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Can I be Charged for Drink-Driving if I am Sitting in a Stationary Vehicle?

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In Australia, the dangers of drink-driving are well known. We have almost all viewed and been exposed to the government funded Road Safety Commission television advertisements and educational campaigns. It is generally common knowledge amongst license holding Western Australian’s that driving with a blood-alcohol level of over 0.05% is illegal. However, not many people know that sitting in a stationary car and drinking alcohol, or being under the influence of alcohol, may also be against the law.

According to Section 63 of the Road Traffic Act 1974 (WA):

  • A person who drives or attempts to drive a motor vehicle-
    • While under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle; or
    • While under the influence of drugs to such an extent as to be incapable of having proper control of the vehicle; or
    • While under the influence of alcohol or drugs to such an extent as to be incapable of

          having proper control of the vehicle,

          commits an offence, and the offender may be arrested without a warrant.

In order to determine whether or not a person is under the influence of drugs or alcohol, Section 66 of the Road Traffic Act relevantly states that:

  • A police officer may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of his breath for a preliminary test in accordance with the directions of the police officer, and for the purposes of this subsection may require that person to wait at the place at which the first-mentioned requirement was made.

A person may therefore be charged with drink-driving if they are over the legal blood alcohol limit and they are:

  1. Driving a motor vehicle; or
  2. Attempting to put a motor vehicle into motion; or
  3. ‘In charge’ of a motor vehicle.

A person will be determined to be ‘in charge’ of a motor vehicle if they have the ability to exercise physical control over it. This is a broad definition which encompasses a range of situations, such as: sitting in an idling vehicle; sitting in a stationary vehicle while in possession of the keys; or even sleeping behind the wheel of a stationary vehicle.

Whether or not a person is determined to be ‘in charge’ of a vehicle will depend upon a combination of the following factors:

Location of the Person

The location of the person is a key factor in determining whether or not a person is ‘in charge’ of a motor vehicle. Put simply, the closer the person is to the ignition of the vehicle, the more likely they are to be determined to be ‘in charge’ of it.  For example, a person is sitting in the driver’s seat is, by nature, far more likely to be able to exercise physical control over the vehicle than a person who is sitting in the backseat.

Location of the Car

Another important factor in determining whether or not a person is ‘in charge’ of a motor vehicle is the location of the car. The location of the car will not only give police an indication of whether the person was driving before the offence occurred, but the extent to which putting the car into motion may have presented a danger to the public. For example, a person parked in their own driveway may present less of a concern to police than someone who is parked on the side of the freeway or on a major street in a busy area.

Location of the Keys

The location of the keys will also play an important role in determining whether or not a person is ‘in charge’ of a motor vehicle. Given that keys are required to start the engine of most motor vehicles, not having possession of them would indicate to police that a person is unlikely to be able to exercise physical control over the vehicle. The keys being located in a person’s bag, on the backseat of the vehicle or in the boot would also be more favourable than being found in the ignition, for example.

 Status of the Engine

Like the location of the keys, the status of the engine will play a critical role in whether or not a person is determined to be ‘in charge’ of a motor vehicle. For example, if the vehicle’s engine is running, a person is far more likely to be able to exercise physical control over the vehicle than if it had been turned off. However, the status of the engine may also be mitigated by other factors, such as the location of the driver and how alert they appear to be. For example, a person sleeping on the backseat of their car may be able to justify the engine running for the purposes of air conditioning while they sleep.

Level of Alertness

The final factor in determining whether or not a person is ‘in charge’ of a motor vehicle is how alert the person appears to be; or in other words, whether they are awake or asleep when found by police. A person who is found to be asleep would, from a logical perspective, be far less likely to be able to exercise physical control over the vehicle than someone who is awake. However, a person who is asleep is not automatically excluded from committing an offence and would still need to prove that they were not ‘in charge’ of the vehicle when they were found by police.

 

Even if a person satisfies each of these factors and is determined to be ‘in charge’ of a motor vehicle, they may still be able to contest this charge if they can sufficiently demonstrate that they did not intend to drive and/or were not in control of the motor vehicle. This may apply in situations where a passenger was drinking alcohol but did not have sufficient control over the vehicle, for example.

