In early April 2018, police executed a search warrant on our client’s residence. At that time, police located a sunglasses case in the wardrobe of our client’s bedroom. Inside the sunglasses case, police located one large clip seal bag containing four smaller clip seal bags. Within each of the smaller clip seal bags police located 5 clip seal bags containing similar amounts of cocaine. In total police located 20 clip seal bags containing 15.379 grams of a white powdery substance. The substance located was subject to drug analysis testing and as a result 6.392 grams of pure cocaine was detected.
Our client was charged with the serious offence of Possessing the dangerous drug, cocaine in excess of 2 grams. Our client was also charged with one count of supplying the dangerous drug cocaine, as well as a number of summary offences.
Upon reviewing the brief of evidence, Samantha O’Connor of our office sent a submission to the DPP to seek that the supply charge be discontinued due to a lack of evidence within the brief to substantiate the charge. The submission to discontinue the supply charge was accepted and the DPP withdrew the charge.
The possession charge was committed to the Brisbane Supreme Court by way of Registry Committal. An indictment was presented before the Brisbane Supreme Court. The Crown alleged that the cocaine was possessed by our client for a commercial purpose. The matter was listed for a contested sentence given that our client instructed that the cocaine was possessed for personal use.
Samantha O’Connor of our office appeared at our client’s sentence before the Brisbane Supreme Court instructing counsel. Our client was required to give evidence at his sentence to allow the factual issue of whether the drugs were possessed for a commercial or personal purpose to be determined by the Supreme Court Justice. Ultimately, the Presiding Justice rejected our client’s evidence and found that the drugs were possessed for a commercial purpose. Our client’s mitigating features such as his limited criminal history, relative youth, steady employment, otherwise good character as evidenced by character references and rehabilitative efforts in the form of clean urine screens were placed before the Presiding Justice. Our client was sentenced to 2 years imprisonment and our client was granted immediate parole. This was an excellent result for our client in all of the circumstances.
If you are interested in our criminal lawyers acting on your behalf, please call Samantha O’Connor on 3009 8452 or Nick Crawford on 3009 8467.
In November of 2018, our client was charged with a string of serious offences including:
• Burglary and commit indictable offence
• Unlawful possession of weapons Category D/H/R weapon
o Smith and Wesson M66 pistol
o Beretta 92fs silver 9mm pistol
• Unlawful possession of weapons Category A, B or M
o 22 Calibre Mossberg 802 with scope rimfire rifle
o Remington 700 233 with scope centre fire rifle
o Mosin Nagant 9130 with bayonet centre fire rifle
o BSA Centre fire rifle
o John Wayne Winchester Centre fire rifle
o Winchester Model AN1873 centre fire rifle
• Unlawful use of motor vehicle
• Possessing dangerous drugs (methamphetamine)
• Authority required to possess explosives
Following a review of the QP9 material, a submission was sent to Brisbane Police Prosecutions given that the evidence for the burglary and weapon offences was merely circumstantial. As a result of the submission sent by our office, Police Prosecutions offered no evidence to the burglary charge and two charges of unlawfully possessing weapons. Following the successful negotiations, our client’s remaining charges were listed for a plea of guilty.
Our client had a lengthy criminal history of 10 pages and had battled with substance abuse throughout his life. A bed in a residential rehabilitation facility was organised for our client to assist him with his rehabilitation in the future.
Samantha O’Connor of our office appeared before the Brisbane Magistrates Court on behalf of our client for the purpose of a sentence for the remaining charges.
Submissions were made on behalf of our client and our client was sentenced to a head sentence of 12 months imprisonment with immediate parole, the 135 days pre-sentence custody our client had spent in custody prior to his sentence was declared as time served under the sentence imposed. Our client was grateful for the excellent result, which allowed him to return to the community to continue with his rehabilitation at a residential rehabilitation facility.
If you are interested in our criminal lawyers acting on your behalf, please call Samantha O’Connor on 3009 8452 or Nick Crawford on 3009 8467.
With the ever changing social dynamics around us, it is becoming more apparent in the average Australian family space that people are contesting Wills.
