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The Law on Revenge Porn: Distributing Intimate Images

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With the progression of technology, we’ve all become accustomed to carrying a high functioning camera in our front pockets, accompanied by a photo gallery with snapshots of our entire lives. Often, there’s a photograph of a pretty sunset, or an apparently Instagram-worthy meal. Other times, there’s an intimate photograph, sent to or received by a romantic partner.

As the popularity of communicating electronically has increased, it’s become easier to maintain relationships. While absence makes the heart grow fonder, partners often keep the romance alive by sending one another intimate pictures. During the relationship, this feels harmless as the possibility of those pictures being shared with others is likely non-existent. Unfortunately, upon the breakdown of a relationship, this might become a more realistic concern. So, what happens when your intimate pictures still remain in your ex-partner’s front pocket?

Unfortunately, there’s no way to force an ex to delete pictures that you have sent to them during the relationship. However, pursuant to the Criminal Law Amendment (Intimate Images) Act 2018 (WA) (“the Amendment Act”), distributing or threatening to distribute intimate images without consent is a crime.

 

Distributing an intimate image

Pursuant to section 221BD of the Criminal Code Act 1913 (WA), a person who distributes an intimate image without consent can be sentenced to a maximum of 3 years imprisonment and a fine of $18,000. So, what exactly does “distributing an intimate image” mean?

An “intimate image” is any picture or video that shows:

  • the person’s genital or anal area, whether bare or covered by underwear;
  • in the case of a female person, transgender or intersex person identifying as female, the breasts of the person, whether bare or covered by underwear; or
  • the person engaged in a private act, which is defined as being in a state of undress, engaging in a sexual act, using the toilet, showering or bathing.

A person “distributes” an intimate image if they:

  • communicating, exhibiting, selling, sending, supplying, offering or transmitting the image to a third party; or
  • make the image available for access by electronic or other means, such as by posting it online.

In July 2019, the first person to be convicted of a crime under this section was sentenced to a 12 month intensive supervision order. After posting his ex-partner’s intimate photographs online, the offender was spared imprisonment because:

  1. he had mental difficulties at the time of the offences;
  2. he did not attempt to extort the victim; and
  3. he was genuinely remorseful.

 

Threatening to distribute an intimate image

In this era of social media, where images can be distributed to millions with the touch of a button and employers look to social media profiles to scope out prospective employees, a threat to distribute an intimate image is serious. These threats can leave parties anxious about whether it will eventuate and if it does, what the lasting impacts will be.

To combat this, the Amendment Act extends section 338C of the Criminal Code, which criminalises making threats to cause detriment another person, to include threatening to distribute an intimate image. A person is guilty of a “threat” offence if they make a statement or convey information which indicates that they intend to distribute an intimate image.

It is notoriously difficult to establish someone’s intention, which is why you should seek legal advice about whether a threat has actually been made.

 

How does this help me feel safe?

While these penalties punish the offender, they offer minimal help to reduce the anxiety of the victim when the images are still circulating and threaten to impact future employment, social lives and general wellbeing. To tackle this issue, the Court is able to order the offender to remove, retract, recover, delete, destroy or forfeit that intimate image, within a specified period of time. Failing to take reasonable steps to comply with the Court Order can result in sentences of up to 12-months imprisonment and a fine of $12,000.

In order to remove the image/s from the deepest depths of the web, the Commonwealth eSafety Commissioner can order removal of an intimate image from social media, the internet, or any other electronic service if it was posted without consent. The penalty for failing to comply with a removal notice is a fine of up to $105,000 for an individual and up to $525,000 for a corporation, so there is a high likelihood of compliance.

 

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

When Are Family Property Orders Really Final? Challenging an Order

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Most clients want complete certainty and a ‘final deal so I can move on with my life’ when it comes to resolving the matter, especially when it comes to finalising financial separation matters.

Under Section 81 of the Family Law Act 1975 (Cth) (‘the Act’), the Court has a duty to make orders that as far as practicable, will “finally determine the financial relationships”. This is commonly known as the “clean break” principle, and it is an attempt by the Court to ensure that the parties are no longer financially reliant on each other and to attempt to stop any further litigation between them with regard to financial matters.

There’s always a risk though that the ‘final’ agreement isn’t the right agreement. What if, for example, there’s a change of circumstances and you cannot comply with the orders? Or you find out your ex had hidden assets? Or trying to comply with the orders is going to cause you significant financial hardship? In these situations, having orders as “final” may be problematic. With this in mind, Section 79A of the Act gives the Court the power, in their discretion, to potentially ‘set aside’ or vary financial orders.

Note that Section 79A only applies to financial orders, NOT parenting orders.

 

What is Section 79A?

