Archive for November, 2015

The importance of character references in a Court case

If you know someone who is being sentenced in Court and they ask you for a character reference do you know what to do?

The purpose of a character reference for a person who has pleaded guilty to a criminal or traffic matter is to being to the Courts attention details of good character about the accused. Lawyers will acknowledge that in many cases the character reference will not make any difference to the penalty imposed, however all lawyers would agree that a poorly framed character reference will not help at all.

Address the reference to the Court

References that are not addressed to the Court are basically unusable. An unaddressed reference is likely to be met with a comment from the Judge or Magistrate that it could be a job application or some club membership with the implication being that it will be ignored.

So it is best to see the Court papers so you can address it to the relevant Court. You do not need to address it to a particular Judge or Magistrate, “The Presiding Magistrate (insert district) Court” will do.

This immediately indicates it is for the person who is before the Court. For the same reason it needs to have a date and preferably be kept clean, businesslike and typewritten. Overall the reference should not exceed one page. Often the best ones are succinct.

Specify the time you have known the person

It should include details stating how long the person writing the reference has known the person they are writing about and set out the details about how that happened, for example through work or a sporting team.

The person writing the reference should say in their own words and (hopefully) make relevant and positive comments about the character of the subject.

Acknowledge the offence

You need to put yourself in the shoes of the judicial officer. A reference will carry more weight if the person writing the reference has been told by the accused about the offence (not just some of the offences but the lot). If the writer can make the point that the accused person has discussed it with him/her the writer can then say, if applicable, that it is out of character. It is advisable that a person writing a character reference include note this in the opening of the reference so the judicial office is made aware early on and can read with that in mind as in addition, that notwithstanding the offence, the writer is still prepared to write such a reference.

Discuss the offence with the person

For the same reason it can be helpful for the person writing the reference to actually discuss the offence with the person they are writing about. They might then be able to say that they are aware that the person is sorry or remorseful for what they have done or cite examples of why it is out of character.

Family or Community involvement

If you know the accused through a family or community association then you can cite examples of you observations about family commitments or involvement with community activities that the offender may have undertaken that you know about.

Summary

Sometimes references won’t help at all but in other circumstances they can have a positive effect in the sentencing process. Nevertheless it is better to be in a position to provide them than not. You don’t want to provide too many but if you ask say three people you may want to use the best two.

If you are ever in need of one or of having to write one it is useful to have these tips in mind.

If you need more information or if you need assistance or advice on how to proceed please call us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

Can you be separated and live under the same roof?

Before a person can apply for a divorce they have to be able to establish to the Family Court that their marriage has irretrievably broken down. This can be established if the Court is satisfied that the parties to the marriage have separated and have lived separately and apart for a continuous period of not less than twelve months prior to the filing of the Divorce application.

The twelve month period commences from the date of communication of an intention to separate.

Separated but living under the one roof explained

Being separated and living under the one roof is when a husband and wife separate but continue to live in the same home. It may be for any length of time – a few days, weeks, months or years following separation.

If the husband and wife lived in the same home during part or all of the required 12 months separation period, they need to provide additional details to the Court before they can apply for a divorce.

Two practical examples of how it works:

  1. The parties have been separated for 18 months. They have lived in the same home for the first 8 months after separation. They need to provide additional details about living under the one roof for two of the last months to the Court.
  2. Husband and wife have been separated for 4 years. They lived in the same home for 2.5 years after separation but for the past 1.5 years have lived in different homes. Here they do not need to provide extra information to the Court

Additional proof required

The additional details are provided through an affidavit (which is a document sworn or affirmed by the party). The affidavit needs to establish evidence before the Court that there has been a change in the marriage, gradual or sudden, showing that the parties have separated. If the parties are making a joint application each must file a separate Affidavit.

If the Application for Divorce, relying on separation under one roof, is made by one party alone then there must be an additional Affidavit from someone else corroborating the evidence – and this could be a relative, close friend, or family member over the age of 18 years.

The Affidavit should contain the details that show the ending of the marital relationship and this usually includes the following:

  • Not sleeping in the same bed
  • Separation of financial affairs such as separate bank accounts
  • Separating household tasks
  • Reduction in or cessation of shared activities
  • Not representing that you are still in a relationship, such as no longer socialising together
  • Communicating to family and friends that you have separated
  • Notifying Government Departments that you have separated if you receive Centrelink benefits or Child Support and attach any correspondence showing this

It is easier to prove separation under one roof if you can show there were good reasons why they had to continue or resume sharing the same accommodation (such as for the sake of the children or one party could not find or afford separate accommodation) and that husband and wife intend to live apart in the near future.

