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1300 COMLAW (266 529)

02 4704 9991

Suite 11, 354-360 High Street, Penrith NSW 2750
PO Box 1835 PENRITH NSW 2751

Daniel

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Section 10 Dismissals

The Daily Telegraph this week ran an article about people who have been charged with various drink driving offences who receive Section 10 dismissals, saying “thousands of people are escaping convictions for drink driving every year”, blaming these statistics on a “legal loophole”.

Unfortunately, this article lacks any true understanding of the legal reasoning behind the concept of Section 10 dismissals and why they exist.

A Section 10 dismissal means that the Court acknowledges that the offence was committed, however in the discretion of the Magistrate decides not to record a conviction because that particular case may have had extenuating circumstances attached to it.

The attitude of the Daily Telegraph seems to be that every person who drinks and drives should be convicted and punished. This concept, similar to mandatory sentencing, has been tried and failed as it does not take into the account that every matter that comes before the Court has with it a unique set of factual circumstances.

Take for example, a person who has been driving for 20 years without a single offence on their record, who is a positive contributor to their community, and an otherwise upstanding citizen. Let’s say they consume two drinks at a bar and believe they are under the threshold to drive, but following a breath test are found to be in the low-range category for drink driving. Imagine further that this person works in a job that requires them to hold a license, and should they lose their license, they will also lose their job. Should this person be so severely punished for what was at worst an error in judgement?

People are not perfect and from time-to-time make mistakes that without the option for discretion on the part of the court system could result in a punishment that is severely disproportionate to the offence they committed.

Our legal system is designed to allow people who are convicted with a criminal offence the opportunity to explain their actions to ensure that more serious offenders are dealt with more harshly than less serious offenders. Section 10 of the Crimes (Sentencing Procedure) Act allows the Court to exercise some discretion in circumstances where members of society who make mistakes deserve a second chance. It can hardly be described as a “legal loophole” which has with it connotations of inadequacy or cheating the system.

For the most part, serious offences are dealt with by the courts in a serious manner. Unfortunately, some journalists latch on to statistical anomalies that do not tell the whole story or outliers that are the inevitable by-product of an imperfect system when reporting on legal matters.

If you have been charged with an offence by police, contact Complete Legal to discuss your options.

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Transferring Property Following the Breakdown of a Relationship

Are you married or in a de facto relationship that has broken down resulting in the need to transfer real estate from one party to another?

Unfortunately marriages and de facto relationships break down all the time. If following such a relationship breakdown a house that is jointly owned needs to be transferred from one party to another as a result of a property settlement, it is important that you have proper legal advice. Under Section 68 of the Duties Act 1997, a property transfer is exempt from stamp duty if the transfer is the result of the breakup of a marriage, de facto relationship or domestic relationship.

There are important technical requirements that need to be complied with to make sure there is no stamp duty on the transaction, which will save you thousands of dollars:

  1. If you are married you must have a Financial Agreement in place under the Family Law Act 1975 or some other form of written agreement evidencing the fact that the breakdown of your marriage is irretrievable and you have decided to split the matrimonial assets;
  2. If you are in a de facto relationship you must have a Financial Agreement in place under the Family Law Act 1975 or Court Orders such as Consent Orders. Only a family lawyer can prepare these for you;
  3. If you are in a domestic relationship you must have Court Orders in place dividing the assets of each party or a Termination Agreement in accordance with the Property (Relationships) Act 1984.

Similar rules apply in the context of transfers of property between married and de facto couples whereby you can obtain a stamp duty exemption if as a result of the transfer the property will be held by the couple as joint tenants or tenants in common and equal shares.

The most common context where this arises is where one party to the relationship already owns real estate before the relationship commences and later wishes to transfer share of the property to their partner.

If you need family law advice or property law advice, contact one of our lawyers today on (02) 4704 9991.

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Family Law Tips

We are excited to announce that the head of our family law team, previously based in Melbourne, has moved back to Sydney! This means that we now have a Sydney based family law lawyer operating out of our Head Office in Penrith.

