding Death Benefit Nomination for their interest in a self-managed superannuation fund.  They were one of 2 trustees of the fund.  Whilst the member trustee filed the document, they failed to deliver a copy (called service) to their co-trustee.  As a result, the nomination was not legally binding and the benefits were not paid as they intended.

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Posted by Misko Vujnovic, Principal & Notary Public | no comments
July 10

I’VE BEEN TOLD I NEED AN APOSTILLE. WHERE AND HOW DO I GET IT?

If you have an original document issued by an Australian government department (ie, birth certificate, marriage certificate, citizenship certificate), also known as a public document, you can obtain an apostille from the Department of Foreign Affairs and Trade (DFAT). If you have a private document (ie, power of attorney, contract) or a copy of a public document, you must notarise that document before DFAT will issue you with an apostille.

In Australia, only DFAT has the authority to issue an apostille. For more information, also visit

Leave the apostille to us!

Many of our notary public clients will apply to DFAT for an apostille themselves, however, this can be troublesome and time-consuming (especially post-COVID as you can no longer ‘just walk in’ to the DFAT office without an appointment). If you want us to help you apply for an apostille, please advise us at the time of making an appointment to obtain a quote inclusive of the DFAT apostille fee and our service fees. We would be pleased to assist you.

IMPORTANT:
If the intended destination country is NOT a signatory to the Apostille Convention, then your documents sent to that country must be authenticated by DFAT and authenticated by the intended destination country’s foreign representative office in Australia before the documents will be recognised in the intended destination country.

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Posted by Misko Vujnovic, Principal & Notary Public | no comments
May 29

Guardianship and Administration Orders

What is Guardianship and Administration?

Guardianship or someone being appointed as an administrator applies in situations where an individual with a disability has limitations on their ability to make decisions for themselves, whether that be for their personal life, financial affairs, or their housing. They may need someone to make all those decisions, or perhaps just for one area, such as their housing. 

Per s3 of the Guardianship and Administration Act 2019 (Vic), an administrator is someone who cares for the individuals’ financial needs, whereas a guardian can make personal lifestyle decisions as needed. These two kinds of positions enable the appointed guardian or administrator to have legal decision-making power for the affairs of the individual. 

These orders are dependent on capacity – as in, does the person need a guardian or administrator to make decisions for them, or do they have capacity to make those decisions themselves? Generally, there is a presumption that every individual over the age of 18 is autonomous and has the capacity to make decisions for themselves. Capacity is defined as a person’s ability to determine the following:

  • Understand the information before them that is relevant to the decision and the effect of that information;
  • Retain the information to make that decision;
  • Use or consider that information as part of the decision-making process; and 
  • Communicate their decision, views, and needs to another person – can be through speech, gestures or other means. 

Sometimes, individuals cannot make decisions for themselves if they suffer from:

  • A disability that impacts upon their decision-making skills, such as intellectual or developmental disabilities; 
  • An acquired brain injury; 
  • Mental illness; or
  • Other illnesses, such as dementia or Alzheimer’s. 

However, capacity is not a stagnant issue or something that affects a person’s decision to make decisions about all factors of their life. Sometimes, it is dependent on the domain of the decision, such as finances or healthcare, or it can be time-specific, meaning that a person might have more capacity at the start of the day than at night. It can also be decision-specific, meaning that a person may be able to consent to a blood test, but not to significant surgery or operations. 

Sometimes, informal guardians or administrators can be appointed to look after certain needs of the individual, which can be performed by trusted family members or friends. Other times, there is a need for a formal arrangement in place. This can be done by the person formally appointing another as a guardian or administrator, such as through an enduring power of attorney. 

 

Any person who is concerned about an individual’s capacity to make decisions for themselves can make an application to the Guardianship list of VCAT. However, the application must include a report from the individuals’ social worker or doctor that validates their disability and lack of capacity to make certain decisions. VCAT will then hold a hearing to determine whether a guardian or administrator is appropriate and if so, who should be appointed.  

