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You’ve been served!

February 23rd, 2018

A guide for professionals on what to do if you’ve been served with a family law subpoena

We often receive calls from accountants, financial advisors, counsellors, business owners and other professionals asking us what they should do after being served with a subpoena to produce documents to the court or to appear as a witness in court.

We have put together a guide to help our clients and referrers be better prepared the next time that they are served with a subpoena.

What is a subpoena?

A subpoena is issued by a court at the request of a party to Family Court proceedings.  A subpoena requires a person to either produce documents to the court or attend court to give evidence.  Sometimes, a subpoena will require a person to do both.  The schedule to the subpoena will describe the documents that must be produced.

A subpoena must be complied with unless:

  1. it is served incorrectly;
  2. you are not provided with ‘conduct money’;
  3. the person who applied for the subpoena has written to you and advised that you no longer need to comply with the subpoena; or
  4. you complete an objection to the subpoena.

If you do not comply with a subpoena

The consequences of not complying with a subpoena or objecting to a subpoena is that you may be found in contempt of court and you may be ordered to pay costs of your non‑compliance, or a warrant may be issued for your arrest.

The court takes non‑compliance seriously which is why you should obtain legal advice from a family lawyer if you intend not to comply with a subpoena or do not understand what you are required to do to comply with the document.

Service of the subpoena

The subpoena must be served on you at least 10 days prior to the time and date stated in the subpoena for the production of the documents.  If you are served with a subpoena less than 10 days prior to the time and date for production, the party serving you may request that you consent to a reduction in the time for compliance.  You should not agree to reduce the time for compliance unless you are certain that you will be able to produce the documents to the court on or before the date stated in the subpoena.

Conduct money

The party who has requested the subpoena must provide you with at least $25.00 to meet your costs of complying with the subpoena.  If you have not been provided with conduct monies, then you do not need to comply with the subpoena.

If the money that has been provided to you is insufficient to meet your costs of complying with the subpoena, then you must still comply with the subpoena and produce the requested documents or attend court to give evidence.  However, you can write to the issuing party directly giving them notice that you will incur substantial loss or expense in complying with the subpoena and estimating that loss or expense.  If the party does not supply you with sufficient conduct money to cover your loss or expense you may apply to the court (prior to the court date) for an order that the party pay to you an amount in addition to the conduct money supplied to cover your loss or expense.  You will then need to attend court at the next court date for the hearing of your application.

Objecting to a subpoena

You cannot just object to the subpoena if you do not want to comply with it.

Typical reasons for objecting to a subpoena include:

  1. it is an abuse of process. This means you cannot issue a subpoena in the hope of finding information.  This is commonly referred to in family law as a ‘fishing expedition’;
  2. the documents are privileged, e.g. generally speaking a solicitor’s file is privileged; or
  3. the terms of the subpoena are too broad or oppressive.

You must communicate your objection in writing and on the required form.

We strongly recommend that you obtain legal advice prior to objecting to a subpoena.  Our team of family lawyers are able to review the subpoena and determine whether an objection can be made on any of the above grounds.

Producing the documents

To comply with the subpoena you must produce to the court (and not to the issuing party) the documents specified in the subpoena, with a copy of the subpoena.

Documents can be produced by attending at the court registry in person on or before the date and time for production that is stipulated in the subpoena.  Otherwise you may post, or otherwise deliver the documents not less than two days before the date and time stipulated for production in the subpoena.

If you are producing original documents, then you will need to complete the ‘notice’ on the last page of the subpoena.  You can produce copies but you must complete an ‘affidavit for producing document under subpoena’.

Recent changes to law now permit persons served with a subpoena to produce copies of documents in any electronic format, i.e. on a USB.

If you are unable to produce the documents by the date stated by the court, then you should contact the court and explain why you are unable to comply within the required time and request an extension.

What happens to the documents after the matter has been determined?