Drink driving offences of this nature are a complicated and niche area of law. Due to the complexity of the situation, the specific factual circumstances play a prominent role in any defence.

If the content of this article appears relevant to your circumstances, or if you require assistance with another matter related to Traffic Law, please contact Carter Dickens Lawyers on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

Parenting arrangements and Christmas: don’t leave it too late!

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“It’s the most wonderful time of the year!” … except when it’s fraught with arguments because your ex won’t agree to a Christmas parenting arrangement. Arguing about where the children will spend Christmas isn’t very festive. In light of the whirlwind of 2020, we all deserve a much more relaxing and joyful end to the year. For this reason, you should seek to make Christmas care arrangements well in advance so you can enjoy the lead up to the festive period without any unnecessary stress.

What can I do?

The Family Court’s deadline for applications to be heard before Christmas was 13 November 2020. If you haven’t already filed an application seeking orders for Christmas care arrangements, the Family Court will be unable to assist you this year. It’s time to ramp up your negotiation efforts.

If you’re on amicable terms with the other parent, you might be able to agree to a care arrangement on the basis of a few informal conversations. However, it’s not always that easy. Engaging the assistance of a lawyer to negotiate on your behalf is often an investment worth making.

If you still can’t agree, it’s not too late to attend mediation or an informal conference. Often the involvement of an experienced third party can help warring parents resolve parenting disputes, even if the short-term ones.

What should I propose?

Some options you might consider are as follows:

  • A common compromise on Christmas day is for children to spend their time with one parent in the morning and with the other parent from midday onwards. This allows for the children to spend equal time with each parent on the special day.
  • Often, parents agree to alternate the arrangement each year. That is, if the children spent Christmas morning with mum this year, they’ll spend Christmas morning with dad next year.
  • If the children can’t spend time physically with one parent (say, they’re currently abroad), spending half an hour on video-call might make their day.
  • Sometimes, one parent might have family traditions that the children participated in each year prior to separation. If the children look forward to this each year, it is likely in their best interests to ensure this annual tradition is not broken, even if it means one parent might have a little less time with them over Christmas.

Of course, what works for one family might not work for the next. You should obtain legal advice about the suitability of specific care arrangements in your circumstances. Our lawyers are well-versed in family law disputes, including those specific to the festive period.

What if I don’t get what I want?

Christmas is a time for family. There is nothing more festive than being woken up at 5am by your children bouncing on your bed and asking whether Santa has been, or falling asleep on the sofa watching Christmas movies with the kids. Parents disagreeing about care arrangements has the potential to ruin the “ideal” Christmas. When this issue rears its ugly head, there is only one thing to remember: the children’s best interests are the priority.

It isn’t about what the adults want. If you wanted to wake up with the children in the morning but your ex is insisting otherwise, be flexible and compromise. The earlier an agreement is reached, the longer you have to plan your time with the children to make sure it’s their best Christmas yet.

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.

I just want a divorce – but my ex won’t accept the paperwork

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You may be familiar with the line in police and legal dramas where documents are handed over saying, “you have been served.”

In a Family Court context, the first time documents are served in a particular matter must be by the default method of “Special Service” – this is service where you prove to the Court that the documents have been received by the other party, before the matter can proceed. 

Service of Court documents is an essential, if sometimes frustrating, part of the process of beginning Court proceedings. It is essential, because the Court must be confident that the other party to proceedings is aware that the Court proceedings exist, so they have an opportunity to respond. 

This is typically done by an “Affidavit of Service” and either an accompanying “Acknowledgement of Service” and “Affidavit Proving Signature,” or the Service Agent swearing that they positively identified the person, such as by photograph, before leaving the documents for them. So far so good – these are provided in the Family Court “Service Kit” with instructions. 

In an application for Divorce, for example, either person can apply for divorce, even if their spouse wants to stay married. The other person can’t refuse to be divorced – either person can end the marriage, but the objecting party might attempt to avoid service of the documents, to avoid getting divorced, or simply to be frustrating. 

This might be in the form of refusing to reply to emails, refusing to identify themselves or come to the door. Sometimes it involves barricading themselves in their home, behind high fences.

