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What if my child refuses to see the other parent?

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One of the most common issues parents face is defiant children. For separated parents, this issue may arise when handover is looming. So, what can you do when the kids are kicking, screaming and telling you that there’s absolutely no way they’re going to spend time with their other parent?

This issue was addressed in the matter of Cartland v Cartland [2014] (“Cartland”), by Judge Terry of the Federal Circuit Court. The father in this matter filed a contravention application against the mother because their two children, who were 11 and 12 years old, were not spending time with him in accordance with the parenting orders. The father gave evidence that the mother would bring the children to handover and sit silently in the car while the children told the father through the rolled down window that they would not spend time with him.  The mother would then drive the car home, taking the children with her.

When dealing with contravention applications of this nature, the Court is of the view that failing to handover the children pursuant to the orders is not considered a contravention if there is a ‘reasonable excuse’ for not doing so. When deciding whether you have a reasonable excuse, you should seek legal advice.

In Cartland, the mother argued that she complied with her obligations by attending handover and making the children available to the father, but she had a reasonable excuse for the visit not going ahead: the children did not want to go.

The Court disagreed; the mother had not discharged her obligations pursuant to the orders. Judge Terry was critical of the mother’s behaviour, finding that her passive behaviour taught the children that it was reasonable to refuse to spend time with the father. In order to comply with the handover order, the mother had an obligation to positively encourage to spend time with the father; “parents must make a reasonable effort and take positive steps to bring about a change in the attitude and wishes of the children”.

Importantly, each case is different. Many factors will be taken into account when determining what is reasonable in the circumstances, such as the children’s age, maturity and ability to make decisions for themselves; history of proceedings; and family violence. However, the following general guidance may prove helpful when navigating this issue:

  1. You must physically take your child to handover, pursuant to the relevant orders.
  1. If the children express to you or the other parent that they do not want to spend time with the other parent, you must take positive steps to change their attitude. For example, you could:
    1. before the visit, tell your child they will have a good time with the other parent; and
    2. after the visit, talk to your child about what they did with the other parent and raise positive talking points. For example, “you went to the beach with Dad? That’s great! Did you build a sandcastle?”.

After taking positive steps, you will hopefully notice an improvement in your child’s attitude. However, if this isn’t the case, you will at least have a stronger argument for a reasonable excuse.

Presumption of Guilt for DUI Charges

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The Road Traffic Act 1974 (WA) (the RTA) is the legislation that sets out the rules on how we share and use the road. Naturally, matters involving driving under the influence of alcohol fall under the purview of the RTA.

 In the State of Western Australia, an individual charged with a criminal offence is deemed innocent until proven guilty in a court of law. To be deemed guilty, it must be deemed beyond a reasonable doubt that an individual is guilty of a criminal offence. There does appear to be one exception to this rule however: charges relating to driving under the influence of alcohol.

Of particular concern are the evidentiary provisions set out in ss70 & 71 of the RTA.  Sections 70 and 71 of the RTA allows for Police Officers to breath test you within 4 hours after the alleged use or management of a motor vehicle, then you are subject to being charged for driving under the influence under the RTA.

What makes matters worse is that the RTA provides under the same sections that should Police require a blood or urine sample from an accused, that there is a window of 12 hours between the collection of said sample and the alleged use or management of a motor vehicle for it to be admissible as evidence in a Western Australian Court.

The problem with these evidentiary provisions is that it provides Police with an enormous window to charge an individual with an offence that they might not have actually committed.

For example, you’re involved in a traffic collision and provide Police with your details should they require a statement. You return home and have a drink to calm your nerves after being involved in a traumatic event. Police arrive a short time later requesting a statement or to question you further and during that process, request a breath sample for analysis, picking up on the alcohol you had just consumed.

Under the RTA, that breath test is admissible as evidence and you would be charged with Driving Under the Influence, even if you hadn’t had a sip of alcohol before returning home.

These provisions provide for far too generous an amount of time between an alleged offence and testing. The presumption of guilt that follows goes against one of the cornerstones of our legal system, being the presumption of innocence. Further, these provisions circumvent the onus of the prosecution to prove an individual’s guilt beyond a reasonable doubt as the collection of a sample within the specified timeframe does not recognise that an accused may consume alcohol after the purported incident.

If the contents of this article apply to your current situation, please do not hesitate to contact one of our criminal lawyers on (08) 9408 5212 and speak to a lawyer regarding your rights.

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.

Can The Police Take My Phone?

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As we become more reliant on our mobile phones, the idea of losing it can cause a lot of stress and anxiety. The question that a lot of people have though, is under what circumstances can the police take my phone and recover the information stored on it?

