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INCORPORATING JAMES NOBLE FAMILY LAW

Is Cassie Sainsbury pure as the driven snow?

Is Cassie Sainsbury pure as the driven snow?

JOIN THE CLUB

Cassie has joined an exclusive Australian club. Bob Hawke, Paul Keating, John Howard and Malcolm Turnbull all have warned young Australians not to join this club, as there are no Immediate Past Presidents…

He savoured the last morsel of dawn sunlight as the hessian hood was lowered over his head. This was his last view of the world. A sack.

The pinching of the handcuffs had always bothered him. Not now.

Was he walking or being dragged? It did not matter now. He was there. His last 50 paces had now happened.

Six feet of judicial twine had been unfurled, just as his bladder did. The warm moistness was almost comforting. He needed his puffer. His breathing was laboured through the sack. Please, he begged: ‘my puffer, I will die’.

But death was the point.

A deft hand grabbed his right shoulder. Something tightened under his left ear. The hand disappeared just as swiftly as it arrived. But each elbow remained under a vice-like grip.

The Sub-Continent accent mellifluously uttered: ‘I am sending you to a better place”.

The hinges of the lever were poorly oiled. Squeaking his last sound. The sack his last smell. The sack his last sight. The vice like grip his last human touch.

1.4 Kilojoules of ferocious force cracked his neck like a whip. That is the same energy the Sun generates to project sunlight on a square meter of earth per second.

And that is how Van Tuong Nguyen died at 6:07 am on 12 December 2002 in Singapore.

No Worries

She’ll be ‘right mate – I am Australian. Kevin Barlow, Brian Chambers, Michael McCauliffe, Van Tuong Nguyen,  Andrew Chan and Myuran Sukumaran uttered this catch cry to no avail.

Why? Because Malaysia, Singapore and Indonesia are Sovereign countries. Australia is a great place, with great people. We are good sportsman! But we are a minnow on the world stage. (Interestingly, Kevin Barlow was a British Citizen. It bore little consequence).

In each of the above cases, (Kevin Barlow, Brian Chambers, Michael McCauliffe , Van Tuong Nguyen,  Andrew Chan and Myuran Sukumaran), Australian Prime Ministerial representations to the Prime Ministers of  Malaysia, Singapore and Indonesia failed. Period. Necks were snapped like twigs. Aortas were ruptured.

And so Cassie Sainsbury will be at the mercy of the Colombian Judicial System.

Cassie was caught with nearly six kilogrammes of Coke. Shocking and frightening for her. But, why was she under the notice of the US Drug Enforcement Agency (USDEA) even before setting foot in Bogota, Colombia? The USDEA had had her on their radar since she was in Hong Kong. The USDEA tipped of the Colombian Government who were waiting for her at the Airport. Is Cassie pure as the driven snow (pardon the pun)?

This much is certain. According to Orlando Herran, a Colombian Legal Eagle, Cassie will spend the next twenty (20) years in gaol if she pleads Not Guilty. If she pleads Guilty she will serve two (2) to four (4) years gaol.

No doubt Cassie will have the benefit of Prime Ministerial representations. No doubt she immediately contacted the Australian Diplomatic Mission upon arrest.

But Colombia is its own Sovereign Country. Why should Australia dictate how the Colombian’s are to apply their own laws? Kevin Barlow, Brian Chambers, Michael McCauliffe , Van Tuong Nguyen,  Andrew Chan and Myuran Sukumaran are evidence that any diplomatic overtures are likely to fall on deaf ears.

Cassie Sainsbury’s defence seems to be “I did not know”. Is she a Personal Trainer or an executive with an International Cleaning Company? She has told both these versions to Colombian officials. Why would either of these occupations be carrying 18 sets of headphones across an international border? Is a better way of stating her defence “I did not know how much trouble I would be in!”.