You can contact us to make an appointment with our family law lawyer at any time on (02) 4704 9991, but in the meantime here are some tips to think about if you are going through a divorce or separation:

  1. Start collecting your financial documents as soon as possible, taking into account everything from savings to assets and superannuation so you can adequately inform your lawyer.
  2. Start to think about what arrangements regarding custody of children are to be made. If your relationship with your ex-partner is amicable and you can reach agreement, then this is always best.
  3. If you feel as though your safety or the safety of your children is at risk, get some advice from the police about a temporary Domestic Violence Protection Order.
  4. Conduct a review of things like your Will, Power of Attorney and the beneficiaries of any superannuation death benefit you have. Often it may be the case that your wishes have changed as your relationship has broken down.
  5. Keep a record of any conversations you have with your ex-partner by writing them down in a diary or notebook if you think you might need to refer to them later.

The most important thing for you to do if you are going through a break up is seek family law advice as soon as possible. Most lawyers can offer you a one-off consultation with them for a reasonable fee so that you can get some advice in relation to your position. It may be the case that your separation is amicable and you are in agreement with your ex-partner about most things – this doesn’t mean you shouldn’t get some family law advice so you are at least aware of your rights.

Our family law services include divorces, property settlements following separation, custody of children and general family law advice. If you would like to make an appointment to meet with our family law lawyer, please contact us by telephone or visit our website at www.completelaw.com.au for our email details.

We understand that any marriage breakdown is emotionally draining on everyone involved. We can help you ease that burden with expert legal advice.

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Negotiating the Terms of a Will

We spent a day this week at the Supreme Court of NSW securing an excellent settlement for three clients in relation to the contents of a deceased person’s Will.

For legal reasons we cannot name our clients, but here is the case study:

  • The deceased person died leaving four natural children and a defacto spouse. Three of his children were from his first marriage and were aged between 40 and 50 years. These three children were our clients.
  • The fourth child was the child of the deceased and his defacto spouse.
  • Under his Will, the deceased left his whole Estate to his defacto spouse, completely disinheriting his children.
  • We acted on behalf of three of his children to obtain a share of the Estate for them on the basis that the Will was not a fair distribution of the deceased’s Estate.
  • The fourth child also made a claim against the Estate, as well as two other plaintiffs who were dependent on the deceased during their lives.
  • All up, there were six plaintiffs all seeking a share from the Estate, and the defacto of the deceased person, who was also named as his Executor.
  • We were able to obtain approximately 25% of the Estate for our clients on the basis that the deceased should have left a share of his Estate to the children of his first marriage, not just his second wife.
  • Settlements were also reached in relation to the other three plaintiffs to ensure that legal costs did not get out of control, and that the beneficiaries of the Estate received their share without having to spend it all on lawyers.

If you have been completely left out of a Will, or if you have been included in a Will but do not believe that you have received your fair share, you may be entitled to more. Unfortunately, sometimes when people write their Wills they may be affected by illness, an emotional situation such as a family dispute, or could be influenced by other people which results in an unfair distribution of their estate.

There is no shame in seeking some advice about what you may or may not be entitled to. For an obligation free consultation please contact us today on (02) 4704 9991.

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Royal Commissions

Prime Minister Malcolm Turnbull has announced a Royal Commission into allegations of the abuse of minors held in detention. The announcement follows the broadcast of a program on ABC’s Four Corners depicting teenagers in a youth detention centre in the Northern Territory being mentally and physically abused, shackled to chairs, stripped naked, locked in isolation, and even subjected to tear gas.

As the national reels following these horrifying revelations, it is a disturbingly familiar feeling of shock and surprise. How could this type of thing be happening in a modern age right under our noses?

A similar furore surrounded the recent and ongoing Royal Commission into institutional responses to child sexual abuse, which in a large part focussed on Churches and abusive members of the clergy.

So what is a Royal Commission, and why has the Prime Minister taken this action?

A Royal Commission is similar to a Court case, but takes a form of a Public Inquiry whereby a Commissioner is appointed to thoroughly investigate and report on the issue at hand. For example, the child abuse Royal Commission set up in 2013 was armed with the task of investigating allegations of child sexual abuse in schools, Churches and other institutions, including organisations like the Salvation Army, YMCA NSW, Scouts Australia and other institutions.

A Royal Commission has the power to force a person to appear before the Commission at a hearing to give evidence or to produce documents, and the Commissioner and his or her legal representatives can question and examine such people like what would occur during cross examination in a Court case. The Commission can also issue search warrants via the AFP, and invite members of the public to give evidence of their experiences in relation to the issue in question.