So what does this mean for you?
As you are aware, people are able to decide who will inherit their estate by writing a Will. Unfortunately, people make decisions in respect to their Will that fail to take into consideration their spouse, de facto partner, child or someone who is dependent on them. Nevertheless, the law provides protection to people who have been left out or receive an unfair or disproportionate provision from a deceased estate.
If this sounds like you, you are able to contest a Will and bring a family provision claim against the deceased’s estate in order to receive an adequate provision from the estate.
To bring a family provision claim, you must be an eligible person e.g spouse, de-facto, child or a dependent of the deceased. A grandchild is not an eligible person unless they were a dependent of the deceased.
You also have only 12 months to make a claim from the date of the deceased person’s death, so it is critical to obtain legal advice as soon as possible.
Contesting a will: what the court considers
Should you be an eligible person, the Court will then consider the following matters;
1. Your relationship with the deceased;
2. Your financial resources and needs together with the financial resources and
needs of other beneficiaries;
3. The size of the estate;
4. Any contributions made by you to the deceased during their lifetime;
5. Any gifts received by you from the deceased during their lifetime;
6. The financial circumstances of your partner (if you have one);
7. Your dependency on the deceased
8. Your age and health;
9. Your character and conduct towards the deceased;
10, Any other matter the Court considers relevant.
If you believe that you are an eligible person and have been left out of a Will or have not received an adequate provision, you may be able to contest the will and obtain more than you think.
Equally, if you are an Executor and you are required to defend a family provision claim, we can assess your claim and provide you with expert advice with an aim to settle your matter swiftly in order to minimise the costs incurred by the estate.
Our team has extensive experience in estate litigation and whether you believe you are eligible to make a claim or require advice in defending an estate, we can assist you.
If such is the case or if you require further information in relation to the above, please contact Ian Agamalis or James Hatzopoulos at Rostron Carlyle Lawyers on (02) 9307 8900 or by email to email@example.com or firstname.lastname@example.org.
On 24 April, 2018, our client—a twenty-seven (27) year old male—was charged with one (1) count of Assault Occasioning Bodily Harm. The maximum penalty for this charge is seven (7) years imprisonment.
In March, 2018, our client was involved in a fight with an acquaintance, both of whom had recently exchanged heated words over text. An associate of our client had been walking her sister to the train station when she heard the two parties arguing behind her. She witnessed the exchange that followed and confirmed that the fight had in fact been consensual.
Our client contested the allegations that the fight was a one-sided attack and instructed Tyronne Thomas to of our office to list for trial. On 4 and 5 February, 2019, Mr Thomas appeared in the Brisbane District Court instructing Josh Fenton of Counsel on behalf of our client.
At the conclusion of the trial, the Jury returned a not guilty verdict and our client was acquitted of the charge. No conviction was recorded, proving a successful trial for both our client and Mr Thomas.
If you are interested in our criminal solicitors acting on your behalf, please call either Tyrone Thomas on 3009 8481/0408 760 860 or Nick Crawford on 3009 8467/0410 413 107.
On 1 May 2019, Tyronne Thomas of our office appeared before the Brisbane Magistrates Court, entering a plea of guilty on behalf of our client, with respect to one charge of Assault Occasioning Bodily Harm (AOBH) with the circumstance of aggravation of ‘in company.’ (more…)
Wills and Estates: An annuity may not be adequate provision for proper maintenance and advancement for a widow
What does it take to make adequate provision for proper maintenance and advancement in a will?
Is it a matter of moral duty or community standards?
The answer to those questions depend upon a range of factors.
In Steinmetz v Shannon  NSWCA 114, the appellant was the second wife of the deceased, who left an estate of approximately $6.8 million. The estate consisted of real estate, a superannuation policy, a real estate business and a liquor outlet business.
By his will, the deceased left the appellant an indexed annuity of $52,000 for the remainder of her lifetime. The remainder of the estate was left to the respondents, who were the independent adult children of the deceased’s first marriage.