This calls for what is known as “Substituted Service,” or “Dispensing with Service” 

 

Substituted Service 

In the Family Court context, this is where an application for substituted service comes in. If a person won’t accept service, you can apply to the Court to ask that service via an alternate method be “deemed” to be effective. 

The rules about service are located at Chapter 7 of the Family Law Rules. In particular, rule 7.18: 

 

FAMILY LAW RULES 2004 – RULE 7.18

Service with conditions or dispensing with service

 

(1)  A party who is unable to serve a document may apply, without notice, for an order:

(a)  to serve the document in another way; or

(b)  to dispense with service of the document, with or without conditions.

 

(2)  The factors the court may have regard to when considering an application under subrule (1) include:

(a)  the proposed method of bringing the document to the attention of the person to be served;

(b)  whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;

(c)  whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;

(d)  the likely cost of service; and

(e)  the nature of the case.

 

(3)  If the court orders that service of a document is:

(a)  dispensed with unconditionally; or

(b)  dispensed with on a condition that is complied with;

the document is taken to have been served.

 

Note: An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).

 

The most common way to accomplish substituted service is via an email address. 

However, to do this, you must address the factors at Rule 7.18 (2) to the Court, via an accompanying affidavit statement. 

In an email example, this could potentially be demonstrated with the following evidence: 

  1. A statement regarding the email address of the other party 
  2. Other attempts at service or why other methods were not attempted, for example: 
    1. The cost of service – perhaps exorbitant to serve documents in another country and have an affidavit sworn in English
    2. Evidence of unsuccessful attempts at skip-tracing
    3. A statement that their address is unknown
  3. Evidence of historical use of the email address, that demonstrates that the person using the address is the relevant person
  4. Evidence of recent use of the email address, which will show the Court that emails sent recently will likely be seen by the recipient. 

 

If email is impossible, it might be time to consider alternative approaches; such as:

  • Newspaper advertisements; 
  • Private investigators; or even
  • Getting in contact via mutual acquaintances.

Ultimately, a decision regarding whether a particular method of substituted or dispensed service is at the discretion of the Court, so putting the best evidence before the Court to show that service has been affected is essential. 

If you would like assistance with a substituted service application, Carter Dickens Lawyers is experienced with these, and all manner of Family Court applications.

 

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.

‘My Ex has Control of all our Financial Assets!’ – Your Right to Partial Property Settlements during Financial Separations

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A financial separation is often a difficult and stressful process for both parties involved, particularly so where your ex-partner maintains control over joint assets or has a much higher earning capacity. Unfortunately, it is sometimes the case that one party to a financial separation maintains financial control over the other due to their higher earning capacity or control over joint assets. For example, this may be the result of one party withdrawing from the workforce during the relationship to take on the role of the primary carer of the parties’ children.

As the process of finalising financial settlements can often take months or even years to be resolved, it may be the case that the party with a lower earning capacity will face financial burdens and may require additional funds to support their daily living expenses, legal fees and/or educational costs. In these circumstances the burdened party may seek what is known as a ‘partial property settlement’; this is essentially an ‘advance’ of funds which can be paid before the final settlement is complete.

Partial property settlements can be ordered in these circumstances to counteract the inequity in the parties’ access to assets and/or financial resources during negotiations or proceedings. These settlements are recognised and accounted for in subsequent negotiations and proceedings as a distribution made in the otherwise burdened party’s favour.

 

What do I need in order to be successful in a partial property settlement?

The Family Court of Western Australia under sections 79 and 80 of the Family Law Act 1975 (Cth) has the discretion to make an interim property order when it is appropriate and in the interests of justice. The primary consideration for the Court when adjudicating these matters regards the current financial circumstances of the parties as opposed to the purpose for which the funds are sought.

An application for partial property settlement requires the applicant to satisfy the Court of the following elements:

  • A source for finance of the payment can be identified;
  • There is a party with the majority control of assets or relative financial strength;
  • The payment must not be more than the party will ultimately receive from the settlement;
  • There is a reasonable explanation on what the funds are for; and
  • It is ‘just and equitable’ and in the interest of justice to make the partial property settlement order.