Following the conclusion of the Commission, a report is provided to the government. Whilst the recommendations of the Commission are not necessarily binding, it is quite common that a government will enact most of these recommendations into law.

Such a Commission can also result in criminal charges being brought against parties who are found to have committed crimes such as child sexual abuse, or in the case of this most recent Royal Commission to come, physical and mental abuse of children in detention that may be outside the scope of the discipline allowed in such youth detention centres.

In summary, a Royal Commission is a means by which the government can publically shine the spotlight on every deep dark corner of an organisation, entity or people who may be involved in conduct that is contrary to the public interest.

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Selling Your House

As I mentioned in last week’s article, I have been on the open home circuit searching for a property to buy. Having looked at many properties and many Contracts over the past couple of months, here are five tips that people often forget when taking their property to market:

  1. Illegal/unapproved building work.
    Any solicitor who is acting for a purchaser will ask you about any work that you have completed that was not approved by Council. If you know you have done work that was not approved, disclose it in your Contract so a purchaser cannot complain about it.
  2. Be prepared for the pest and building report.
    When a buyer buys a property they take it as it is. This means that any negotiations as to the property’s condition happen before the cooling off period expires. The purchaser will get a pest and building report and it will reveal problems. You might consider conducting your own pest and building report so you are aware of what might come up and so you can rectify any issues before your property goes to market.
  3. Cleanliness.
    A seller is required to give a purchaser a property at settlement in the same or similar condition as it was when it was first inspected. Despite this I often deal with outraged purchasers who aren’t happy with the state of cleanliness of a property at settlement. To avoid any unnecessary delays at settlement, keep the lawns mowed and the house clean so your buyer has nothing to complain about.
  4. Utilise your agent.
    This isn’t so much a legal suggestion but an important one. Agents are critical in the sales process. They are in a unique position to be able to speak to both seller and buyer. Tell your agent you are happy to have a meet and greet with the buyer before settlement to provide them with any copies of any documents you have such as warranties for appliances and share with them any expert knowledge you have about the property for example how to work the air conditioning system or reset the codes for the alarm.

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House Hunting

I am house hunting at the moment and so have had the shoe on the other foot, so to speak, in experiencing what home buyers go through in the house hunting process.
Here are five quick tips based on my recent experience that can put you in a better position in relation to your property purchase:

  1. Remember you take a property as it is, in the same state it was in when you initially inspected it. This means you need to look carefully for any existing damage during your inspection and make a note of it.
  2. Make a mental note, or hand write a list of fixtures/inclusions at the property. This is so when you meet with your solicitor you can advise them if there is anything interesting that you wish to be left behind that might not appear on the contract, for example a water tank, a chandelier or portable heating/cooling.
  3. Conduct a second inspection during your cooling off period if you can. Open homes are busy and hectic. If you are the successful buyer, contact your agent to see if you can go through the property one more time during your cooling off period to make sure you didn’t miss anything and check that the appliances (e.g. oven) are working.
  4. Talk to your mortgage broker before you start going to open homes so you can make sure you know how long you need for your cooling off period to get your finance approved. Most agents will sign you up on a ten day cooling off period which is usually sufficient, but some prefer five days.
  5. Ask the agent to email you a copy of the Contract for the property. You will eventually take this to your lawyer for advice, but it is a good idea to flick through this Contract (in particular the Special Conditions) so you have an idea of what is in it and to see if there is anything that jumps out at you as being a problem.

Preparation is key for your own piece of mind. If you don’t buy property regularly, while it is a very exciting time, it is also a very stressful time. Know what to look for and understand the process before you hit the open home circuit.

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Brexit

WHAT ON EARTH IS BREXIT?

This week’s column blurs the line between economic and legal issues but is topical all the same.

Global media has been overtaken by the decision of the British people to exit the European Union (“EU”).

So what is the European Union?

The EU was established in 1957 as a 28 country conglomerate promoting a common economic area within Europe.
This meant that where each country had previously made its own laws in relation to immigration, trade and things like tariffs members of the EU formed a united front to allow citizens of member countries to travel and trade in other countries in the Union as they please.

So why did Britain want to exit the Union and what does this mean?

