What should you look for?

• Experience
• Expertise
• Understanding

Most people going through a marriage breakdown suffer considerable emotional distress. Sorting out the complicated issues arising from the broken marriage means you have enough problems to deal with without using the wrong family lawyer. Here are some tips to ensure you get the best possible legal representation. You are encouraged to do some research on the matter of finding the right lawyer. Talk to someone who has had a similar experience. Were they happy with their lawyer? Can they recommend a possible family legal representative? Draw up a list of questions you would like to ask them. Ask them either in writing, on the telephone or make an appointment and go and see them. Here are some questions you could ask.

How long have you been involved in family law matters?

Approximately how many cases have you handled?

Do you have any testimonials from former clients?

What are your fees and charges?

What is your plan for tackling my situation in this particular case?

Because you will be dealing with your lawyers Adelaide on a number of occasions during the process of your marriage is dissolved, it is important that you feel at ease with your legal representation. Is your lawyer easy to contact? Have they explained the options you face? Do they make suggestions as to your best course of action? It’s vitally important that your lawyer has the appropriate understanding of your situation. Sorting out the financial affairs or the care of a child or children are both highly sensitive matters. You need a family law representative who understands the difficulties you face and his sympathetic to your needs.

Special Needs

Family law experts can help in different ways. Perhaps you are planning on getting married and there is a large discrepancy between the assets of the different partners. If one has considerable wealth and the other little in the way of cash and assets, should there be a financial agreement before the marriage? This type of matter is one example of how family law lawyers can advise and, if required, help draw up the relevant documentation.

Going To Court Can Be Stressful

If the marriage breakdown has been especially difficult, going to court can prove extra stressful. This is where a considerate but expert lawyer who knows the court proceedings and how to deal with the “other side” is a real asset for you. Choosing the right family law expert could be your greatest strength.

The post How To Choose Right Family Lawyer in Adelaide For Your Family Law Case appeared first on Evans Testa.

So How Do You Find The Right Lawyer?

The four main qualities you should consider are as follows.

• Experience
• Expertise
• Availability; and
• Communication

As mentioned above, experience is a key factor in your choice. Finding a lawyers Adelaide who is experienced is good but finding a lawyer who is experienced in the type of criminal matter with which you have been charged is even better. A lawyer, who knows the procedure in dealing with a crime you are charged with, is a lawyer you seriously need to consider. Just because a lawyer is qualified doesn’t necessarily mean that they are an expert in the area in which you find yourself. It is in your interest to satisfy yourself that the lawyer you are dealing with knows about your type of matter and is of suitable experience to deal with it for you. Ask question whether they have dealt with cases similar to yours? What results have they achieved? How would you go about defending me in my particular situation? For many people, facing a criminal charge is a very stressful time particularly if this is the first time they have been in this situation.

You need good access to a good legal representative. If the lawyer you easy to contact and easy to communicate with, then half the stress is gone.  It is not unreasonable to ask if your lawyer will be available after hours or can give you the time you need.  You need to be confident you’re your lawyer is capable of putting you at the forefront when you need. A lawyer and his or her client have a special relationship. You need to feel confident in the way your case is being handled and you need to be able to get your point across and understand the responses you receive. If the communication is not free-flowing or the use of big words make it difficult for you, again you will find your stress levels rising at a time when that’s the last thing you want. You will want a lawyer that can speak your language, or in a way you can easily understand. We make ourselves available for discussions over the phone or in person, whatever suits you and your needs.  Don’t settle for anything other than the right lawyer.

The post How To Choose A Good Criminal Defence Lawyer in Adelaide appeared first on Evans Testa.

Losing your licence can obviously have be very detrimental, particularly when it comes to requiring your licence for employment, school children duties, or for any reason that is important to you.  One of the most common traffic matters we come across is where a person loses their licence and wants to know if they can keep ‘just for work purposes’.

Where you are facing a disqualification for a loss of demerit points, you may be eligible to accept a good behaviour option.  This may give you the opportunity of retaining your licence, but it will come with conditions.

If you are a provisional licence holder, you may be able to appeal to the court for a review of the Registrar’s decision to disqualify your licence because of hardship.

There may be some avenues to try and appeal your disqualification. This obviously depends on your circumstances, the most significant being whether your disqualification was issued by the Registrar of Motor Vehicles or a court.

Court Imposed Disqualifications

Disqualifications can be imposed for certain offences that you either plead guilty to or are found guilty of and in many cases where a court imposes a licence disqualification it is a mandatory penalty.

A mandatory penalty is one where the law states that a magistrate or judge MUST impose that disqualification if a person is guilty of the offence and it cannot be reduced or mitigated in any way, no matter the circumstances of the offending or the detriment to you caused by the disqualification.

