Powers of Attorney

Every person needs a Power of Attorney. It is possible to appoint an attorney or joint attorneys who must act jointly. Obviously, the person or persons being appointed Power of Attorney must be someone who is trusted by you. The general rule is that an attorney may make any lawful decision which a principal can authorise an attorney to make. In Queensland that is governed by the Powers of Attorney Act 1998 Qld.

The powers granted to an attorney can be for health matters, financial matters or both. However, it is important to realise that once you have granted a Power of Attorney, the attorney may act on that grant in relation to the powers given by that grant whether or not you have authorised it. That is why your attorney or attorneys should be a person or people trusted by you. It is often useful to have a professional advisor such as an accountant or a lawyer as one of the attorneys. If there are joint attorneys, if you appoint a single accountant or lawyer as your attorney, you may be charged a proper professional fee for the work they have to undertake should they need to exercise their powers.

If you have an ordinary Power of Attorney, the powers delegated by it cease to exist should you become incapacitated and aren’t able to make decisions for yourself.

It is for that reason that the legislation has created an Enduring Power of Attorney. This means the attorney or attorneys appointed under the Enduring Power of Attorney can continue to act, notwithstanding the fact that you have become incapacitated or lack mental capacity.

Solicitors fees to draw Powers of Attorney are quite modest and are well worth the investment for the peace of mind that the Power of Attorney will give you regarding the management of your affairs.

Contact Rita Derek of this firm who does Powers of Attorney starting from $185 including GST.

Posted in: Derek Legal Blog at 23 January 19

Domestic Violence

Domestic violence is a scourge in our society. When one thinks of domestic violence one thinks of something physical, but the definition of domestic violence contained in the Domestic & Family Violence Protection Act 2012 is very wide.

It includes behaviour that is physically or sexually abusive, is emotionally or psychologically abusive, is economically abusive, is threatening, is cohesive or in any other way controls or dominates someone and causes that person to fear for that person’s safety or well being or that of someone else.

Some examples of behaviour that constitute domestic violence are coercing a person to engage in sexual activity, depriving a person of a person’s liberty or threatening to do so, threating to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed and the list goes on.

If you are a victim of domestic violence you can bring a domestic violence action against the person in the Magistrates Court using a solicitor, or you can make a complaint, so police can prosecute on your behalf.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 12 December 18

Equal Shared Parental Responsibility

Cameron & Brook [2018] FamCAFC 175 is an interesting case.

There the parties had entered into Consent Orders in 2015, which provided for parental responsibility being equally shared between them. The Orders also provided for a dispute resolution assistant to resolve any dispute regarding parenting. This was to be done with the assistance of a Family Dispute Resolution Practitioner prior to commencing proceedings in a Court.

One of the children was aged 14 and attended a school that participated in an overseas student exchange program. If the student was chosen, the student would attend a school overseas for a period of between four and eight weeks. The mother wished to authorise the child’s participation in the program, but the father did not asserting that the child was insufficiently mature to do so.

The mother applied to the Federal Circuit Court for an Order that the child be permitted to participate in the program. This did not mean that she would in fact be selected for the program, but if she was, she would then be required to have schooling overseas for a period of time.

The Judge’s at first instant decided the situation was analogist to Rice v Asplund [1978] FMCA 84 where a material change of circumstances is necessary before an Order can be varied. He held that only where it was such a change of circumstances that the Court ought to intervene, or the parents or the child didn’t have capacity, or where the situation is unworkable that an existence of unacceptable risk to the child is apparent, had to be present before the Order could be made. In the event he did not make the Order.

The Full Court was not persuaded that the situation was analogist to Rice v Asplund saying, “there is here no attempt to reagitate issues previously agitated or issues addressed in civil by the Consent Orders that were made three years previously. The instant application involves a new question relating to an aspect of parental responsibility, that was not at all in the contemplations of the parties at the time of the original Consent Order”. The Court decided that there was jurisdiction and power to make the Orders sought and ordered, “Notwithstanding equal shared parental responsibility, the mother shall have sole authority and responsibility for authorising the participation of the child in the process of the selection for inclusion in the exchange program at the school”.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 26 November 18

Fixed Costs – Initial Appointment

Marriage breakdown is a stressful time for the parties. It is important to get legal advice early, as that is the best way of relieving stress and gives you the best chance of an inexpensive and speedy resolution to matters that must be dealt with when a marriage breaks down namely parenting matters and the division of the matrimonial property.

Rita Derek has 37 years’ experience in Family Law and has helped thousands of clients resolve their family law issues. She offers a fixed fee of $275.00 inclusive of GST for the initial consultation of your family law matter. If you have a family law issue, it is important to act quickly and contact Rita on (07) 5591 5900 or ritaderek@dereklegal.com.au.

Posted in: Derek Legal Blog at 24 October 18

Domestic Violence

Unfortunately, there is domestic violence in our society.

Apart from threatening and abusive behaviour, the following is domestic violence as set out in the explanation of Domestic Violence Order.

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 a person.

Unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology.

Examples of surveillance by using technology include:

- reading a person’s SMS messages;
- monitoring a person’s email account or internet browser history;
- monitoring a person’s account with a social networking internet site;
- using a GPS device to track a person’s movements;

- checking the recorded history in a person’s GPS device.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 19 September 18