Month: December 2018

While for many of our clients Christmas will be a joyful time, as lawyers we are always very aware of the difficulties many families face at this time of year.

We know that as some of us play tug-of-war with cheap crackers, laugh at the bad jokes and tissue-paper hats others will be forced to wear flattened green tracksuits behind razor-wired walls.

As many of us sit in anticipation of roasted meats and succulent, cold prawns, others are facing financial uncertainty that the most expensive time of year brings into painfully sharp focus.

And while many will see the wide-eyed joy of small children tearing at wrapping paper, for others there will be a little chair at the table with no one to sit in it.

Framed this way the Christmas season becomes one of sadness, not joy.

And this is not something as lawyers, entrusted with your best interests, we can ever forget – that while the holidays may come and go the problems many of us are facing will extend into the New Year.

For those facing a difficult Christmas please, know this.

In the New Year we will be the pick of truth to the walls that separate loved ones from their families.

We will be untying the strings that bind us to financial uncertainty and ensuring 2019 is a prosperous one.

And we will be ensuring that little chair is filled before it is outgrown.

Our offices will be open right throughout the Christmas break – excepting Christmas Eve, Christmas Day, Boxing Day and New Years Day.

Should you require urgent legal help on any of these dates please call 13 14 LAW and someone will always answer the phone.

We look forward to helping you with your legal matter in 2019.

.

When two people decide to separate one of the first things that needs to be sorted out is property.

While under Australian law couples can not actually get formally divorced until one full year after they separate, they can agree on how to divide their assets – or go to the Family Court seeking orders – more or less, straight away.

The general formula for how this is done is quite simple.

 

Read other posts from our blog:

Your Rights if Your Ex is Withholding Access to Your Child

The 11 Things You Should Know Before Getting a Divorce

 

First lawyers will add up all of the assets the former couple owns – for example: the house, cars, any property investments, business interests, shares and any superannuation in each of their names.

The total value of the former couple’s debts are then added together for example: mortgages, car-loans and any business loans and the total value of these debts is then subtracted from the value of the property above.

This figure is then divided by two and this gives us the starting point – a 50/50 division of assets.

Once this step is completed adjusting factors need to be taken into account.

Adjusting factors shift the amount each side of the broken-down relationship will get in the final property settlement.

The adjusting factors the court can take into account include:

 

1. The age and state of health of each of the people involved.
2. How much each of the people presently earns.
3. Any financial resources each person has.
4. Each person’s physical and mental capacity to undertake gainful employment.
5. Whether either of the people has care or control of a child from the relationship, who is less than 18 years old.
6. Any commitments either of the people has that are necessary for them to support themselves, or a child they have a duty to maintain.
7. The responsibilities of either party to support any other person.
8. Whether each person is eligible for a pension or a payment under a government scheme.
9. Whether each person will be able to maintain a standard of living that is reasonable.
10. Whether or not one of the people is likely to use some of the money to undertake a course of education or establish themselves in business.
11. The impact any court-order could have on one of the people’s ability to repay debts to a creditor.
12. The extent to which each of the people has earned or otherwise contributed money to the collective finances of the former couple.
13. The extent to which the marriage has impacted either of the people’s ability to work and earn an income – for example if one stayed home to look after a child.
14. Any child support which needs to be paid.
15. Any benefit either of the people may gain from a discretionary trust or by way of an inheritance.

 

There is case law which interprets the legislation on this topic so it is very important to obtain legal advice on how the adjusting factors may apply in your particular situation.

Call 13 14 LAW or fill out a webform to speak to one of our lawyers now.

Changes to the Family Law Act 1975 (Cth) which will mean people who have been convicted, or accused, of domestic violence offences, will not be allowed to cross examine their ex-partners, were passed by the Federal Senate in December.

These changes are limited to the Federal Family Courts.

The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 (Cth) was passed by the Federal Senate on Wednesday December 5, 2018.

The new laws will mean people who have been convicted, or charged, with offences involving family violence – or who have had a protection order taken out against them – will not be allowed to personally cross-examine the individuals who have raised the allegations in the Federal Family Court.

The new laws will add three new sections to the legislation which governs Australia’s family law.

The first section sets out the circumstances under which flags will be raised when a person asks to cross-examine their ex-partner.

Under the new laws if a person has been convicted of, or charged with, an offence involving violence, or a threat of violence, against their ex-partner – they will not be allowed to cross-examine that partner.

The same is true if the allegations of family violence are raised by a child involved in the proceedings.

In addition to the above if a protection order – often referred to as a domestic violence order or DVO – is in place between people involved in a Family Court case, the person accused of committing the violent acts will not be allowed to personally cross-examine their accuser.

Under the second section of the new legislation circumstances where police have not been involved but there are still allegations of domestic violence are addressed.

This section does not preclude the accused from cross-examining their accuser but instead says the court may decide it is appropriate that the alleged victim appear only by video-link.

Finally, the third section indicates the laws will be reviewed by the government two years after they commence.