Section 79A provides the circumstances by which a Court may set aside or vary existing financial orders. The scope of this section is quite limited, a matter of changing your mind will not be enough to have an order set aside. There must be evidence of:

  • Miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
  • Where circumstances have arisen since the order was made whereby it is impracticable for the order to be carried out;
  • Where a person has defaulted in carrying out an obligation imposed upon him or her by the order;
  • Where, in exception circumstances, the applicant will suffer hardship if the court does not vary or set aside the order; or
  • Proceeds of crime order has been made covering property of the parties.

Section 79A applications can be made by any party affected by an order of the Court, and is usually done as a result of a disagreement, if both parties are affected and wish to change the orders they may also make an application to vary or set aside orders by agreement, also known as consent.

 

Will a Section 79A be Easy?

Section 79A matters are legal complex (both as an applicant or a respondent – we represent both). If you are considering making one of these applications, you should strongly consider seeking legal advice. At Carter Dickens Lawyers we have experience and knowledge with regard to Section 79A applications.

Contact our Office on (08) 9408 5212 to arrange an initial appointment to discuss the merits of your case with one of our lawyers.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

So They Got a VRO? What’s Next?

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This post should be read together with our Blog Post “Restraining Orders in Western Australia” which provides a detailed description of the different types of restraining orders available in Western Australia and the possible grounds for seeking each restraining order.

If someone has sought a restraining order against you and is successful, the Court will issue an Interim Violence Restraining Order stopping you from being able to contact the person protected.

We note that if there is an interim order in place, it is a criminal offence to breach the Order.

When you are served with the notice you have two options:

  1. You do nothing and risk having orders made final against you in your absence
  2. You file an objection with the Court within 21 days of being served by police, which will lead to the matter proceeding to further hearings and potentially a trial.

 

Why Does Having a Lawyer Help Me?

Just because someone has been granted an interim violence restraining order (“VRO”) or the matter has been listed for a hearing, does not mean that you cannot contest the application or having your defence heard on a final basis.

If you have a friend or family member contact the person protected on your behalf, this is still a breach of the VRO. Lawyers, however, are exempt from this, and are able to liaise with the person protected to try and negotiate a different outcome that both parties consent to. In the event an agreement cannot be reached, it is beneficial to have a lawyer represent you in your trial as we are able to effectively present your position and argue your case with the backing of experience and knowledge surrounding the requisite legislation.

There are three main courses of action available when it comes to negotiating VROs, depending on the nature of the accusations and relationship. These options are:

  1. Writing to the person protected and requesting they cancel their application on the grounds that the application is frivolous and vexatious and putting them on notice as to costs.
  2. Drafting and providing a Mutual Undertaking to the person protected to sign.
  3. Drafting and providing a Conduct Agreement Order to the person protected to sign.

In some circumstances it may be appropriate to consider a consent order.

 

What is a Mutual Undertaking?

A mutual undertaking is an agreement between the parties to act in a certain way and avoid certain behaviours (for example not going near the other party). If the undertaking is mutual, it means that both parties are agreeing to abide by the agreement.

An undertaking is not a court order and is not enforceable by police. Breaching an undertaking will not result in criminal charges, however it will make it easier for the party not breaching the undertaking to seek another VRO in the future (if appropriate).

Undertakings can be agreed to at any time by the parties and are filed with the Court once the agreement has been signed with both parties so that it is aware of how the parties have resolved the matter and to assist in the event of further proceedings.

 

What is a Conduct Agreement Order?

Conduct Agreement Orders are only used in Family Violence Restraining Orders (FVROs) and essentially occur when the person bound consents to the Orders being made against them but on a without admission basis. This means you are agreeing to have an Order against you that is legally enforceable and has criminal consequences if breached, however, there is no finding by a Court that you have perpetrated family violence against the person protected.

The Conduct Agreement Order can replace the FVRO meaning you could attempt to negotiate more lenient terms, for example in the event there are children of the relationship and you are wanting to be able to communicate with your children.

At Carter Dickens Lawyers we have experience in assisting parties in obtaining and responding to VRO’s. We have fixed fee billing options available when it comes to responding to VRO matters, whether it be attempting to settle the matter out of court or representing you in a trial.

Please contact us on (08) 9408 5212 where we can arrange a meeting with one of our Lawyers to discuss your legal options with regard to a VRO you have had taken out against you.

 

Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.

Co-Parenting after Separation? Welcome to the Apps of the 21st Century!

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Relationships break down for many reasons and unfortunately, it is not always on good terms. However, being able to amicably co-parent with your ex-partner is very important for children and family dynamic. Having potentially lost the stability of having a close family unit, it is important that children see their parents communicating and working towards advancing the children’s best interests.

Traditionally, co-parenting has been difficult and communication breakdowns are common. However, with the development of smartphones and new apps there are now several options to assist those endeavouring to co-parent in the 21st century.

 

What are co-parenting apps?