Life in prison

In Australia, trafficking in a commercial quantity of cocaine carries up to life in prison. Anything above 2kg of cocaine is a commercial quantity. Cassie had nearly six (6) kilogrammes.

So let’s return to the death penalty.

Firing squad is another method of execution.  Andrew Chan and Myuran Sukumaran died this way in Indonesia on 29 April 2015. Why do they tie the condemned man to the post? Is it to stop them from running away? No, the sound of the gunfire is enough to cause a man to faint and for the lead messengers of the hereafter to miss their target.

Cassie Sainsbury will be fighting gangs, disease and death on a daily basis in a Third World gaol. Is her punishment or the death penalty the more severe punishment?

Let us know your thoughts.

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Entering Into A Financial Agreement? Don’t Get Sold Short!

KEY POINTS FOR ENTERING INTO FINANCIAL AGREEMENTS

Some helpful advice if you are considering entering into a Financial Agreement.

Financial Agreements under the Family Law legislation are not simple agreements. There are certain requirements which must be complied with if the agreements are to be binding. If these requirements are not properly dealt with the Court will have no hesitation in overturning a Financial Agreement should either you or your partner in the future not wish to be bound by its terms.

Solicitors are required to advise the parties entering into a Financial Agreement on the advantages and disadvantages of entering into those agreements. The parties sign a certificate attached to the agreement that they have received this independent legal advice. The solicitors also sign certificates stating that they did provide the advice required prior to the parties signing the agreement.

The advice not only deals with the terms of the agreement itself but also provides a full advice on the legislation under the Family Law Act and the positions the parties would be in if they had not entered into the agreement.

DRAFT AGREEMENTS

Agreements are drafted to suit the particular circumstances of each case. The agreements come under different sections of the Family Law Act depending on whether the parties are in a de facto relationship and wish to remain in that relationship, if the parties are in a de facto relationship and intend to marry, an agreement during a marriage and also an agreement after a divorce setting out the terms of a property settlement dealing with the financial issues arising from the breakdown and the divorce in the marriage.

When drafting the agreement and to enable a solicitor to provide the required advice it is necessary to obtain detailed instructions of the relationship, contributions made by the parties at the commencement of the relationship and contributions made by the parties during the relationship. Without these instructions a full and proper advice cannot be provided.

Once a client’s instructions have been obtained in regard to the relationship and contributions it is then necessary to obtain the details instructions in regard to the wishes of the parties in regard to assets they wish to maintain full and legal control over and those assets which are to be joint assets. Instructions are also required in regard to superannuation, estate rights and spousal maintenance should the relationship breakdown or if there is a death of one of the parties.

Once the agreement has been drafted setting out the parties’ joint instructions to their respective solicitors it is then necessary to provide a detailed advice on the terms of the agreement reached and on the advantages and disadvantages of entering into that agreement.

Unless all these steps are carried out and proper advice given there is a strong possibility that the agreement would be overturned by the Family Court if a party upon separation wishes to set aside the agreement and seek a greater property settlement than that set out in the agreement itself.

It is necessary for both parties to provide schedules setting out their present assets, liabilities and resources including superannuation. The updated schedules are required to be attached to the Financial Agreement itself.

It is to be hoped that the parties agree on the values of the items set out in the schedules without requiring formal valuations to be carried out. The solicitor acting for the other party is required to give the advice that have been mentioned.

It is necessary that the other party obtains an advice from a competent family lawyer and receives a detailed advice in writing. There are many cases where the agreements have been set aside when the partner has not obtained that detailed advice.


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What Are The Responsibilities And Entitlements During A Probationary Period?

The concept of a ‘trial period’ or more colloquially “try before you buy” has been accepted as part of the employment relationship for some time and has become more important in recent years as employers face an increasing risk of a costly claim by an employee that the ending of their employment was ‘unfair’.

Such trial periods allow employers, during the early stages of employment, within which they can assess whether the employee is able to meet the standards and expectations of their new job role and also assess whether they are a good fit culturally through close supervision, monitoring and assessment of the employee’s work ethic and performance.