It is noted that the Court does not make interim cost orders such as partial property settlements without a strong consideration to the circumstances of each party. Essentially, the Court will make this determination on the basis of the evidence that is before it with respect to the value of the asset pool, the initial contributions of the parties and the contributions of the parties throughout the marriage, but most importantly, if it considers it is just and equitable to do so.

An applicant must convince the Court on the evidence at hand that you will, without doubt, receive more in the financial settlement than you are asking for on this interim basis. This is to ensure the payment cannot cause injustice later on where the relationship assets have already been spent.

Where the Court makes this order, it is described as an ‘add-back’. That is, the funds which are distributed to a party via a partial settlement will be acknowledged and added back to the value of the asset pool available for distribution, but is recognised to have been distributed in one party’s favour already.

 

Is partial property settlement my only option?

Other orders can be sought to remedy the discrepancies in parties’ resources during family law proceedings. These include seeking a periodical or lump sum for spousal maintenance under ss72 and 74 of the Family Law Act or seeking a “dollar for dollar” order under s117(2) to cover the expense of legal fees.

 

How can I apply for a partial property settlement?

If you have not commenced proceedings but seek to have a partial property settlement, you can apply for this via interim Orders sought in your initiating documents before the Court. If proceedings have already commenced, a partial property settlement must be applied for via a Form 2, ‘Application in a Case’. These can be filed on the eCourts website after paying the relevant fee.

If the contents of this article appear relevant to your circumstances, or if you require any assistance with your family law matter, please contact our office 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.

I think it’s time you leave! – Your rights to ‘Exclusive Occupation’ of the Family Home

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Separating from a spouse or a significant other can be stressful at the best of times. Typically, issues arise where both parties refuse to give up their right to reside in the family home. This begs the question, who has the right to remain in the family home?

Ordinarily, one or both of the parties will agree to move out of the family home in a bid to move on and sever their ties to the relationship. However, in some circumstances both parties will refuse to leave the family home, which often results in a hostile living situation.

In these circumstances, an aggrieved party may apply to the Family Court of Western Australia for an exclusive occupation order. The Court may grant this order where they consider it ‘proper’ in the particular circumstances of that case. The power to make a “sole use and occupancy” order is by way of injunction. For married or de facto couples, these orders are made by reference to sections 114(1) and 114(2a) of the Family Law Act 1975 (Cth), respectively.

Where the matter involves children, the Court may grant one of the aforementioned injunctions to restrain a party from entering or remaining in the child’s place of residence if they deem this action necessary to protect and advance the welfare of the child. Essentially, the Court’s paramount duty will be to protect children from psychological stresses caused by friction between parents, and this is primarily encapsulated by the Court’s obligation to make orders that prioritise the best interests of the children.

 

Matters involving children:

 In the case VCM v KRM [2005] FMCAfam 108, a mother who resided with her husband and 3 children sought exclusive occupation of the family home. In making its decision to grant the exclusive occupation of the family home to the mother and the children, the Court had to determine whether this order would be in the children’s best interests.

The Court turned its mind to several circumstances, including but not limited to the fact that:

  • The parents often fought verbally;
  • The parents fought physically; and
  • The children were in the care of the mother.

In making this order, the Court essentially restrained the Father from occupying the family home as the circumstances of the case were such that the Court deemed it in the children’s interests that they reside solely with their mother at the family home.

 

Factors considered in making an Order for Exclusive Occupation:

 The Court will take into account a number of considerations when deciding whether a particular party should gain the right to solely occupy the family home.

The overarching consideration of the Court is as to the practicality of granting exclusive occupation, having regards to the realities of family life (Bassett v Bassett [1975] 1 ALL ER 513, 520)

The relevant factors outlined in recent case authority is as follows:

  1. Needs of children
  • If children are involved, then the needs of the children are a matter that is always at the forefront of the Court’s mind when making a decision. We note that it is common for the party who cares for the children to be provided exclusive occupation of the family home (In the Marriage of Gillie).

 

  1. Likely Hardship to the children or either party
  • The Court will also take into consideration the hardship that will be suffered by both parties from an emotional and financial perspective if exclusive occupation is not granted to them. If there are children involved, then their needs will be given paramount consideration.