A co-parenting app is an application that you are able to download onto your phone or tablet which aims to provide easy communication regarding the well-being and needs of your children. They have in-built features such as calendars and schedules, as well as access to important medical information about the child/children. They may also have features that track shared expenses and payments, or reminders and alarms to help both parents keep up with the designated schedule.

 

What are the benefits of co-parenting apps?

Co-parenting apps seek to bring a sense of organisation and peace to what can be a very overwhelming and difficult process. Co-parenting involves a large number of considerations including schedules, appointments, expenses, exchange places/times, health concerns of the children, special occasions such as birthdays and holidays, and so much more.

Both parents being able to access all of this information in one place will bring more organisation and clarity to the co-parenting situation. Being able to coordinate both the big things, such as birthdays and sleeping arrangements, as well as the smaller things, such as school events and excursions, in one application may help to soften some of the difficulties of co-parenting.

Co-parenting apps may also be successful in minimising conflict that may arise if the parents were to privately text one another or speak through a third-party. By encouraging parents to resolve smaller issues regarding the children between themselves and through an app, there may be less disagreement and less interactions with the court. This is also likely to have a flow-on effect and positively impact the psychological well-being of the child.

 

Examples of co-parenting apps

SharedCare

This app contains features such as a shared calendar, care arrangements (including requests to swap days), an expenses recorder (including reimbursement requests), and a group news feed where other carers including grandparents, nannies and aunts and uncles can keep updated on important milestones and news.

 

Parentship

Parentship utilises features including custom calendaring, digital documents, reminders, and a smart profile that contains everything about the child in one place.

 

Cozi

Cozi is a free app with a hassle-free family calendar and other features such as being able to create to-do lists and even share recipes where children may have allergies or dietary requirements.

 

Our Family Wizard
A popular app used globally with a great deal of options and functions, designed from the ground up for difficult situations in which the Family Court is involved. This app can also give children a controlled level of access to information, as well as third parties and legal practitioners, where relevant.

 

We note that this is just a small sample of the various applications on offer.

 

Are there any concerns?

Some co-parenting apps may require a small payment or a subscription fee. Also, co-parenting apps will only be successful if the parents are able to set aside their personal conflicts in order to put the children’s interests at their very highest concern.  Co-parenting apps may not be appropriate in all cases.

Unfortunately, these apps will not resolve all disputes that may arise in parenting matters; however, they allow for effective communication and synchronised scheduling which aims to benefit the children in the long term. Our lawyers can advise whether a co-parenting app is the right fit for your matter.

If you have concerns regarding a Parenting Matter, please contact Carter Dickens Lawyers on (08) 9408 5212 and we will endeavour to provide you with comprehensive legal advice to assist in your matter.

 

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

 

Family Violence and Cross Examination

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Pursuant to new restrictions, personal cross-examination at trial may be banned in family law proceedings where there are allegations of family violence. The new protections apply to various different circumstances, and aim to provide further protection for victims of family violence by limiting the possibility of re-traumatisation.

 

What is cross examination?

During trial, cross examination is the process of asking a witness questions about their evidence. These questions can be probing, leading, aggressive and offensive. The opinions of a jury or judge are often changed if cross examination casts doubt on the witness. On the other hand, a credible witness may reinforce the substance of their original statements and enhance the judge’s or jury’s belief. Though the closing argument is often considered the deciding moment of a trial, effective cross-examination wins trials.

Cross examination can be a stressful event. Witnesses are often accused of lying and must defend their original evidence. It is a particularly stressful experience for a victim to be cross-examined by someone who has perpetrated violence against them.

Pursuant to section 102NA of the Family Law Act 1975 (Cth), perpetrators of family violence may be banned from personally cross examining their victim.

 

When can an order preventing personal cross examination be made?

Under section 102NA(1)(c), one party can be prevented from cross-examining the other party if there is an allegation of family violence and:

  • either party been convicted of, or charged with, a violent offence or a threat of violence against the other party;
  • a final family violence restraining order applies to both parties;
  • an injunction protects one party from the other party; or
  • the Court chooses in its discretion to make the order.

If any of the circumstances outlined in subsections (i) to (iii) apply, the Court will make an order preventing the perpetrator from personally cross-examining the witness.

However, it is often the case that subsections (i) to (iii) do not apply. In these circumstances, a party may ask the Court to make the order in its discretion, pursuant to subsection (iv).

In order to convince the Court to exercise its discretion, there must be significant evidence to convince the Court that, in the event that the perpetrator personally cross examines the other party, that party would be unable to provide full and honest evidence due to their fear.

The threshold of evidence required to convince the Court to exercise this discretion is very high because, if an order preventing personal cross examination is improperly made, it would significantly limit the other party’s right to a fair trial. When considering whether to exercise this discretion, the Court weighs the right of one party to be able to present the best evidence possible, with the other party’s rights as a self-represented litigant. As such, there is always the possibility that the application could be unsuccessful.