MINIMUM EMPLOYMENT PERIODS

Such probationary periods are defined as “minimum employment periods” (MEP) in the Fair Work Act 2009 (Cth) (‘the Act”) – there is no reference to a probationary period in the Act. ). The Act provides for a minimum employment requirement of six (6) months or twelve (12) months for businesses that employ less than fifteen (15) people.

Employers should be aware that an employee within a minimum employment period has many of the same rights enjoyed by other employees, including notice periods and leave entitlements (including family related leave).

However and most importantly an employee within a minimum employment period cannot bring an action of unfair dismissal but can bring an action for unfair termination. So let’s consider what is meant by these important terms:

  • “unfair dismissal” (section 385 of the Act), outlines that a person has been unfairly dismissed if the dismissal was harsh, unjust or unreasonable.
  • “unlawful termination” occurs if the employee is dismissed primarily for discriminatory reasons such as temporary absence due to illness, race, colour, sex, sexual orientation, age and physical or mental disability.

So what are the lessons for employers and employees?

Employers
  • Ensure that contract documentation is clear as to what is expected of employees and the manner in which issues will be addressed.
  • Accurately record the expiry date for each employee’s MEP
  • Develop and follow well defined performance review/feedback, performance management and grievance investigation processes
  • If termination is envisaged gather clear evidence that it is not for a reason that would make it ‘unlawful’
  • Terminate employment within the MEP (if termination is appropriate)
Employees
  • Ensure that you are receiving regular feedback on your performance and act on this feedback
  • If you feel that you may be terminated for reasons that amount to unfair termination then gather evidence that you can use to support an action following termination.

Whether you’re an employer or employee, you need to have a solid understanding of the policy, processes and procedures during the probationary period.

Aylward Game Solicitors is here to help.
What do you think? Check out some of our other blog posts:

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Have You Been Left Out Of A Will?

Don’t lose hope just yet!

Your lawyer may be able to help by what is known as a Family Provision Claim to the Court. (Traditionally these claims were known as ‘Testator & Family Maintenance’ Claims).

The well-known Bosch Lecture Theatre at Sydney University is a monument to this area of law. Mr Bosch donated all of his considerable estate to the University of Sydney and left his family destitute. Unsurprisingly, the grandfather case on this area of law is Bosch v Perpetual Trustee Co Ltd (1938) AC 463. (Interestingly, this case was heard by the Privy Council in the UK as the last court of appeal for Australia. Appeals to the Privy Council from Australia were abolished in 1986).

In Queensland the Family Provision Claim remedy is found in Part 4 of the Succession Act 1981 (Old). (Each State of Australia has similar legislation, as does New Zealand where the legislation was invented. The Kiwis are an innovative lot, being the first nation to permit women to vote).

PROVING ELIGIBILITY

What an Applicant needs to prove in court

The Applicant sues the estate’s executor and needs to prove a number of things, namely:

  • That the Applicant is an eligible person in respect of the deceased to make the claim;
  • That financially the estate is not a small estate;
  • That the Applicant is in a position of financial need (compared with the other beneficiaries under the will);
  • That no provision, or an inadequate provision has been made for the Applicant in the will;
  • That the Applicant has not engaged in any disentitling conduct towards the deceased.
An ‘Eligible Person’ varies from State to State, but generally includes children, adopted children and step children.

Disentitling conduct may include a prolonged period of estrangement from the deceased, violence or abuse towards the deceased. There are also cases involving alcoholic, drug addicted and criminal children that may go to the issue of disentitling conduct. The case of Christie v Christie [2016] WASC 45 is a recent example.

It is a highly discretionary area of law that has many rubbery outcomes for Applicants, with both generous awards and no awards at all being reported.  As an area of law it is not:

  • Carte Blanche to rewrite wills;
  • a salve for hurt feelings;
  • an exercise in achieving a ‘fair distribution’ for all concerned.