The new laws mean self-represented litigants in Family Court matters will be given legal aid in the event that they wish for the other side to be cross-examined in relation to accusations, or proven instances, of domestic and family violence.

The law in Queensland provides a number of protections for children who are accused of crimes – both when they are first arrested and if they are later charged with a criminal offence.

Firstly, Section 421 of the Police Powers and Responsibility Act 2000 (Qld) states if a police officer wants to question a child they must first allow the child to speak to a support person of their choosing.

Secondly, the support person the child has chosen must be present while the child is being questioned.

The only circumstances where a police officer is allowed to question a child without a support person are where it is not practical to enable them to do so, or, where the support person is unreasonably interfering with the officer’s questioning.

Section 29 of the Youth Justice Act 1992 (Qld) states a court must not admit into evidence any statement made by a child unless the Court is satisfied a support person was present.

There are only two exceptions which are when the support person is an accomplice of the child or when the support person is likely to become an accessory after the fact.

 

Police Required to Consider Alternatives before Pressing Charges

Under Section 11 of the Youth Justice Act 1992 (Qld), if police are investigating a child over an offence that carries less than a 14-year maximum jail sentence they must first consider five other options.

The first option is taking no action.

The second is administering a caution instead of taking action.

If it is a minor drugs offence police must consider giving the child an opportunity to take part in a drug diversion program.

If the offence is a graffiti offence police should consider diverting the child to a graffiti removal program.

 

If the Matter Proceeds to Court

If a child is then charged with an offence and forced to appear in court there are a number of laws which indicate how they should be treated.

Firstly, Section 21A of the Evidence Act 1977 (Qld) means it is open to your child’s lawyer to apply for a support person to sit with your child if they are required to give evidence.

It is also open for your child’s lawyer to ask that other people involved in the matter be excluded from the courtroom, if your child may find this intimidating and that any questions they are asked are simple and limited by time.

Further, it is open to your child’s lawyer to ask that the number of questions your child is asked about any one issue be limited and not repeated over and over.

 

Should Parents Attend?

Magistrates believe it is very important for parents, or guardians to attend court with their children.

Further, under Section 70 of the Youth Justice Act it is open to the court to order a parent to attend and adjourn proceedings until they are present.

Additionally, under Section 69 of the same legislation the courts can not proceed with a child’s matter until it is satisfied the parents have been informed and it can recommend that financial assistance be made available to ensure attendance.

 

Will the General Public Be in the Courtroom?

The Children’s Court is generally closed to the public which means only family and people involved in the case are allowed in.

Occasionally the Magistrate will allow another person to be present however you and your child will be informed should this be the case.

In general, the media is prevented from reporting identifying details of children, however, they may be granted leave to sit in the court and report in a manner that does not make your child’s name public.

Under Queensland’s Criminal Law (Rehabilitation of Offenders) Act 1986 certain criminal convictions can become a spent conviction which means they are removed from a person’s criminal record after a set period-of-time has passed.

The timeframes for when a criminal conviction becomes a spent conviction depend on the court the person appeared in and the sentence they received.

Firstly, if a person is sentenced to more than 30 months in custody that conviction can not become a spent conviction and will remain on the person’s criminal history for life.

 

If your employment prospects are being impacted by a conviction which may be spent call 13 14 LAW or fill out a webform to speak to one of our lawyers.

 

However, if a person is not sentenced to serve time in prison or, gets a sentence of less than 30 months, then that conviction can become a spent conviction, after certain timeframes have passed.

Those timeframes are: 10 years if the person was sentenced in the District or Supreme Court or, five years if the person was sentenced in the Magistrates Court.

If a court order, such as a good behaviour bond, was issued when the person was sentenced, the time starts counting from the date when the order finished.

If the person fails to comply with the court order the time-period starts over.

 

Federal Spent Conviction Legislation

 

If you have been charged and convicted of a Commonwealth offence your conviction is governed by Federal law.

The Commonwealth Crimes Act 1914 sets out when convictions under Federal legislation become spent convictions.

 

Read other posts from our blog:

The legal fact every Queenslander should know about sexy selfies

The Qld teachers who are allowed to smack students

 

A person’s conviction can not become spent unless they were sentenced to less than 30 months jail – or avoided prison altogether.

Under Commonwealth law it takes five years for convictions a person incurred as a minor to become spent and ten years if they were convicted as an adult.

 

The Exceptions

 

There are many exceptions to the law above and while the main outcome is that spent convictions are not disclosed on standard criminal history checks, there remain circumstances where spent convictions are disclosed.

That being said for most people applying for a job only involves a standard police check.

For people applying to become lawyers there is an obligation to disclose any information which the governing authority may consider to be relevant to their character and spent conviction legislation does not apply.

The same is true for people who apply to get blue cards or, enter a number of other professions where a character test is relevant.

One exception which breaks the other way is that under Commonwealth law a person can be granted a pardon and if this occurs (which is very rare) then their conviction will immediately become spent.