Due to the complexity of this section and the significant burden of proof, particularly if you intend to rely upon the Court’s discretion, it is important to consult a lawyer about the significant evidence required for a section 102NA order, and the application’s likelihood of success in your particular circumstances.

 

What happens if a section 102NA order is made?

In the event that the application is successful, the perpetrating party would be unable to personally cross-examine the other party and their witnesses. In such circumstances, that party could engage a private lawyer to act on their behalf at trial. Alternatively, they could seek the assistance of a Legal Aid lawyer, pursuant to the Commonwealth’s Family Violence and Cross Examination of Parties Scheme. Under this scheme, a Legal Aid lawyer could be allocated to conduct cross examination on behalf of the party who is unable to conduct cross examination personally. While qualification for this scheme is not means or merits-tested, the limited party might not be required to financially contribute to this representation, depending upon their financial circumstances.

While there are obvious disadvantages to a perpetrator of family violence being able to personally cross-examine their victim, there are also some compelling advantages that would be beneficial at trial, particularly from a strategic perspective. As these advantages vary from case to case, it is important to seek legal advice specific to your circumstances to help you decide whether a section 102NA order would be advantageous to you.

At Carter Dickens Lawyers, our lawyers have significant experience in family law matters with issues of family and domestic violence. In the event that you require further information about the issues discussed in this article, please do not hesitate to contact our office.

 

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Did you need to speed? Facing Traffic Offences with a Lawyer

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Most people choose to deal with traffic offences by copping the fine and the demerit points, even if they know it was unfair, there were extenuating circumstances or they are completely innocent. 

In many cases that’s the easier, cheaper option than trying to fight it. 

However, some charges can lead to a driver’s license disqualification, which can destroy your ability to do your job. 

For example, the following offences lead to license disqualification in WA, for various periods of time, if you are found, or plead, guilty tothe following charges: 

  • Reckless Driving will always lead to a license disqualification , and 
  • Dangerous Driving – If you already have dangerous driving offences on your record, you will always get a license disqualification . 
  • Drink Driving offences, other than first offences under a certain percentage blood alcohol, also have mandatory disqualification periods.  

This means that if you plead guilty, even if you have the best reason in the world, the Court must disqualify your license. The Judge or Magistrate doesn’t have a choice in the matter. 

Sometimes the best choice is to put your hand up. Sometimes your best choice is to fight. 

Unfortunately, justice often isn’t free – so it can come down to a financial decision. Even at this stage, a lawyer can help you decide whether it’s worth fighting. 

 

Why plead not guilty? 

Sometimes the best choice is to fight the charges. A lawyer can be of great assistance to you in these circumstances. For example: 

  1. When there isn’t enough evidence to show that it was you who committed the offence, or there isn’t enough evidence to show you were drunk at the time of the offence, a lawyer can help you negotiate with police to get the charges dropped, also known as “discontinued”.  
  2. A lawyer can help you negotiate with police to ‘downgrade’ the charges, so the penalties faced are less serious. 
  3. A lawyer can put forward another defence, such as an emergency defence, to show why your driving was in exceptional circumstances, which need to be taken into account. 

One of the reasons lawyers can help with this that you may not know, is that when Police take someone to trial without a lawyer, and they lose, there are no consequences for the police.

However – when they take someone to trial who has a lawyer, that lawyer can ask for their legal costs to be paid by police, which the police then have to pay – and you get a whole or partial refund. 

When the police know you’ve got a lawyer representing you, they know they’d better have a very convincing case to show the court, or they’ll be on the hook for your legal costs. This makes them more careful about whether they proceed to trial.  

Your lawyer can get the charges dropped at this point if they can show the police the holes in their case. They can also ‘bargain’ with police, for example suggesting that they drop a more serious offence, you would be willing to plea to a lesser offence. 

As a result, when you enter a plea of not guilty – the matter often still won’t need to go to trial. In fact – very few matters do go to trial. 

Of course, if you do go to trial, it goes without saying that your lawyer can be of assistance. 

 

Pleading Guilty 

If you decide to plead guilty, you have the opportunity to say something in your defence. This is called a “Plea in Mitigation.” This explains the circumstances in your favour that the court should take into account – and why they ought to apply the minimum penalty, rather than a higher one. 

A lawyer can help prepare, obtain documents which support your side, and present a plea in mitigation on your behalf, so you don’t have to speak. They can help put your best case forward, to obtain the best possible result by putting your actions in perspective. 

Even if the Court imposes a driver’s license disqualification, you still have options. If you need a driver’s license for work or to care for your family, you can apply for an Extraordinary Driver’s License.  

 

Are you eligible for an Extraordinary Driver’s License ? 

If you get a driver’s license disqualification, you can apply to get an Extraordinary Driver’s License (EDL). The grounds for applying for an EDL are primarily based around the need for a driver’s license to earn an income and look after your family. 