The will contained the following provision:
“IT IS MY EXPRESS WISH that my Estate remains a whole for my children and grandchildren. I have drafted my Last Will and Testament in the above manner as I believe that it enables my wife to live comfortably for the rest of her life without having to dispose of the assets that I have worked my whole life for.”
The will was made hurriedly in circumstances where the deceased was about to undergo surgery which he feared he might not survive. Instructions were in fact given to the deceased son in law who was a solicitor.
The trial judge dismissed the appellant’s family provision claim. The widow appealed.
The principal issue on appeal was whether the annuity was adequate provision for the appellant’s proper maintenance and advancement in life.
The members of the Court of Appeal all approached the issues slightly differently, but unanimously held, allowing the appeal:
Adequate provision for a proper annuity is not limited to the provision of financial necessities.
Section 59 of the Succession Act (NSW) is to be applied according to its terms, and not confined by notions of reluctance to interfere with freedom of testation.
Insofar as it is necessary to resort to concepts of “moral duty” or “community standards” as a measure of proper provision, the former is preferable.
To leave a 65 year old widow, who is well capable of managing her own affairs, reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, with one of whom there have been historical tensions, rather than placing her in control of her own resources, is not an appropriate form of provision.
The appellant widow was awarded an amount of $1.75M in lieu of the annuity provided under the will.
In the context of the relationship and marriage, taking into account the sustained and substantial contributions the appellant had made to the welfare of the deceased; the size of the estate; that there was no-one else responsible for the maintenance of the appellant; the appellant’s reasonable wish to relocate; and the absence of competing claims; the annuity provided to the widow under the will was not adequate provision for the proper maintenance and advancement of the appellant.
In relation to the express provision in the terms of the will, Brereton JA said,
“A wish to preserve “the assets that I have worked my whole life for” for the benefit of his children and grandchildren does not reflect a careful balancing of competing claims. The testator allowed this wish to preserve his estate intact to so dominate his decision-making as to fail to have sufficient regard to his obligations to his dutiful wife of 28 years.”
In finding the annuity inadequate, Brereton JA said,
“to leave a 65 year old widow reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, rather than placing her in control of her own resources, is in this day and age not an appropriate form of provision for a widow who is well and truly capable of managing her own affairs and when there have historically been tensions between her and at least the first respondent. However reliable the respondents might be, this form of provision effectively obliges her to have an ongoing relationship with them, and to trust them to perform the obligation, and does not afford her the independence and self-reliance which, according to today’s community standards, a widow should have. It is not only rigid and paternalistic, but demeaning and controlling.”
The decision highlights the broad approach a court will take in such matters. What may at first glance be adequate and proper provision, may on careful analysis of all of the facts, be quite inadequate and altered.
In ideal circumstances, wills should be made after careful consideration of all of the relevant facts, with sound advice and guidance.
It is not uncommon for a party to a marriage or de facto relationship to receive an inheritance either before, during or after their relationship. Put simply, unless the parties entered into a Financial Agreement (made pursuant to the Family Law Act 1975 (Cth)) setting out how any inheritance would be dealt with in the event of separation, then:
• the inheritance is not excluded or otherwise quarantined from the assets and liabilities to be divided between spouses following separation; and
• the amount of the inheritance is not allocated back to the spouse who received it.
How a Court determines a split of assets between spouses?
The following 4-step approach is applied by the Court:
1. Ascertain the current assets, superannuation, liabilities and financial resources of the parties
2. Assess the contributions (financial, non-financial, homemaking and parenting) of the parties at the commencement of, during and after their relationship
3. Assess the future needs of the parties (for example, who might have the care of infant children, any difference in the parties’ income earning capacities, the age and state of health of the parties)
4. Consider whether the proposed orders are just and equitable in all of the circumstances
What impact does it have?
How an inheritance is dealt with in the event of separation will generally involve consideration of the following:
• The timing and the length of the relationship
• The amount received
• How it was applied
• The financial circumstances of the parties at the time of the Court’s decision
The timing of the inheritance is important. For example, if a party received their inheritance in the early years of a 25-year relationship then depending upon the amount and how it was applied, the inheritance may not result in a significantly higher contributions assessment to the party who received it. This is because often during long relationships each spouse makes various financial, non-financial, homemaking and parenting contributions which can offset a financial contribution by way of an inheritance.