The only way a mandatory disqualification (or mandatory penalty of any kind) can be avoided is if the charge is withdrawn or the matter is taken to trial and you are acquitted (found not guilty) of the offence or if you make a successful trifling application.  In this instance however, the court can only reduce the disqualification to no less than 1 month.

The most common reasons that mandatory licence disqualifications are imposed are for offences relating to:

• Drink driving (including failing to undertake testing);
• Drug driving;
• Driving in a careless manner or at a speed dangerous; or
• Driving without due care (aggravated).

Registrar of Motor Vehicles Disqualification

Where disqualifications are issued by the Registrar of Motor Vehicles, this is most likely due to exceeding the amount of demerit points you can incur on your licence.

It is worth clarifying here, while most people think you ‘have 12 demerit points’ on a full licence and you lose them when you commit traffic offences, you actually have no demerit points to start and you only incur them when you commit offences. As soon you incur 12 or more demerit points, that is when you are subject to a disqualification period.

Similarly, for learner and provisional licence holders, you are not able to incur 4 or more demerit points, and probationary licence holders cannot incur 2 or more demerit points.

In instances where you receive a licence disqualification because you have accumulated 12 or more points on a full licence, you may be eligible to apply for what is known as a ‘good behaviour option’.

For provisional licence holders and you incur 4 or more points, or you breach a condition on your provisional licence, you may instead be eligible to enter into a ‘Safer Driving Agreement’ for the duration of your provisional licence.

A good behaviour option allows you to continue driving instead of serving the disqualification period, however if you incur 2 or more demerit points during the 12 month duration of that good behaviour option, you will then be disqualified from driving for twice the original disqualification period (e.g. if the original disqualification would have been 3 months, but you breach the good behaviour option, you would then face a 6 month disqualification) and there is no way out of it or any avenue of appeal if this occurs.

As to the Safer Driver Agreement for provisional licence holders, similarly you would be able to continue driving but if you incur 4 or more points during the duration of your provisional licence, you will be disqualified for 12 months and would again have no avenue of appeal if that were to occur.

The only avenues to avoid a further disqualification if you breach a good behaviour option or Safer Driver Agreement is to have the offence withdrawn, to be acquitted of the offence, or to seek a reduction of demerit points (however this is a much harder application than it once used to be).

Drivers are usually not eligible to apply for these options if you have already appealed / been subject to them within the last 5 years.

As with most legal matters, there are other sometimes other considerations to be taken into account as to whether you can appeal a licence disqualification. If you are facing a disqualification and wonder whether you may be able to avoid having to serve it, contact our traffic law specialist, Lauri, at our office on 8263 2400.

The post I am about to lose my licence– What can I do? appeared first on Evans Testa.

There are two legal powers to conduct a search under:

1. The Controlled Substances Act (section 52(6); and
2.  Summary Offences Act (section 68)

WHEN CAN POLICE SEARCH YOU?

In short, police need to have either:

• your permission;
• a warrant; or
• reasonable cause.

(1) Permission

If police ask you whether they can search you, items in your possession (e.g. a bag), a vehicle, or even your house and you give them permission to do so, then they are able to. Anything they find can then be used as evidence against you.

(2) Warrants

• Warrants are specific documents that authorise a police officer to search a premise, a person or even arrest a person. A general search warrant is issued for 6 months and allows police to conduct searches that they may think appropriate but must have a reasonable suspicion that a serious offence has been / is being committed.
• Warrants which can be issued according to different legislation. For example, under the Controlled Substances Act 1983 (SA), a warrant may be issued (where appropriate) to search premises and seize items in relation to drugs.

Different warrants authorise different powers to police depending on the purpose of the warrant. Any searches or seizure of items need to pertain to the warrant that authorised them access to the relevant location in the first instance.

For example, when police received information about a man growing cannabis as well as keeping an unlicensed firearm, an application for a warrant was made to search for the drugs.  That application was denied.  They did however receive a warrant to do an audit on firearms as they knew he did, in fact, have registered firearms also.

When police attended, they checked the firearm stored in a locked cabinet and on asking about ammunition were shown to a drawer below the TV.  Ammunition was also found loose on a bookshelf.  This led them to search the rest of the premises and not long after located cannabis and equipment in a bedroom.

He was charged with drug trafficking, diverting electricity and possessing (drug) equipment.

When considering the legal arguments about the issue of valid searches, the Court on being aware of the first application, found that the search in the bedroom went beyond the reason they attended.