There is always a waiting period for at least a 21 day, often longer, before you can apply, and it will always take at least two weeks for an Application to be heard, so it will always take at least a month before you can get an EDL, after your license is disqualified. The waiting time before you can apply is longer especially for drink driving and drug driving offences, see s28 of the Road Traffic (Authorisation to Drive) Act 2008 (WA); 

Finally, when you apply, you’re not guaranteed to get an extraordinary driver’s license. A lawyer can assist you in preparing your application to give you the best chance in being awarded an EDL.

 

Please contact our Office today on (08) 9408 5212 to discuss your traffic offences.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

Criminal Injuries Compensation

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What is Criminal Injuries Compensation?

If you have been a victim of a criminal act and suffered financial loss, physical and/or psychological harm as a result, you may be entitled to compensation under the Criminal Injuries Compensation Act 2003 (WA).

Unlike other compensation schemes for victims, Criminal Injuries Compensation (CIC) does not require the offender to be identified, charged or convicted for you to receive compensation. You are required however to have reported the incident to police and been cooperative in their investigations as a minimum standard.

In the event that a close relative of yours is killed as a result of a criminal act, you may still be able to seek compensation through CIC, it is more limited than claiming for an injury you suffered personally and generally relates to covering funeral expenses, or loss of financial support on behalf of the deceased’s dependants.

If the criminal act perpetrated against you occurred after 1 January 2004, the maximum threshold for compensation of a single criminal act is $75,000, if there are multiple criminal acts perpetrated by the same offender this maximum threshold increases to $150,000.

What do you need to qualify?

In order to potentially qualify for a CIC claim you must:

  • Have been a victim of a crime in WA and were injured or experienced financial loss resulting from such an injury.
  • Been the close relative of someone killed as a result of a crime in WA, and experienced financial loss as a result.

The type of injury or loss you have suffered is:

  • Bodily Harm
  • Mental and Nervous Shock (Psychological Harm)
  • Pregnancy resulting from a crime in WA.
  • Pain and Suffering
  • Loss of Enjoyment of Life
  • Loss of Earnings
  • Medical Expenses you have or will incur.
  • Other Expenses (E.g. Travel for medical treatment and damage to personal items.)

You may not be eligible for compensation if:

  • You did not report the offence to the police within a reasonable amount of time (unless you can prove there was a good reason for the delay).
  • You did not help the police with their enquires concerning arresting or prosecuting the person who committed the crime.
  • You already claimed compensation for the injury or losses suffered from the injury from another source (e.g. Medical Insurance).
  • The injury you received was from a car crash.
  • You were not the primary victim of the crime.
  • The assessor believes that your behaviour contributed to your injury.

An application must be lodged within 3 years from the date of the offence or the date of the last offence, in circumstances where you have been the victim in a string of offences. If the offence happened more than 3 years ago, your application may still be accepted but you must include in your application a written request for an extension of time.

 

Why Should I Engage Carter Dickens Lawyers for my CIC Claim?

Criminal Injuries Compensation claims can be a long drawn out process and complex process. It can be highly beneficial to engage a lawyer with experience in making such applications, not only would this reduce the pressure on you to recount your experiences and act within legislated timeframes.

We will assist you throughout the entirety of the process and completing the necessary paperwork. If your matter is directed to a formal hearing we may be able to represent you at this hearing and we may be able to provide you with advice in the event of an appeal.

Please contact our offices to arrange a no obligation one-off meeting to discuss a potential claim and whether or not making a claim would be advisable.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation

Pressure to Settle in Parenting Matters & Without Prejudice Offers

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Parenting disputes affect people deeply. When accusations are being thrown around, and in particular when children are being withheld from a parent, tensions can run high. A person can feel a strong desire to agree to parenting arrangements they feel are unfair because they want it to be over, or want their children returned.

 During negotiations, you might receive a proposed “Minute of Consent Orders” for parenting arrangements that you don’t agree with, but you may feel tempted to sign them to see your kids again. In most cases, each parent will believe that what they are proposing is necessary for the best interests of the children, even though their beliefs differ. 

 In some circumstances however, a party might choose to withhold children as a strategy to get the other party to sign their preferred parenting orders – rather than because they believe they need to withhold the children to keep the children safe. This is rare, but does happen. 

 However, communications exchanging proposals to settle are typically ‘Without Prejudice’, which means that the proposed arrangements cannot be adduced in evidence should your dispute end up before a judge.  If you think someone is trying to pressure you to agree in a way that demonstrates their bad faith, you may want to show this to the Court, to have the Court to take this into account.

 However, the general rule for ‘Without Prejudice’ communications is that they cannot be shown to the Court.