One of the main motivations for pro-Brexit campaigners is the increase in foreigners travelling to the UK to work. It has been argued that Britain’s foreign population has increased to such a point that foreign nationals have been obtaining employment at the expense of domestic citizens.

Further, as is the case with any partnership, you must take the good with the bad. This means that while there was an element of free trade within the European Union, this also means that each of the countries within the Union must weather global economic pressures as a collective. For example, a number of European countries have fallen into economic chaos in recent times (for example Greece) and some pro-Brexit campaigners resent the fact that countries like Britain are effectively roped in to the economic conditions created by other nations as a result of their membership of the Union.

Pundits argue that exiting the EU will have the following detrimental effects on Britain:

  1. People will not be able to travel as freely and Brits living abroad may need to return to England;
  2. Britain will no longer enjoy free/open trade with the rest of the European Union and this could lead to an increase in the price of imports and a decrease in demand for exports;
  3. Unknown impacts on foreign policy as Britain’s alliances with other nations need to be refreshed given that the EU as a block entered into agreements with other nations that may not now be available to Britain.

The referendum has resulted in the resignation of the British Prime Minister and dozens of members of Parliament on both sides. It is certainly a ‘watch this space’ moment as we wait to see what the impact on the rest of the world will be.

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Election Promises – Fact or Fiction

As the 2016 Federal election fast approaches the Prime Minister and the Leader of the Opposition are rolling out promises thick and fast across the country.

There have been a number of legal matters that have been of significant debate as part of the election campaign, such as the issue of same sex marriage. Turnbull wants to hold a plebiscite to determine the issue, while Shorten says he will seek to legalise it in his first 100 days of governing should he be elected.

Examples like this require changes to existing laws or the introduction of new laws to be able to become reality.

The truth is that no matter who is elected any changes to existing laws or introduction of new ones must pass through both houses of parliament in order to become a reality. This means that all of these election promises regardless of which leader is promising them are still at the mercy of the parliament post-election.

In Australia the introduction of a new law occurs as follows:

  1. A proposal law called a “bill” is introduced to the House of Representatives where it is debated;
  2. If a majority of the members of the House of Representatives agree with the law the bill is eventually passed meaning it is sent up to the Senate for review;
  3. The bill is introduced to the Senate and is then debated in a similar fashion as to what occurred in the House of Representatives;
  4. If a majority of the members of the Senate agree with the law the bill is then passed again after which it will receive Royal Assent by the Governor General and come in to full effect.

As you can see there are a number of difficult steps any new bill must overcome before it is actually enacted into the law.

Put simply, no matter who you vote for, many of their promises can only be put into effect if they obtain the necessary majority in the House of Represents and/or Senate after the election. This means that election day not only determines who will lead our country but also which of their election promises they will be able enact. Vote with care.

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Lawyers Cost

HOW TO CHOOSE THE RIGHT SOLICITOR BASED ON COST

Lawyers have a reputation for charging a lot for the work that they do.

To help alleviate some of these concerns this article is designed to outline some of the ways lawyers charge so that if you find yourself within a legal matter you can know what to expect.
There are typically four ways that lawyers charge for the work that they do:

  1. Time costing: This means that the solicitor will charge you a set rate for the time that they spend on your matter. This can include everything from consultations to drafting and responding to emails, letters, telephone calls, meetings and more.
  2. Fixed legal fees: Some solicitors will charge you a fixed legal fee for the work that they do for you plus disbursements. Disbursements are money that the solicitor must pay out to other people in your matter, for example if you are buying a house the costs of your pest and building report would be considered a disbursement. The legal fees component is the amount the lawyer receives for their own use.
  3. Fee for outcome: This is when a solicitor charges you a set fee to achieve a certain outcome for you. For example: a solicitor might charge you a set sum of money inclusive of all costs and GST to attend Court for you to enter a plea, or to complete a business transaction from start to finish for you. This means you know exactly how much money you need to pay up front and is similar to item 2 above.
  4. Contingency: This is also known as “No Win, No Fee”, whereby a lawyer will only charge you an agreed amount if your case is successful.

It is important that your solicitor is upfront and transparent with you about how they are going to charge. If they intend to charge you more that $750.00 for a legal matter they should provide you with a written Costs Agreement setting out how their fees are going to be charged so that you know from the start what you can expect when it comes time to pay your bill.