COSTS AND FEES

The Applicant’s legal costs are generally paid out of the estate

Provided the Applicant has conducted their case sensibly, and has not rejected any sensible offers to settle made by the estate, then the estate usually pays for the Applicant’s legal fees.

This is an important consideration for Applicant and Estate alike. Lawyers are expensive, and the financial worth of an estate can be obliterated by legal fees.

MEDIATION OVER LITIGATION

These matters are usually mediated not litigated

This is why so many of these cases are resolved by mediation and rarely go to trial. In fact, the Court’s practice directions in this area of law mandate mediation and discourage litigation.

That said, like Family Law, Family Provision litigation can be a very bitter and hostile experience and you need a good lawyer to guide you through it. Lawyers often call this area of law “the divorce court of the dead”.

At Aylward Game we have represented the interests of both the Estate and the Applicant. Call us today.

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Administrative Remedies

There are there branches of Government, namely:

  • Parliament;
  • The Courts; and
  • The Executive.
Parliament writes the laws, the Courts interpret them and the Executive enforces these laws.

Perhaps it is an influence of American Television that we are programmed the only way to resolve our legal problems is via litigation.  This is often the answer BUT sometimes taking a deep breath and a step back may lead to alternative pathways.

There is a whole coterie of less than well-known (at least as far as the general public are concerned) administrative remedies that may fix your legal problems.

LAW REFORM COMMISSIONS

These operate at both the Federal and State levels. These are staffed by more senior lawyers who are often Judges, senior legal academics, QC’s and eminent Solicitors.

The commissions are tasked with reviewing Acts of Parliament that are referred to them by the Attorney-General. They often suggest amendments to laws that are often actioned by Parliament. For instance, the decriminalization of medical marijuana would have had its genesis in a law reform commission review.

Do you perceive a law to be unjust or antiquated? Maybe, the Queensland Reform Commission (QLRC) and / or Australian Law Reform Commission (ALRC) can help.

COMPENSATION FOR DEFECTIVE ADMINISTRATION CAUSING DETRIMENT

Do not be shocked but Government Departments can stuff up – no really!! (For example, imagine a law enforcement official investigating a gang of criminals and another government department releases his home address to those same criminals – these things happen, defective and detriment).

Anyway, this little known scheme under the control of the Federal Department of Finance can be lobbied when this happens.

Although the awards tend to be tight-fisted, if they are awarded at all, there are far fewer steps that need to be taken than taking the relevant Government Department to Court. It is obviously far cheaper.

THE OMBUDSMAN

These are at both the State and Federal level.

Ombudsman is Swedish in origin, and like a Volvo is functional and like a Viking can be robust. The Ombudsman reports directly to Parliament and is tasked with investigating the Executive upon receiving a complaint. If the complaint is sustained the Ombudsman can advocate Parliament for changes and sometimes remedies.

At Aylward Game we have deployed these remedies on behalf of clients when the matter seems to be beyond the reach of the Courts. Think outside the square!!

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What Is Criminal Law?

Criminal Law conjures up images of heavily tattooed men wanting to ‘cap’ you, while hip hop is playing in the background.

And that’s just the lawyers, you should see the clients!