When producing the documents, you may inform the court that the documents may be destroyed rather than returned to you.  If you do not specify that the documents can be destroyed, then the court will return the documents to you.

The subpoenaed documents can only be used by the parties for the court proceedings and cannot be disclosed to any other persons except their legal representatives without prior authority from the court.

For more information about this issue and all family law matters please contact Rochelle Ryan.

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What happens to my super when I die?

February 13th, 2018

As a wills and estates solicitor I often hear the statement “I don’t have any assets, so I don’t need a will”.

This couldn’t be further from the truth.  I often respond with the following questions.

Me: “Do you work?”

Friend: “Yes

Me: “Do you have super?”

Friend: “Yes

Me: “That’s an asset right there.

In fact, superannuation is often a person’s largest asset.

In the estate planning world, superannuation is an unusual type of asset.  This is because superannuation is not typically an asset of your estate which is covered by the provisions of your will.  Your will only covers assets owned by you personally.  On the other hand, your super is held for you on trust by the trustee of your superannuation fund.

In order to direct who gets your super in the event that you were to pass away, you need to complete a binding death benefit nomination form (“BDBN”) with your respective superannuation fund or if you have a self managed superannuation fund, in accordance with the terms of the trust deed.

I bet you’re still thinking, well in that case I don’t need a will.

What I often find in practice is that a lot of people do not fully understand who you can actually nominate on those binding death benefit forms for your nomination to be binding.

Under the superannuation law, the eligible beneficiaries (whom you can nominate on your BDBN form) include:

1. your dependants; or
2. your legal personal representative (i.e. executor of your will or administrator of your estate).

“Dependants” include:
1. your spouse (married, de facto or same sex partner);
2. your children (including step-children and adopted children);
3. anyone who is financially dependent on you when you die; and/or
4. anyone who is in an interdependency relationship with you when you die.

As part of my estate planning practice, I always ask this question “Do you have a binding death benefit nomination in place?” and 95% of younger people or people without dependants respond with:

Yes, I have nominated my sister and my brother

Or

No, what is that?”.

If your nomination is invalid (i.e. if you have nominated someone who does not fit within the criteria of eligible beneficiaries above) or you do not having a binding death benefit nomination in place, the trustee of your superannuation fund has discretion as to who they pay your superannuation death benefit to in the event of your demise.

If you don’t have any dependants, then in majority of cases the superannuation fund will pay your superannuation death benefit to your estate, to be distributed in accordance with the terms of your will.

What if I don’t have a will?

If your superannuation is paid into your estate and you don’t have a will, it will be distributed in accordance with the rules of intestacy, which are a legislative set of rules. The rules of intestacy do not take into account your circumstances at the time of your passing and therefore, the distribution of your estate under these rules, may not be in accordance with your wishes.

Let’s use the example of Ben’s estate.

• Ben was 30 years of age when he passed away suddenly.
• He did not have a spouse (married or de facto) and had no children.
• Ben’s main asset was his superannuation (including a life insurance component), worth approximately $400,000.00. Ben had completed a binding death benefit nomination, and had nominated his two siblings Jack and Jill (50% each).
• Ben did not have a will.
• Ben was close with his mother, Jane, however he was estranged from his father, Peter.
• Jane attempted to administer Ben’s estate as his next of kin. She contacted his superannuation fund to have the funds paid to Jack and Jill, however the superfund asked for a grant of letters of administration* before they could release the funds.
• Jane obtained the grant and the superannuation fund advised her that because Ben’s nomination was invalid, they would be making a distribution to Ben’s estate.
• As mentioned earlier, Ben died intestate (that is without a will), so that meant that the rules of intestacy apply.
• Under the rules of intestacy, as Ben was not survived by any dependants, his estate was distributed to his parents equally.
• This was clearly not in accordance with Ben’s wishes and there was very little his siblings (and his mother) could do.

If Ben had simply prepared a will, gifting his estate to Jack and Jill equally, then this situation could have been avoided.