 

  1. Practical effect on Family life
  • The practical effect of an order is a primary consideration of the Court. This factor is assessed with reference to the realities of family life should one party gain rights to exclusive occupation over the other (Basset v Basset).

 

  1. Means of the Parties
  • The Court will also consider the means and needs of the parties. This involves the Court turning its mind to the costs involved in moving homes and finding alternative accommodation. The Court will also consider whether or not the home subject to the order is used as an integral part of either of the parties’ business operations (Mafrica v Mafrica).

 

  1. Conduct of the Parties
  • Finally, the Court will take the conduct of the parties into consideration when deciding whether or not one party should be granted exclusive occupation over another. This relates to whether physical or verbal abuse has been directed to one party by the other.
  • This becomes a particularly relevant factor where the abuse is such that one party fears for their safety or the children’s. In these circumstances, the aggrieved party will often be successful in an application for the exclusive occupation of the property (In the Marriage of Davies).

 

The Court in Saveree & Elenton noted that the factors considered are non-exhaustive and each case must ultimately be determined on its facts. The Family Court will only make an order for exclusive occupation where it considers this action to be ‘just and fair’ in all of the circumstances.

 

If you require assistance with any of the matters discussed in this article, please do not hesitate to contact us today on (08) 9408 5212 for a free 15-minute consultation with one of our lawyers.

 

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.

“But I’m not the dad!” – Presumptions of Parentage in the Family Law Act

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A DNA test is typically the most reliable method of determining whether or not a man is the father of a child. However, under the Family Law Act 1975 there are a number of presumptions of parentage:

  • Marriage if a child is born to a woman who is married (s69P(1)) or is born within 44 weeks of a marriage ending by death or annulment (s69P(2)), the child is presumed to be a child of the woman and her husband. Also, is a child is born within 44 weeks after the end of cohabitation, but after the divorce of a man and woman, the child is presumed to theirs (s69P(3)).
  • Cohabitation If a child is born to a woman who has cohabited with a man during a period not earlier than 44 weeks and ending not less than 20 weeks before the birth, the child is presumed to be the child of the man.
  • Named on the Birth Certificate If a person’s name is entered as a parent on the child’s birth certificate under a law of the Commonwealth, or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be the parent of the child.
  • A Court’s finding If a court has made a finding that a person is a parent of the child, the person is presumed to be the parent of the child.
  • Declaration If a man has executed a legal document, such as a statutory declaration, acknowledging that he is the father of a child and the document has not been repealed or set aside, he will be presumed to be the father.

Where a presumption arises and is satisfied, this is often enough for the court to make a determination as to a parent’s requirement to pay child support.

 

Rebutting the presumption

These presumptions are rebuttable by proof on a balance of probabilities. This means the standard of proof is ‘more likely than not’, in comparison to the standard of proof ‘beyond a reasonable doubt’ in criminal cases.

The obvious mechanism for rebutting the presumption is a DNA test. The court is able to make orders for a paternity test on its own initiative or by one of the parties making an application. Failure to undertake a DNA test while claiming that you are the father of the child may allow the court to conclude that you are not the father.

 

An Interesting Case: Artificial Semination

In the recent case Masson v Parsons & Ors [2019] HCA 21, the High Court rule that a man who donated his sperm for the birth of a child through artificial semination is a parent of the child under the meaning of parent in the Family Law Act 1975.

The man took action when the mother of the child attempted to relocate to New Zealand with the child and her partner. The High Court overturned the Full Court of the Family Court’s finding that the man was not a parent of the child. It was said at [26]-[29] of the majority judgement that: “A court will not construe a term in a way which departs from its natural and ordinary meaning unless it is plain that parliament intended it to have a different meaning.”

Therefore, because the man is the biological father of the child and provided his genetic material for the purpose of fathering a child, he was held to be a parent for the purposes of the Family Law Act.

If you have concerns about whether or not you are the father of a child, Carter Dickens Lawyers can assist you. Contact us today on (08) 9408 5212 to speaker with a lawyer who can assist 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.

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