Conversely, if the inheritance was received late in the relationship or after separation or the parties were in a short-term relationship, then the party who received it will likely receive a higher contributions assessment.
The amount received will affect the Court’s ultimate determination. If modest in light of the parties’ combined net assets (for example a $50,000 inheritance compared to net assets of $1.5 million) then this may have little effect on the Court’s assessment of contributions. However, if the inheritance comprised $1 million of a $1.5 million property pool, then it is highly likely the contributions would be assessed in favour of the spouse who received the inheritance.
It will also be relevant for the Court to consider how the inheritance was applied. If it was used to fund family holidays or extravagant purchases and is no longer represented in the parties’ net assets, then it will carry less weight when assessing contributions compared to an inheritance which was used to purchase a family home or investment property, establish a share portfolio or contribute to superannuation and that asset/s still exists at the time of determination. It may also be relevant in the Court’s determination if the inherited funds are kept separate and not otherwise intermingled with the parties’ joint assets.
The financial circumstances of the parties at the time of any determination is also a relevant consideration, particularly if a spouse has received an inheritance following separation. For example, if the parties had net assets of $1 million and there was a post-separation inheritance of $500,000, a Court would not likely consider it just and equitable if one spouse received total net assets of $500,000 and the other spouse received the remainder plus the inheritance (total assets of $1,000,000). In that instance the Court may consider awarding the spouse without the inheritance a larger percentage of the net assets.
What if you are a beneficiary under a Will or Estate but the testator has not yet passed away?
This question often arises when a party or their spouse has a parent who is elderly or unwell. A future inheritance will generally only be taken into account by the Court if the testator’s death is imminent and there is evidence of that (for example, a medical report) and what entitlement the spouse might have in the testator’s estate. In that instance, the inheritance cannot be included in the assets to be divided between the parties but the Court can consider it at step 3 of the 4-step process in assessing the parties’ future needs.
How can an inheritance be protected?
As between spouses, the only way to protect an inheritance in the event of separation is to enter into a Financial Agreement pursuant to the Family Law Act 1975 (Cth). For a Financial Agreement to be binding it must meet specific requirements set out in the legislation, including that before signing the Agreement each party to the Agreement obtain independent legal advice as to:
• The effect of the agreement on the rights of that party; and
• The advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement
The terms of a Financial Agreement are tailored according to the individual circumstances of the case and most importantly, what agreement can be reached between the parties. A Financial Agreement can be entered into before, during or after a marriage or de facto relationship. Some options for a Financial Agreement are:
• Any assets (including an inheritance) a party has at the commencement of their relationship are excluded from any division of assets between them;
• Any assets (including an inheritance) a party acquires in their sole name during the relationship are excluded from any division of assets between them;
• Any inheritance received by a party is excluded in its’ entirety; or
• The Agreement specifies what portion of that inheritance the other spouse receives in the event of separation.
If you and your spouse have separated and there is the possibility you might receive an inheritance into the future it is important to finalise your property/financial settlement with your spouse as soon as possible (and before the death of the testator) and have any agreement reached formally documented in either Consent Orders filed in the Family Court of Australia or in a Financial Agreement. Provided your agreement is formally documented and there are no other grounds (such as fraud) on which the Order or Agreement can be set aside, then your spouse cannot later claim they are entitled to receive any portion of an inheritance you might receive into the future.
If a testator is concerned about whether any gift they leave to a beneficiary will be attacked in family law proceedings, then the testator might wish to consider whether there are any asset protection options available to them and make any changes to their Will and estate planning while they still have capacity to do so.
Operation Lamister commenced in 2014 by the Australian Federal Police and involved several co-offenders charged with attempting to import almost 100 kilograms of cocaine hidden in a 13-metre yacht.
After extensive surveillance of the yacht’s route throughout Ecuador and the Pacific Islands, the yacht eventually anchored in a Gold Coast marina where the drugs were removed from the vessel.