But really the phrase ‘there but for the grace of God go I’ lends itself to what criminal law is really about. You hold down a decent job, you’ve got a mortgage, you are never going to get a free ride in a police car!?
Right??handcuffs
Think again:
  • Have you ever taken the chance of driving after having a beer or two or three? Nothing unusual there but if the Police pull you over and you are over the limit, the Court will disqualify you from driving. If you drive while disqualified by a Court, this is a contempt of Court and gaol (Anglo version of Jail) is on the cards. And yes “Bubba” does exist, and “Beverly” for the ladies.
  • You have lost your licence, does your job go now as well? At Aylward Game Solicitors we can do all Traffic Matters and Work Licence applications in-house.
  • You get 3 high range drink drives in 5 years. Gaol is mandatory. Our Special Counsel was asked by a middle manager in this predicament “do they have a beginners Gaol for drink drivers?” No they don’t.
  • But things more sinister do arise from time to time. Have you ever been a school teacher and had that difficult student –he or she graduates and they could harbour revenge against you for10, 20 or 30 years and they complain to the police that you ‘touched them up’. You are now in deep doodums.  At Aylward Game Solicitors we can forensically guide you with our Special Counsel and our stable of experienced Barristers.
  • Ever had step-children? Yes –  look at point about school teachers.
  • You’re a Uni student hoping to be a professional one day. You like Bob Marley and the ‘odd joint’. Your mate asks you to get him some. The police catch him and he says that you supplied him. You are charged with supply of cannabis. Technically, the maximum sentence you can get is 15 years prison.
And so the list grows.
At Aylward Game Solicitors we welcome private paying clients who find themselves in hot water. If our Special Counsel, Guy Sara or his trusty sidekick, Greg Jones cannot do it we will immediately engage experienced Barristers who can.
Contact Aylward Game Solicitors for a Free Case Evaluation on 1800 217 217 or Contact Us for more information.
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What is Alternative Dispute Resolution?

The Greek’s have a saying that when you go for revenge you ought to dig two graves.

Litigation, like cancer, is a long drawn out experience that is harmful to your health. Revenge is apposite in the process.

We all have enemies and people that we detest, and without the rule of law only our individual moral compass would limit the degree of revenge we would exact.

ALTERNATIVE DISPUTE RESOLUTION CASE STUDY:

Take a young University of Sydney student, let’s call her Sally, in the early 1970’s who met and fell in love with one of her confreres, Paul. There was the house and mortgage. Soon children followed and life was good.

Sally went to a function one night and imbibed ever so slightly too much. The next morning she woke up in John’s bed. John was an up and coming lawyer who lived life in the fast lane, and with women had had more starts than Phar Lap. Sally became besotted with John almost as much as John was besotted with himself.

Sally asked Paul for a divorce, and told him about John. In the meantime John was in secret negotiations with the Attorney- General of the Crown Colony of Hong Kong to become a Crown Prosecutor. The negotiations came to fruition.

Alternative Dispute Resolution is the use of methods such as mediation or arbitration to resolve a dispute without resort to litigation.

Sally landed on John’s doorstep in Sydney, just as John was landing at Kai Tak in 1976. Sally never saw John again. Paul never met John.

Her marriage was in tatters. Paul became an alcoholic and vowed eternal revenge on John. One of their children, who took the breakup particularly hard, developed mental illness with tragic consequences later in life at that notorious place in Sydney, the Gap. Paul thought about hiring a contract killer to dispense with John.  John became a QC with the accouterments of Ferarri’s and even faster women.

Fast forward a quarter of a century. Sally was dead. Hong Kong had gone back to the Chinese. Paul had cirrhosis and John returned to Sydney in semi-retirement although he was now a much sought after Barrister in Sydney.

John, a single man with no children, bought an apartment in Manly and struck up a friendship with his next door neighbour. Over the years they shared, the odd cup of tea, the chat at the clothes line and helping his mate up the stairs when he had a few too many, which was a regular occurrence. When his mate was sick he nursed him and took him to doctors appointments and the like. It sure beat loneliness. Paul continued to drink himself into an early grave.

John confronted his friend about his drinking problem. His friend told him about his wife leaving him for a young lawyer who then promptly shafted her.

John asked whether his wife’s name was Sally? Paul said yes.

John and Paul became lifelong -friends and when Paul died, John gave the eulogy.

That is Alternative Dispute Resolution and yes it is a true story with names changed.

To discuss your matter, please contact us at your earliest convenience on 1800 217 217.

 

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