Even though there was a significant quantity of cannabis located, the search occurred despite a refused warrant application and therefore the search was unlawful.  This meant that the cannabis was inadmissible and could not be used.  (R v King [2017] SADC 39)

(3) Reasonable Cause

• If police suspect on reasonable grounds that an offence has or is being committed and you may be involved, they may search you, your car, a bag or your house.
• The suspicion or reasonableness is a state of mind but must be more than a ‘hunch’.

A recent case involved an appellant charged in the District Court with two counts of trafficking, namely ecstasy and heroin, on 2 July 2013. She applied before trial for exclusion of evidence by two police officers of finding the drugs in her handbag on the ground that the detention and search of her Commodore vehicle and person on that day was unlawful.

Police gave evidence in a preliminary hearing (voir dire) that she formed enough suspicion to pull over the vehicle and search the vehicle and driver. The officer did not articulate what it was that she suspected.  The officer identified the grounds for her suspicion being that the house from which the Commodore emerged was associated with drugs and drugs had been found in the Commodore on a previous occasion in a different location being driven by different persons.

A Judge ruled before trial that the police officers had the requisite reasonable suspicion for the purposes of section 52 of the Controlled Substances Act 1984 (SA) and in any event he would have exercised his discretion not to exclude the evidence. The appellant was subsequently convicted at trial by a jury on both counts. This was appealed to the Full Court; the appeal was allowed, and the convictions were set aside and substituted with an acquittal on both counts. 

DOES THIS APPLY WITH TRAFFIC STOPS?

Yes.  Police can either stop you because they have ‘reasonable suspicion’ to do so and undertake a search; or

If they stop you for a random traffic stop (which they are able to do so as they can perform random breath testing at any time), and during that random traffic stop they then form a reasonable suspicion, that would give them grounds to search you and your vehicle.

SO, IF THE SEARCH WAS UNLAWFUL, DOES THAT MEAN ANYTHING THEY FIND GETS THROWN OUT?

The short answer? Not necessarily. An unlawful search does not simply mean anything they find is “thrown out of court”.

Where it may be that a search is unlawful, an application or interim argument needs to be had to determine the lawfulness of a search.

The Court has the discretion to determine whether, if a search is unlawful, any evidence resulting from such search should be deemed inadmissible (not able to be used as evidence in the case).

The post “WAIT, CAN YOU DO THAT OFFICER?” – Your rights relating to Police searches appeared first on Evans Testa.

If you are a prescribed applicant, you will not be eligible for police bail and you will need to make an application to the court.  You must satisfy the court that special circumstances exist to release you. If the court is not satisfied you will be refused bail and will be remanded in custody until your later court appearance.

If you commit offences of a certain nature, the presumption is removed, and you will be a prescribed applicant.

These offences include (not limited to):

• a breach of an intervention order
• offences involving firearms
• certain breaches of bail which relate to the physical protection of a victim
• attempting to escape a police pursuit or engaging in a pursuit

What is a special circumstance?

There is no specific definition as the Supreme Court has said each circumstance should be interpreted widely.

There is no single answer to the question, each application will be considered on its own merits.

Please contact us for advice in relation to any matters involving arrest or criminal law generally.

The post Bail Applications: Are You Eligible? Are You a Prescribed Applicant? appeared first on Evans Testa.

For example, a spouse or child of the deceased may claim as they suffer hardship as a result of the deceased’s wishes.

In effect, they apply to “challenge” the terms of the deceased’s will.

Claims can also be made under the Act in relation to an estate where the deceased did not leave a will.

The test applied is whether the deceased failed to provide adequately for the applicant’s proper maintenance, education or advancement in life.

Time limits apply to such claims and delays can result in an otherwise good claim failing.

We have successfully handled numerous claims for clients under the Act and invite you to contact us should you need any advice regarding Wills and Estates Lawyer.

The post Claims Against Estates Under The Inheritance (Family Provision) Act appeared first on Evans Testa.

This decision has raised the simple question as to whether or not these agreements are worth the paper they are written on.

The short answer is “yes”.  When drafting such agreements, care needs to be taken to avoid “grossly unreasonable” agreements suggesting one party may have unfairly influenced another or engaged in unfair conduct.

Independent lawyers must give each party to a financial agreement independent advice as to its terms and their effect.

It must be noted that in the case referred to one party was given strong independent legal advice to not sign the agreement as it was “entirely inappropriate” but they signed it in any event.

To be valid, financial agreements must be fair to all parties, especially one who is less wealthy than the other.

Financial agreements, if properly drafted, are an important way of protecting assets when entering into a new relationship.

We have experience in drafting financial agreements and invite you to contact us should you have any queries regarding family law matters.

The post Pre-Nuptial & Post-Nuptial Financial Agreements – The High Court’s View appeared first on Evans Testa.