Household services still being done can be explained

The Court understands that sometimes following a separation, husband and wife may still have to share the same accommodation and one party may still perform some household services for the other, such as washing or ironing, for example, where it is necessary for the running of the home and the convenience of others who live there. This does not adversely affect the application.

Attendance at Court

If there are children under 18 years (whether relying on separation under one roof or not), the Applicant and/or their legal representative must also attend Court for the Divorce hearing. However, the party seeking to rely on separation under one roof and/or their lawyer must attend court.

In cases where there is a joint application and both parties are relying on separation under one roof and there is Affidavit material from both, then there is no need to attend.

In all other cases the Applicant and/or their legal representative need not attend so long as the Court has sufficient detail about the circumstances of your separation in your Application and Affidavit.

Conclusion

If you know someone who may need family law assistance, particularly if they are thinking of divorcing and continue to live under the one roof they should seek legal help from a lawyer experienced in family law. As you can see more details need to be placed before the Court to explain the circumstances.

For any help call us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

Enduring Powers of Attorney explained

A lot of people have heard of a Power of Attorney however most do not fully appreciate the extent of its power, the benefits it delivers or the types of Powers of Attorney that exist.

A Power of Attorney is a useful legal document used to allow someone to handle your affairs in a variety of circumstances. It is often used if you are planning to go overseas, taking an extended holiday, suffer from poor health, have an accident or reach a stage in your life when you need greater assistance managing your affairs.

In this article we examine why appointing a Power of Attorney is so strongly recommended by lawyers and explain the difference between a General Power of Attorney and an Enduring Power of Attorney.

Selecting a person to act in your place

The appointment of your Attorney enables that person (or people) to act in your place, and do the things you would normally do yourself. Such as signing documents, paying the bills and doing the banking. The person you choose, your Attorney, has the right to stand in your shoes when you wish them to look after your affairs. In reality they can enter into agreements in your name and on your behalf.

Therefore as a result of the power of the appointment it is critical that you select the right person to act in that capacity. The person does not have to be a lawyer. In fact it is important for the person to know you well and for you to trust them. It is often a trusted family member but whoever it is must be over 18.

The difference between a General and an Enduring Power of Attorney

Not all Powers of Attorney are the same.

A General Power of Attorney is a legal document that gives the Attorney the authority to make decisions about financial and legal matters on behalf of the person who appoints them. This power lasts only for as long as the person who appoints them has mental capacity. The general power ceases to operate if the person that has made the Power of Attorney loses capacity to make decisions. A General Power of Attorney is often used as a tool of convenience. For example, a person might appoint a General Power of Attorney to look after their financial and legal affairs in Australia while they travel overseas.

An Enduring Power of Attorney is similar to a General Power of Attorney except that the powers continue, or endure, in the event the donor loses mental capacity.

In New South Wales, a document appointing an Enduring Guardian can be used alongside an Enduring Power of Attorney to authorise medical and health decisions.

An Enduring Power of Attorney, unlike the General Power of Attorney, must be explained to you by a prescribed witness, that is, a lawyer.

It is important to be aware that an Enduring Power of Attorney becomes void when you die.

What happens if you lose capacity without having a Power of Attorney?

The probability that someone can lose capacity is often not properly considered by people. However if you do not have an Enduring Power of Attorney and develop a mental incapacity you are therefore unable to manage your financial affairs. It is too late then to have a lawyer prepare such a document as you do not have capacity to sign it.

The difficulty is that no person automatically has the right to manage your assets. Not even if they are your husband or wife.

This therefore has a colossal effect on all the financial decision making thereafter with your bank accounts, your jointly owned home, shares or other jointly owned assets or liabilities.

To have decisions made in these circumstances would then involve an application to the NSW Civil and Administrative Tribunal (formerly the Guardianship Tribunal).

The applicant, usually a family member, would apply to become your financial manager. However this is subject to that person being deemed fit (as in ‘fit and proper’) by the Tribunal. Failing this finding of being ‘fit’, the Tribunal may appoint the NSW Trustee and Guardian to manage your affairs.

If the NSW Trustee and Guardian is appointed, your spouse may need to consult with a government department to deal with your ongoing financial decision making until your death.

When does the Attorney’s power begin?