The two co-offenders met with our client at a café nearby where they were intercepted and arrested by Australian Federal Police. Our client was subsequently charged with one count of ‘Attempting to possess a commercial quantity of border-controlled drugs’.
After a comprehensive review of the Brief of Evidence by Nick Crawford of our office, it was evident that there was no direct evidence to support a link between our client and the principal offenders, or that our client knew of the dangerous drugs located on the yacht.
Our client entered a plea of not guilty and was committed to trial before the Brisbane District Court in September 2018 with Nick Crawford instructing Doug Wilson of Counsel.
After an eight-day trial, the Jury reached their decision after deliberating for two days. The principal offenders were convicted and the Jury returned a not guilty verdict for our client.
If you are interested in our criminal lawyers acting on your behalf, please call Nicholas Crawford on 3009 8467, Alan Phillips on 3009 8469 or Tyronne Thomas on 3009 8481.
Related Article: Men convicted of smuggling cocaine into Queensland on luxury yacht
Operation Papa Cider – Commercial production of 3275 cannabis plants – 3 years imprisonment suspended after 8 months
On 13 July 2017, the Queensland State Drug Squad commenced Operation Papa Cider, targeting a drug trafficking network operating in South East Queensland. The network was responsible for trafficking commercial quantities of cannabis from Queensland and interstate based Vietnamese crime syndicates. (more…)
The government has recently announced a new visa for Parents, giving Australian citizens and permanent residents new opportunities to bring their parents to Australia. This article compares the new temporary Sponsored Parent Visa with the permanent Contributory Parent Visa in the hope of assisting potential clients make an informed choice on the best way to bring their parents to Australia.
SPONSORED PARENT (Temporary) VISA
The Department of Immigration has announced that they will accept new Sponsored Parent (Temporary) Visa applications from 17 April 2019. Visas will be issued from 1 July 2019. The new visa allows parents to remain in Australia for a longer period of time, up to five years at a time without departing. There is also the prospect of extending this visa to a maximum period of ten years.
Parent visas are currently split across several visa streams, including the traditional Parent subclass 103 visa, the Contributory Parent (Temporary) and the Contributory Parent (Permanent) visa. This article compares this new Sponsored Parent (Temporary) Visa and the existing Contributory Parent Visa, so that parents of Australian citizens, permanent residents and eligible New Zealand passport holders can make an informed choice on which is the most appropriate visa for their own circumstances.
This new visa can reduce community concerns about the limited number of parent visa places in the migration program and associated lengthy waiting periods.
Who can apply for this visa?
An eligible child can be a sponsor to his or her biological, adoptive or step-parent. The sponsor must be an Australian citizen, Australian permanent resident, or eligible New Zealand citizen who has been residing in Australia for the last four years and has met the minimum household income threshold. This required “household income threshold” is listed to be A$83,454.80. This is the taxable income that will need to be confirmed by ‘the tax assessment notice’ for the financial year immediately preceding the year in which the application for approval as a sponsor is submitted. While this sum may seem high, it is noteworthy that this amount can be made up of a joint income comprising the applicant’s spouse or de facto partner, or one child of a permitted sponsor.
Steps in the processing of the visa
The process requires that the eligible child must first sponsor the parent(s).
When the sponsorship application is approved, the sponsored parent(s) can apply for this visa. Visa applications must be lodged within six months of sponsorship approval and cannot be lodged until the sponsorship has been approved.
The costs of the new visa are as follows:
• Sponsorship fee: $420
• Application for a three-year visa: $5,000; or
• Application for a five-year visa: $10,000
The visa application charge is payable in two instalments, with one payment at time of application and the remainder paid prior to visa grant.
Benefits of the new visa
Unlike the Contributory Parent Visa, the parent does not need to meet the ‘balance of family test.’ That is, parents can be eligible even if only one of their children lives in Australia.
A parent can apply for either a three-year visa or a five-year visa. Parents can be granted extensions to a maximum period of 10 years. As this is a multiple entry visa, Parents have the flexibility of entering and leaving Australia as they wish.
The Six must-know facts about the new temporary sponsored visa for parents.