 

Without Prejudice Communications

 The term ‘Without Prejudice’ invokes a particular kind of legal privilege, which is specifically permitted for negotiating settlements. The privilege is that that communication cannot be relied on by the other party in Court proceedings. For example, it cannot be introduced as evidence claiming, for example, to demonstrate the weakness of that party’s case.

 Providing the other party’s without prejudice offers and communication to the Court is typically disallowed, and if they are filed by the other party, they will be struck out by the Court in line with this privilege, and for good reason. This is because the ability to engage in ‘Without Prejudice’ communications is generally to the advantage of both parties, as it allows them to make offers to settle a matter without fear of having the offer brought up later.

 This applies in the Family Court, it can be found in the Family Law Rules at 10.2:

 FAMILY LAW RULES 2004 – RULE 10.02 OPEN AND “WITHOUT PREJUDICE” OFFER

 10.02(1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer.

 10.02(2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:

 (a) in any document filed; or

 (b) at a hearing or trial.

 The rule against providing without prejudice communications to the Court is a part of a broader set of rules regarding evidence.

 

Family Court and the Rules of Evidence

 The Family Court has a number of notable exceptions to the normal rules of Evidence. The ability to quote children’s speech, when they are not giving evidence themselves, which would normally be a breach of the Rule of Evidence against Hearsay, is the most well-known example, located at 69ZV of the Family Law Act (“the Act”).

 Family Law however can involve a number of other exceptions to standard rules of evidence. More generally, 69ZT “Rules of evidence not to apply unless court decides,” specifies the parts of the Evidence Act (Cth), which codifies the principles of evidence, which the Court may decide whether or not to apply in child-related proceedings as per the considerations in that section, and what weight to give them. This includes documents and other evidence including demonstrations, experiments and inspections, and evidence that is hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character.

 The important principle to keep in mind is that in parenting matters, the primary consideration is the best interests of the children. What is in the best interests of the children is determined by consideration of primary and secondary factors at s60CC of the Family Law Act.

 One interesting example of a departure from normal legal principles regards ‘Without Prejudice’ communication. Typically, if a party tries to put ‘Without Prejudice’ communication before the Court as evidence, it will be struck out and not considered by the Court.

 

Can Without Prejudice Communications ever be Submitted to the Court?

 However, there are exceptions, generally and in the Family Law specific to the normal ‘Without Prejudice’ principles.

 Sometimes, without prejudice communications will include content which go towards demonstrating a fact of sufficient significance that the Court may choose to allow their entry into evidence.

In Parenting matters, the best interests of the children are the primary consideration, as per s60B and s60CA. As such, if the other party provides ‘Without Prejudice’ communications, such as an offer that provides for orders which implicitly contradicts other assertions that have been made in Court documents, the court may be willing to enter the ‘Without Prejudice’ communications into evidence.

 This has been discussed in the WA case S and K [2007] FCWA 17, where Her Honour Justice Crisford identifies, at 28-32:

 28 It goes without saying that it is important to preserve confidentiality in relation to offers. Full and frank negotiation needs to take place between parties so that matters may be resolved without the need for further court action. Often in children’s matters, the very avoidance of litigation can itself be in the best interests of the children. Whilst children are not parties to the proceedings, they are well and truly the subject of the proceedings. The principles governing these sorts of proceedings are very different to those relating to property matters.

 29 However, whilst it is important for negotiation that confidentially be preserved, especially in light of the rules of the Court, I am of the view that the preservation of confidentiality is not absolute. One of the main purposes of the Rules is that cases are resolved in a just manner. The Rules do not provide a complete code of the Court’s powers. Other powers are found in the provisions of various Acts, the Court’s inherent jurisdiction and the common law.

 30 Hutchings v Clarke may well stand for the proposition that the issue of legal professional privilege does not operate to exclude evidence if in the discretion of the trial Judge such evidence is required to be put before the Court in order to preserve the best interests of the child.

 31 There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.

 32 The Court should not be precluded from obtaining information to ensure that the principle is met, especially in cases of such naked acrimony as this.

 

As such, if you have been sent ‘Without Prejudice’ communications in a Family Law matter, where untrue claims are made or strict orders are being sought when the other party does not actually require those Orders, the Court may be willing to accept that correspondence of an offer to settle into evidence. 

Such a circumstance might be withholding children except when supervised by a professional supervision agency; while simultaneously making an offer that involves children spending time without any external supervision. 

However, other avenues for adducing the same evidence ought to be pursued first. The Court will be very hesitant to override the general rule regarding ‘Without Prejudice’ offers, as ‘Without Prejudice’ offers are a very significant element which benefit the ability to conduct settlement negotiations, and this privilege will not be dismissed lightly.

Indeed, settling a parenting matter by agreement may, in many cases, be very much in the best interests of the child, as ongoing proceedings may very well put children under stress, increase hostility between parents, and potentially require the children to be involved in proceedings to some degree.