According to the Criminal Investigation Act 2006 (WA) (“the Act”) there are multiple circumstances in which police may seize a mobile device, these include:

  1. The police have a search warrant; and/or
  2. The police reasonably suspect that the phone may be relevant to an offence

SEARCH WARRANTS

Police can obtain search warrants to investigate a “target place” or to search for a “target thing”. They are able to seize any “thing” at the target place that may be relevant to an investigation, or that they have a reasonable suspicion has been used for the commission of an offence.

If your phone is the “target thing” or, police reasonably suspect that it’s relevant to the investigation they will likely be able to seize your phone.

REASONABLE SUSPICION

If police don’t have a warrant they may still be able to seize your phone under section 146 of the Act.

This section specifies:

If this Act provides that an officer may seize a thing that is relevant to an offence the officer may do so only if the officer reasonably suspects one or more of the following –

  • That the thing is property that has been stolen or otherwise unlawfully obtained;
  • That the thing may be seized under another written law;
  • That the possession of the thing at that time and place by the person in possession of it is unlawful;
  • That the thing may be forfeited to the State or the Crown;
  • That it is necessary to seize the thing for one or more of the following purposes –
    1. To prevent it from being concealed, disturbed or lost;
    2. To preserve its evidentiary value;
    3. To do a forensic examination on it;
    4. To prevent it from being used in the commission of another offence

Police aren’t able to seize your phone on a whim. They must be able to show that they have a right to seize it, and, that they have a reasonable suspicion that the phone relates to an offence.

DATA ACCESS ORDER

Just because the police have your phone does not mean you need to unlock the device or provide them access to it.

If police want to unlock the device, they are required to obtain a “Data Access Order”. If their application is successful then you would be required to provide information and assistance reasonable and necessary to allow the officers to gain access to the data included in the Order.

If you have been served a search warrant, or had property seized by the police, please do not hesitate to contact one of our criminal lawyers on (08) 9408 5212 and speak to a lawyer regarding your rights.

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.

Will my Past Criminal Convictions Stay on my History Forever?

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Your past criminal convictions on your criminal record can impede your future; it can impact your ability to get a job, travel to some countries, obtain visas and loans.

If you have been convicted of a crime in the past, you may be worried about whether it will stay on your criminal record forever.

While there is no obligation for the police in Western Australia to destroy any conviction record information – you may be able to apply to have your convictions “spent”.

 

What is a Spent Conviction?

A spent conviction does not have to be disclosed under most circumstances and will not be included when you apply for a National Police Clearance check.

This does not mean that the offence disappears completely, the police will still have a complete record and if you have later court appearances, even spent applications are considered.

Certain situations do require you to disclose a spent conviction such as when you apply for a Working with Children Check, or if you are applying to work for a casino or the police.

 

Am I Eligible?

To be considered eligible for a spent conviction in WA for a past offence, the conviction must:

  • Be a ‘lesser conviction’ in which the penalty was;
    • A fine of $15,000 or less; or
    • An imprisonment term of 12 months or less.
  • Have been heard in a West Australian Court;
  • Be over 10 years old; and
  • The most recent conviction (if multiple), including traffic and interstate matters, must be over 10 years old or have a fine of under $500.

For lesser convictions these are dealt with by the Commissioner of Police.

If however you wish to have more serious convictions spent (that being penalties above the $15,000 / 12-month limit) you must make an application to the District Court.

Factors that are considered for a successful application include;

  • Your personal circumstances;
  • The type of offence;
  • The penalty you receive; and
  • Your criminal history.

 

Commonwealth (Federal) Offences

If you have been convicted of a federal offence, this conviction may automatically become spent after a certain amount of time under the Crimes Act 1914 (Cth).

These times are:

  • For an adult, 10 years beginning on the date of conviction, and
  • For a minor, 5 years beginning on the date of conviction.

 

How can a lawyer help?

Lawyers would be able to advise you on whether or not you are eligible to apply to have your past criminal convictions spent. On top of that, we can assist you in drafting your documents needed to progress your application and put your best foot forward before the Courts.

If you wish to be assisted on the matters discussed above or have any further questions, please do not hesitate to contact us today on (08) 9408 5212 and speak with a lawyer regarding all your criminal record queries.

 

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.

Coping with Christmas – 10 tips for separated Mums and Dads

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For families with separated parents, coping with Christmas can be a time of disappointment and disagreement. Rather than opening presents first thing in the morning and happily gorging yourself with far too many mince pies, separated parents might find themselves a little sad during what should be a joyful time. Caught in the middle of this are children who just want to enjoy the festive period.