You may nominate when your Attorney’s power is to begin.  If you do not name a date or an occasion, it begins immediately.  On the other hand, if you lose the capacity to make such decisions before the date or occasion you name, the power begins at that point.

It is important to note that even if you give your Attorney power immediately, you may also continue to make decisions yourself while you are able to do so. By providing a Power of Attorney you do not restrict or give up the right to make financial decisions as you do today.

Summary

Today Powers of Attorney are used as a precautionary step by sensible adults rather than as a stop gap measure for an overseas trip. Professional groups such as accountants and financial planners, along with lawyers all strongly recommend that their clients of all ages and walks of life, make a Power of Attorney so their assets are not locked up if a person loses legal capacity to sign documents and their loved ones are put through avoidable stress.

If you or someone you know wants to know more don’t leave it to late, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

 

Debt Recovery Basics for Business

  1. Send a Letter of Demand to the debtor setting out the amount of money outstanding and giving the debtor say seven (7) days within which to make payment or face legal action.
  2. The debtor has the right to dispute the debt.
  3. Proceedings for small debts (less than $10,000) are dealt with in the Local Court. Proceedings start with filing a document called a Statement of Liquidated Claim which sets out the amount claimed including Court costs, Solicitor costs and interest.
  4. The Claim is then served on the debtor. The debtor has twenty eight (28) days within which to file a Defence. If no Defence is filed, the creditor can enter Default Judgment, to recover all the money and costs.
  5. Thereafter, a Writ can issue from the Court, so that the Sheriff can seize the debtors goods and sell them to satisfy the Judgment.

KEY BENEFITS OF MAKING A WILL

Parents with young children need to make Wills:-

  • Appointing Guardians to look after their children should anything happen to the parents; and
  • Appointing Trustees to manage any property, superannuation & money for the maintenance, education & benefit of the children until they turn, say, 21.

These are very important considerations and should not be left to chance, so make a Will.

STRICTER PENALTIES FOR HIGH RANGE DRINK DRIVERS

The Mandatory Alcohol Interlock Program came into effect on 1 February 2015.

On conviction the Court imposes a Licence disqualification ranging from a minimum of 6 months to a maximum of 9 months. This is followed by an Interlock period of 24 months.

Interlocks are electronic breath testing devices linked to a vehicle’s ignition system. It prevents the vehicle from starting if any alcohol is detected (zero tolerance).

The driver pays all the installation & leasing costs for the device. This can run into thousands of dollars.

The aim of the Program is to reduce road deaths & injuries.

More information can be obtained at http://www.rms.nsw.gov.au/…/drug-alc…/interlock-program.html

GUIDE TO SENTENCING IN THE LOCAL COURT

All Court proceedings for criminal offences start with Police issuing a Court Attendance Notice (CAN).

An Accused should be given information (particulars) about the alleged offence to decide whether to plead guilty or to defend the matter.

If the Accused pleads guilty, the Prosecutor hands the Court a Facts Sheet describing the offence. The Facts Sheet must be checked for accuracy by the Accused or their Solicitor as the Court hands down its Sentence based on its contents.

The Prosecutor also hands up a record of any previous criminal convictions. In traffic related matters the Accused’s traffic history is also handed up.

The Solicitor then puts forward any character references & expert reports & addresses the Court to mitigage (lessen) the penalty. For example, the Solicitor may explain the hardship that will be caused to an Accused by the loss of their Licence.

3 MUST KNOWS OF BLOOD ALCOHOL LIMITS

NSW has 3 blood alcohol limits:-

  • Zero applies to all learner drivers, all Provisional 1 drivers & all Provisional 2 drivers.
  • 0.02 applies to drivers of vehicles of ‘gross vehicle mass’ greater than 13.9 tonnes, drivers of vehicles carrying dangerous goods & drivers of public vehicles such as taxi or bus drivers.
  • 0.05 applies to all other licences not subject to a 0.02 or zero limit.

NB Breath testing devices in pubs & clubs cannot be relied upon in Court. Only Police testing devices are considered accurate.

WHAT IS THE EFFECT OF DIVORCE?

Divorce breaks the legal bonds of marriage between a couple.

It does NOT deal with matters such as where the children will live, maintenance & the division of property. These are separate issues.

The only grounds for divorce is “irretrievable breakdown of the marriage”. The Court will not consider accusations of fault, such as having an affair.

The breakdown is considered to have occured when the couple have lived separately & apart for at least 12 months.