As such; the possibility of successful negotiations, and thus ability to engage in these negotiations ‘Without Prejudice’, towards reaching parenting orders both parties may not like but are prepared to accept may well be a better outcome than the outcome of ongoing proceedings even should the party’s preferred orders be made and their concerns legitimate, given the impact on the children of ongoing proceedings. 

If you need advice about your family court negotiations, please contact us on (08) 9408 5212 for a free telephone consultation. 

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific case in question.

The Pitfalls of Homemade Wills

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Homemade Wills are a tempting proposition for those interested in reducing the costs associated with obtaining legal services. Whilst on the surface these Homemade Wills kits appear be straightforward and binding, this is not always the case. It is important to ensure that your Will is prepared in the proper legal manner so that your wishes are unambiguous, and your estate may be correctly dealt with at the time of your passing.

The common issues surrounding Homemade Wills have been exemplified in the Supreme Court of Western Australia’s recent case James Edward Donnelly as executor of the estate of Sarah Shulman v Donnelly 2020 WASC 254. In this decision, Master Sanderson at [13] heavily criticised the ambiguity of the Homemade Will in question, stating:

“Although it is a valid will because it complies with the provisions of the Wills Act apart from appointing the plaintiff as executor, it has no content. It makes no disposition. It is meaningless.”

In this case, despite there being every reason to believe that the deceased intended to leave her entire estate to the first defendant, even the most benign interpretation of the Homemade Will offered no benefit to the first defendant. Apart from being mentioned as executor of the Will, the first defendant was not mentioned at all – in fact, no-one was.

Master Sanderson suggests in this judgement that there is no question of the Will being ambiguous, as it simply remained silent on who was to receive the benefit (the beneficiaries of the Will). Through proper exercise of the construction of the Will, it was determined by Master Sanderson that, on the facts, he was satisfied that the deceased intended to leave her estate to the first defendant.

Although in this case the exercise of discretion fell in the favour of the defendant, this acts as a reminder as to the pitfalls of drafting Homemade Wills.

 

How do the Courts Construct an Ambiguous Wills?

You may be wondering what process is undertaken to properly “construct” or “read” an ambiguous will by the Courts? Construction of a Will is a two-step process:

  1. Firstly, the Will is to be read on its own without regard to any evidence. If this does not lead to an interpretation of the Will then an attempt must be made to deduce the intentions of the testator.
  2. If the intentions of the testator cannot be readily discerned for any reason, then the court should proceed to construe the Will with the assistance of cannons of construction. These cannons often allow a judicial officer to review extrinsic materials, as per section 28A of the Wills Act 1970 (WA), to better consider the intentions of the testator at the time of drafting the Will.

 

Common issues with Homemade Wills

Although use of these Homemade Wills kits may provide you a legally binding Will, it may not be drafted in such a way as to achieve what you truly intended. Common issues with Homemade Wills include the following:

  1. Failure to properly date the Will;
  2. Leaving the wrong assets or assets you are not entitled to distribute;
  3. Misunderstanding legal definitions;
  4. Losing the Will;
  5. Incorrectly witnessing documents;
  6. Unintended Tax Consequences;
  7. Appointing the wrong Executor;
  8. Ignoring potential and eligible beneficiaries; and
  9. Failing to provide for the guardianship of children.

 

Recent Judicial Commentary regarding Homemade Wills

Despite gaining popularity in recent years, Homemade Wills have been an enduring cause of concern within the Judicial system. Recent Western Australian examples which demonstrate this concern include the following:

Kossert v Ruggi as Executor of Will of Korps (No 2) [2012] WASC 191

Kenneth Martin J at [8] stated:

‘Sadly, as so many home-made wills seem to do because of a failure to receive proper legal advice, it throws up the question of [the deceased’s] failure to deal fully by his will with the one substantial asset he left, namely the house and land’

 

O’Brien, as Executor of Will of Hogan v Warburton [2012] WASC 82

EM Heenan J at [3] stated:

“ [the deceased’s] last will was prepared by him or at his direction apparently without any legal advice or assistance. Major difficulties have arisen in determining the proper construction of the testament and, in particular, whether or not it fails fully to dispose of the testator’s estate, so leaving a partial intestacy”

EM Heenan J at [58]:

“Obvious difficulties arise when parts of a will are ambiguous or, worse still, inconsistent. Such problems are often experienced in home-made wills such as this..”

 

Thomas v Pearman [2017] WASC 209

Master Sanderson at [1] criticised Homemade Wills, stating:

“The will and the codicil were home-made. They comprise 14 pages in all. They are a particularly egregious example of the folly of home-made wills.”

 

How can Carter Dickens Lawyers help?

Our expert lawyers are able to properly draft a will in the accepted legal manner, ensuring all of your wishes are to be fulfilled upon your passing. This will circumvent the ambiguous situations that often arise from Homemade Wills kits, and ensures that you can confidently have your Will executed as per your intentions.