1. Up to 15,000 Sponsored Parent (Temporary) visas may be granted for each program year (from 1 July 2019 to 30 June 2020).
2. Only two parents per household can be sponsored for this visa at a time.
3. This is a multiple-entry visa, and successful applicants will be permitted to stay in Australia for the entire duration of their visa.
4. The visa provides a temporary status and cannot be a pathway to permanency.
5. As this visa does not provide access to Medicare, applicants are required to purchase medical insurance for the duration of their visa.
6. Visa Holders cannot work or seek access to social security benefits.
This visa allows eligible applicants the right to stay in Australia indefinitely with multiple entry facility. They can work and study in Australia, and also enrol in Medicare – Australia’s scheme for health-related care and expenses.
Eligible applicants are also allowed to access the social security payments after the ten-year period has passed.
Process of Contributory Parent Visa
A parent can apply directly for the permanent Contributory Parent Visa (Subclass 143) as a one stage process. In the alternative, if a parent is not able to pay the required second visa application charge, they can apply for the two-stage Temporary Contributory Parent Visa (Subclass 173), followed later by the Permanent Contributory Parent Visa (Subclass 143).
The annual migration program allows for only a small number of visas under the parent category while the demand is increasing. As a result, a huge queue has now built up necessitating in longer times to finalise applications.
The Six General Information about Contributory Parent Visa
This visa will allow eligible applicants:
1. The right to stay in Australia indefinitely.
2. Work and study in Australia.
3. The opportunity to enrol in Medicare – Australia’s scheme for health-related care and expenses.
4. Apply for Australian citizenship when they become eligible.
5. Access to social security payments after the ten-year Assurance of Support period has passed.
6. Be eligible to sponsor eligible relatives.
Assurance of Support
A Contributory Parent Visa Sponsor will need to provide an Assurance of Support (AoS) as part of the visa process.
The current bond amounts are as follows:
• Main Applicant $10,000 AUD
• Secondary Applicant $4,000 AUD
In accordance with changes made by the Department of Social Services, the way that an Assurance of Support income level is assessed has become very complicated as the assurance can be given by a single individual assurer or by multiple “joint individual assurers”. This is undertaken in accordance with a prescribed formula which is dependent on the Assurer(s) income levels and the number of parents sponsored.
Best Parent Visa For Your Family?
With increased options available, it has enabled different opportunities for Parents and families to consider. But the dilemma may be in choosing the best option.
In comparing the options, the cost and process for the Contributory Parent visa option is onerous and considerably more expensive, but it provides permanent residence. The second visa application charge is extremely expensive and cannot be refunded once paid.
In contrast, while the sponsored parent (temporary) visa application charge is considerably less, it is only temporary and does not lead to permanency. But it will allow families to remain together even if it is not permanent.
The most crucial difference between these two visas is that the Contributory Parent Visa must meet the balance-of-family test while this test is not applicable to the new sponsored Parent (Temporary) Visa, regardless of the number of children who live in Australia.
Eligible parents are in the best position to determine which visa option is most appropriate for their own circumstances, noting that each visa has different requirements, visa application charges, conditions and stay periods.
As only a limited number of visas are issued yearly, it is anticipated that the demand for this visa will be extremely high as there is no “balance of family” test. It is therefore expected that the annual program will be utilised very quickly.
If you are interested in this visa, it will be in your interest to apply for it as soon as possible before the visa program is fully subscribed.
If you wish to discuss your Parent Visa options or seek advice on the best Parent visa pathway to take, Rostron Carlyle Rojas Lawyers, a law firm that specialises in Migration Law will be happy to assist you. We also speak Chinese, Punjabi and Korean languages in the firm.
Come and see us for honest advice.
The initial consultation fee will be re-credited to you if you wish to proceed with your parent visa application with us.
For assistance, please contact:
Peter Kuek-Kong Lee, Special Counsel & Registered Migration Agent MARN 0427478 email@example.com
Anna Gunning-Stevenson, Associate and Registered Migration Agent MARN 1797244 firstname.lastname@example.org
Article is prepared by Kyung Kwon and Peter Kuek-Kong Lee