3 COMMON MISCONCEPTIONS ABOUT PROPERTY ENTITLEMENTS

  1. 1. There is an automatic 50-50 split after a marriage ends.
    Answer: No. The Court considers the contribution of each partner towards purchasing & improving assets as well as the needs of the partners, when deciding the percentage split.
  2. 2. If I leave I’ll lose my rights.
    Answer: No. Each partner during a marriage earns a share of the property & does not lose it if it is no longer possible to remain in the house eg for safety reasons.
  3. 3. I owned it before we got married so it’s mine.
    Answer: This depends on the length of the relationship. In a marriage that has lasted for, say, less than 5 years the original owner is more likely to keep that asset. The longer the marriage the less important pre-marriage ownership is.

HOW THE LOCAL COURT WORKS

The most common criminal charges “summary offences” are heard by a Magistrate in a Local Court. The nearest Local Courts are located at Mudgee, Gulgong, Rylstone & Dunedoo.

The case for the Police is presented by a Police Prosecutor or a Director of Public Prosecutions (DPP) Solicitor.

Accused persons are usually represented by a private Solicitor or a Legal Aid duty Solicitor. Some accused persons represent themselves.

If the accused is in custody he/she sits in a special secure area known as “the dock”.

The proceedings are recorded on audio tape. They are open to the public unless a person under 18 is involved in which case the Local Court is closed & the Children’s Court is opened.

HOW DO COURTS DEAL WITH MENTAL ILLNESS?

Normally the law requires a person to either plead guilty or not guilty to a charge.

A person can also apply to have a charge dismissed if there is evidence that he/she is:

  • developmentally disabled o
  • suffering from a mental illness or
  • suffering from a mental condition for which treatment is available.
    • Such applications have to be supported by an expert Psychiatrists Report.
    • Dismissals usually require the person to stick to a Treatment Plan.
    • •The person can be penalised by the Court for not following the Plan.

Types of Prison Sentences

Local Court Magistrates can impose up to 2 years imprisonment.

The Court can specify that part of the Sentence can be served in the community, on parole.

For example a 12 month Sentence can have a 9 month non-parole period (in jail) with 3 months on parole.

As a last resort the Court can impose a Sentence, say 12 months, and then suspend the whole of the Sentence on condition that the offender enter a Section 12 Bond to be of good behaviour.

If the Section 12 Bond is breached the Court can order the Sentence to be served by full time jail.

Buying a Strata Unit

One way of owning property is to buy a unit.

Each unit is called a lot in a strata plan. The lot has its own separate title.

An executive committee representing the owners corporation (made up of all unit owners) is set up to manage the common affairs of the lot owners e.g. caring for the building and the common areas such as stairways and pathways.

Owners contribute to (A) a sinking fund to meet the costs of painting and major repairs and (B) an administrative fund to meet ongoing costs such as insurance and cleaning.

Units have by-laws which place restrictions on the behaviour of residents, for instance not allowing them to keep pets.

Before buying a unit, check the executive committees minutes to avoid any surprises.

At what age can children decide where they live?

There is no minimum age for a child to be able to express their view about where they want to live in a parenting dispute.

The Family Court decides how much weight it gives to a child’s view based on the child’s maturity and understanding and whether or not the child has been influenced.

For example, if a 9 year old boy shows high levels of maturity and understanding the Court may place great weight on his views.

If a 14 year old girl wants to live with her dad because he buys her presents, but mum has been the primary carer, a Court may assess her as being influenced by factors not in her best interests and give little weight to her wishes.

The child’s views are obtained through being interviewed by a Court consultant or a report writer. A family report is then prepared for the Court suggesting a parenting arrangement.

3 must knows about a house deposit

1. The Standard Form Contract for the Sale of Land refers to payment of a 10% deposit. For example, if the Sale price is $400,000.00 the deposit payable is $40,000.00.

2. This deposit can be negotiated with the seller to something less, say 5%. Using the above example, the deposit payable would be $20,000.00.

3. If the seller agrees, a Deposit Bond can be used. This means that no cash is required to secure the Purchase. The Deposit Bond works like a Bank Guarantee. The cost is usually around $500.00 to $600.00 and varies depending on the Purchase price. What this means is that you’re not having to pay $40,000.00 upfront to secure the Purchase. A Deposit Bond is ONLY issued to Purchasers who have sufficient funds (e.g. a Loan) to complete the Purchase, for example the $400,000.00.