At Carter Dickens Lawyers, we have the experience and knowledge to help you navigate this potentially complicated area of law. We understand the difficulties faced by families upon the death of a loved one, and we hope to ease this process by ensuring your final wishes are understood and binding.

Our Wills and Estates matters are provided on a fixed fee basis. Wills and Estates matters we may assist you with include the following:

  • Single Wills
  • Couples Wills
  • Enduring Power of Attorney (EPA)
  • Enduring Power of Guardianship (EPG)
  • Advanced Medical Directive
  • Probate Application
  • Letters of Administration (Deceased had no Will)

If you would like to discuss your Wills and Estates related matter, please contact Carter Dickens Lawyers on (08) 9408 5212.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

 

Challenging a Child Support Assessment

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The initial stage of separating from your partner is often the most difficult phase, especially when there are children involved. The transition from sharing care to being the primary carer often leaves single parents struggling to make ends meet. Child support is designed to alleviate this stress.

A child support assessment is made using one of various formulas, with the appropriate formula being determined by your individual circumstances. However, no two families are the same. We each have different lives, different needs and different circumstances. For this reason, it is sometimes arguable that your unique circumstances justify departing from the usual formula.

The Court will consider making a departure from the ordinary formula when:

  • a ground for departure in section 117(2)(a) of the Child Support (Assessment) Act 1989 (‘the Act’) applies; and
  • it would be just and equitable or otherwise proper to make the order.

 

Step 1: Grounds for Departure

There are a number of grounds for departure outlined in section 117(2) of the Act. In summary, these grounds are as follows:

  • In the special circumstances of the case, the non-carer parent’s capacity to provide financial support is significantly reduced because of their duty to maintain themselves, another child or any other dependant person.
  • In the special circumstances of the case, the costs of maintaining the child are significantly affected:
    • because of high costs involved in enabling a parent to spend time with, or communicate with, the child;
    • because of special needs of the child;
    • because of high child care costs in relation to the child; or
    • because the child is being cared for, educated or trained in the manner that was expected by his or her parents.
  • In the special circumstances of the case, application of the formula would be unjust and inequitable because of the income, earning capacity, property and financial resources of either of the children or the parents.

The common denominator in all of the grounds is the phrase ‘in the special circumstances of the case’. So, what does this mean?

When discussing the meaning of this phrase, the Family Court in Gyselman & Gyselman (1992) 15 Fam LR 219 stated, “Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.”

There is no one definition of what exactly a ‘special circumstance’ is, and this is intentional. The term is broad and flexible enough to cover a wide variety of circumstances. That being said, the following are examples of circumstances which have been held by the Court to be ‘special’:

  • In L and L [2003] FMCAfam 223, the liable parent was ordered to contribute to private school fees for a child with special needs. The Court held that the ‘special circumstances’ in this case were the child’s need for medical care, which was not covered by medical insurance, and her need to be encouraged to attend school. As the child was already enrolled in a private school, the non-liable parent was ordered to contribute to the fees.
  • In Bassingthwaighte and Leane (1993) 16 Fam LR 918, the father was an airline pilot who owned a farm, which operated at a loss. While the father’s taxable income was significantly reduced, the actual income he received was not. The Court allowed a departure from the usual assessment, in that his income without the reductions for tax losses was considered for the purpose of the assessment.
  •  In Dwyer and McGuire (1993) 17 Fam LR 42, the father owned a number of farming properties with his family, several of which were in the father’s sole name. The properties were unencumbered and the farming business had little debt. The father’s substantial assets established a ground for departure, and the Court ordered that the assessment would take these assets into account.

Step 2: Just and Equitable

The Court may only make a particular departure order if it is satisfied that doing so would be just and equitable to the child and both parents. Here, the Court looks at the overarching circumstances, having regard to:

  • the nature and duty of a parent to maintain a child;
  • the proper needs of the children;
  • the income, earning capacity, property and financial resources of the child and each of the parents;
  • the commitments of each parent that are necessary to enable the parent to support themselves or any other child or dependant;
  • the direct and indirect costs incurred by the carer entitled to child support in providing that care; and
  • any hardship that would be caused to the child and the parents if the order was either made or refused.

 

How can a lawyer help?

A lawyer with experience will be able to provide you with the knowledge and assistance you need to determine the grounds of departure which likely apply, whether your circumstances are special, and what kinds of departure order(s) would be just and equitable in your circumstances.

Importantly, a lawyer can also help you gather the evidence you need to support your case through different processes, such as disclosure. This is where both sides to the proceedings have an obligation to provide to the other party all relevant documents and material in their possession.

At Carter Dickens Lawyer, we have the experience and knowledge to help you navigate this complicated area of law to ensure that you put the best case forward, so please do not hesitate to contact our office for more information.

Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific situation.

 

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Phone: (08) 9408 5212

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