With substantial experience in family law, our lawyers have ten top tips to help separated parents make the most of coping with Christmas:

  1. Plan ahead. If you’re not sure whether the kids will be at your house or your ex’s on Christmas morning, now is the time to make arrangements.

 

  1. Remember that Christmas is a time for your children. Practical steps to prioritising the children’s best interests include asking them what they want to do over Christmas, listening closely to what they say and putting their wishes ahead of your own. The kids want to watch The Grinch on Christmas Eve instead of It’s a Wonderful Life? Maybe suck this one up, Dad.

 

  1. That being said, parents should always call the shots. If children’s wishes can’t be met (for example if, despite their pleas, you can’t make it to the North Pole to visit Santa and his elves this year because of border closures), explain to the children why they can’t do exactly what they want to do over Christmas. Young children are not decision-makers – that’s your role.

 

  1. Build the children’s excitement by telling them everything they can expect on Christmas day. Who is coming over? What are you eating for lunch? Most importantly, when can they open their presents? This serves the dual purpose of encouraging some festive excitement and keeping them involved in the plan for the special day, causing them to feel involved.

 

  1. Allow your children to take items of comfort between homes. This is particularly helpful if the children are young, as they are more likely to have a favourite and familiar item which will help them settle into the other parent’s home. If one of the children accidentally leaves an item of comfort with you after handover, organise for it to be returned as soon as possible.

 

  1. Be flexible. While each parent should try to abide by the agreed care arrangement, sometimes things happen. If the children are half an hour late to handover because your ex’s Christmas family lunch went a little over the planned time, suggest the children spend an extra half an hour with you to make up for this. Be practical, not argumentative.

 

  1. Avoid conflict. Although emotions are heightened over the festive period, especially if Christmas isn’t living up to what you had hoped. It’s important to avoid conflict when the children are present. The quickest way to ruin Christmas for your children is to argue in front of them.

 

  1. Handover should not be stressful. If seeing your ex is usually a tense affair, enlist the assistance of a third party to facilitate handover for you. For example, a family member or friend. Avoiding your ex entirely is sometimes the key to keeping negative emotions at bay.

 

  1. Seek legal assistance if you need to. You could do everything in your power to plan the perfect Christmas around your difficult ex, and they still might not cooperate. In such a scenario, remember that our office does not shut down for Christmas until 24 December 2020, so there’s still plenty of time to reach out for assistance.

 

  1. Finally, always remember there are many social services open over Christmas if you need help. The contact information for various services who specialise in providing assistance to different people in different circumstances can be found via the following link: https://www.whiteribbon.org.au/Find-Help/Help-Lines.

 

If you would like to discuss your personal circumstances with one of our experienced family lawyers for coping with Christmas, please contact our office today on (08) 9408 5212.

Carrying a Weapon: Could what’s in my Bag Get me in Trouble?

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Have you ever been going about your day, minding your own business and then had to go through a bag check and wondered if the contents of your bag could get you in trouble?

What exactly is a weapon? Could that pocket knife you got for your 16th birthday that you always forget is there get you in trouble?

Almost anything can be a weapon if it is carried or possessed with the relevant intent.

Section 8 of the Weapons Act 1999, holds that it is an offence to carry an item that is not a controlled or prohibited weapon, but could be used as a weapon (such as a baseball bat or wrench), if the person has an intention to use it as a weapon, or threatens to use it as a weapon. Whilst the section does provide a list, it is important to know this isn’t exhaustive. The biggest concern is what you intend to do with the object.

Whether or not an item can be said to be a weapon, depends on the way in which it is being held or used. There needs to be enough evidence to give reasonable grounds for suspecting that the person has the relevant intention to use the item as a weapon. Circumstances which may be taken into account to determine intention include the object itself, the location in which it is being carried, how it is being carried, the time of day, and whether there is a credible explanation.

A good example of the matter of ‘circumstance’ is that of Guant v Hooft [2009] WASC 36. A tow truck driver approached another driver with a spanner in his hand. He argued he had it because he did not want the other driver to leave, he had no intention of using it as a weapon. Even though he was yelling as he approached the other driver, it was decided that he did not have the relevant intent for the spanner to be considered a weapon and that under the circumstances it was reasonable for him to have a spanner without the intention of it being a weapon.

If you have been charged with a Weapons offence or had property seized by police under suspicion of a weapons offence, get in contact with one of our criminal lawyers to discuss your matter and your rights and obligations.

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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