If you would like assistance preparing a binding and effective estate plan, please do not hesitate to contact me.

*A grant of letters of administration is an official document issued by the Supreme Court of Queensland which declares the name of the person(s) who has the formal authority to handle the financial matters of a deceased person.

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Short term (holiday) accommodation in community title schemes – an international issue

February 6th, 2018

For years there has been tension in some community (strata) title schemes involving conflicts between holiday makers and permanent residents. There have been attempts by schemes which are predominantly permanent residential complexes to outlaw holiday letting via by-laws, and even some attempts by schemes which are predominantly holiday let to outlaw permanent residence.  So far, these attempts have failed in Queensland, with the by-laws being found to be invalid.  The town planning and development approval laws are effectively the only controls, but many local planning schemes and approvals are not sufficiently clear to offer any help.

The popularity of short term accommodation booking services like Airbnb have added further fuel to the fire, and last year saw some significant decisions about the issue. In fact, the issue went all the way to the Privy Council in London, the highest court in the British Commonwealth[1], in an appeal from a case in the Turks and Caicos Islands[2].  The Turks and Caicos Islands are a collection of islands located in the northern Caribbean, almost as beautiful as Far North Queensland. In that case, a body corporate was attempting to enforce a by-law which said that units in the complex could only be used for the private residence of the owner, or the owner’s guests and visitors, but could be rented out for periods of not less than one month.

One of the owners was letting his unit for a week at a time to holiday makers. He argued that the by-law was invalid, because it was a restriction on the sale, disposition or letting of the unit, and contravened a prohibition on such restrictions contained in the relevant strata title legislation. A similar restriction can be found in the strata title legislation in most states of Australia, including Queensland.

The Privy Council found that the by-law was valid, because it did not restrict or prohibit letting, but rather related to the use of the lot, and sought to preserve the fundamentally residential character of the complex.  In doing so, the Privy Council had regard to a similar decision made by the Court of Appeal in Western Australia in June 2017[3].

So will this decision help bodies corporate in Australia who want to impose such by-laws?  Well in some jurisdictions, yes, but not in all.  New South Wales, Western Australia, Northern Territory and ACT will all benefit, as they all have directly comparable legislation to that considered in the Privy Council decision. South Australia has a similar provision, but also has a section allowing a court to strike out a by-law which reduces the value of a lot, which might prove problematic.  The Privy Council decision might also be helpful in Victoria, but the by-law will have to be very carefully worded due to differences in the legislation.  Tasmania has a section in its legislation which specifically allows by-laws to prohibit short term letting, so it should be less of an issue there.  Queensland is different again.

In Queensland we have a section of the Body Corporate and Community Management Act which corresponds with the legislation considered by the Privy Council[4].  However, we also have sections which prohibit by-laws restricting the type of residential use[5], and prohibit by-laws which discriminate between types of occupiers[6].  Short term and long term accommodation have both been regarded as residential uses in Queensland, and there have been several examples of by-laws dealing with the issue having been declared invalid.  There is also a possible argument that it is unreasonable for a body corporate to adopt a by-law which prohibits a use of a lot which would otherwise be lawful, and that doing so breaches the body corporate’s duty to act reasonably under section 94(2) of the act.  That argument has been successfully used to invalidate by-laws which prohibit having animals in a community titles scheme. So whilst the recent decisions offer hope to much of the rest of Australia, it is likely that Queensland will need to await legislative change before bodies corporate can regulate short term letting through by-laws.

[1] It was once possible to appeal to the Privy Council from Australian Courts, but that was abolished in 1986.

[2] O’Connor (Senior) and Others v The Proprietors, Strata Plan No. 51 [2017] UKPC45

[3] Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASC 104

[4] Section 180(4) Body Corporate and Community Management Act

[5] Section 180(3)

[6] Section 180(5)

For more information about this article, please contact Partner Nigel Hales.

Nigel is also the only Accredited Property Law Specialist in Cairns.

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