VCAT can appoint a guardian or administrator if there is no enduring power of attorney in place or in circumstances where the enduring power of attorney is deficient or inappropriate. If no suitable person can be determined, or if a family member does not want to take on that responsibility, then VCAT can appoint the Office of the Public Advocate to act as the person’s guardian or administrator.  

What must a Guardian or Administrator do?

A guardian or administrator must act in the person’s best interests, otherwise they will be in breach of their duty to the person. A guardian is also required, where possible, to consult the person whom they have guardianship over, to ensure that their best interests are maintained. This also allows the individual to be heard and be able to make or contribute to the decisions that affect them. 

If you are require assistance to make a VCAT application, or to make guardianship or administrator orders under an enduring power of attorney, it is crucial that you seek legal advice to determine the best course of action for your matter. Please contact us on (03) 9557 2915 or [email protected] for more information. 

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Posted by Evgenia Lega, Trainee Solicitor | no comments
May 29

Family Violence Intervention Orders

What is Family Violence?

Family violence is defined in s5 of the Family Violence Protection Act 2008 (Vic) as being behaviour that is physically, psychologically, emotionally, economically abusive or otherwise threatening, coercive or dominating behaviour that causes a family member to feel fear for their safety or wellbeing, or for another (such as a child). The laws around family violence also protect children who hear, see or are around family violence. 

The definition of family members is designed to cover a wide range of individuals, beyond just blood relations. For example, it includes people who are in an intimate relationship with each other, such as de facto, married, or domestic partners, any relatives by birth, marriage or adopted. It also includes individuals who you treat like a family member, like a guardian, carer or someone who is related to you in the familial structure of your culture. 

What is a Family Violence Intervention Order (FVIO)?

FVIOs are an order by the court to prevent someone from committing family violence (known as the respondent) against one or more protected individuals, who are often referred to as applicant or affected family members (AFMs for short). FVIOs can also have additional orders imposed on the respondent, such as prohibiting them from visiting the AFM’s home, school, or workplace, or prohibiting the respondent to contact the AFM via social media or via telephone or texts. 

FVIOs can be applied for on the court website, or a police officer responding to the incident can make an application. When the application is made, there are no orders imposed on the respondent. But police can also apply for an interim intervention order, which imposes conditions on the respondent until the matter is heard before the magistrate and determined on a final basis. 

What happens if you breach a FVIO?

Breaching FVIOs are extremely serious, as although FVIOs are civil orders, once a breach of a condition has occurred, a criminal offence has occurred. This means that criminal penalties will apply, if a person is found guilty of breaching any condition of the FVIO. 

For the AFM, if they become aware of a breach by the respondent, it is important that they contact police and inform them of the breach. It may be useful to keep details of the breach, and any other incident if the respondent does not stop. 

Depending on the severity of the breach, a respondent may be charged with a criminal penalty such as:

  • Fine;
  • Diversion;
  • Good behaviour bond; 
  • Community Corrective Order (known as CCOs); or
  • Gaol. 

If the breach is minor, police may determine to provide a warning or caution to the respondent. However, it is extremely important to avoid breaching a FVIO to ensure that criminal penalties are not laid against you. 

What if there is a parenting order already in place?

When there are inconsistencies between a parenting order and a FVIO, the decision of the Federal Circuit and Family Court of Australia (FCFCOA) will overrule any intervention order to the extent of the inconsistency. This is because the FCFCOA has Commonwealth jurisdiction, whereas intervention orders are made under state or territory law. 

This means that if there is a requirement for one party, the respondent to the FVIO, to pick up the child (who is an AFM) but the FVIO states that the respondent cannot come within 100m of the AFM or cannot go to the other parent’s property, then the parenting order overrules that condition. However, if the respondent attends the property of the other parent for reasons other than facilitating the pickup arrangement, then they will be in breach of the FVIO. 

However, it is important to seek legal advice, as navigating FVIOs and parenting orders are difficult and there is no one solution that will be applicable or appropriate to every overlapping matter. 

If you have breached an intervention order, or you are being affected by someone who is breaching an intervention order, please contact us on (03) 9557 2915 or [email protected] so that our team can assist you. 

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Posted by Evgenia Lega, Trainee Solicitor | no comments
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