Wife given exclusive possession of family home

Family Law | Property | Sydney

A judge of the Federal Circuit Court in Sydney recently granted our client – the wife exclusive possession of the family home.

Living separately under the same roof were the wife, the husband and two of their adult children. The wife was a home-maker and the husband a businessman.

Ownership of the family home was in the sole name of the husband.

Upon returning from an overseas trip, the husband attended the family home accompanied by police. He told the police that he was the sole owner of the property. Police asked the wife to leave.

Feeling frightened and intimidated, the wife left the family home with a few of her possessions to reside with one of her adult children.

Upon the wife contacting our Liverpool family law team, our solicitors immediately lodged an application with the court seeking an interim order that our client have possession of the family home to the exclusion of the husband.

At the interim hearing, our family lawyers adduced evidence from the wife and three of her adult children. Serious allegations of domestic violence were made by the wife.

Her honour ordered the husband to vacate the family home within 28 days, from which time the wife would have exclusive possession of it. There was no reason why the husband could not live in a vacant granny flat on another property he owned, the judge reasoned.

AVO Application withdrawn on first court date

Criminal Law | AVO | Parramatta

Our client had been exchanging text messages with a close friend with whom he had lived with in the past.

At one point, the friend started sending messages making fun of our client’s marital status. Our client responded by sending sarcastic messages.

The messages worsened to a point where our client sent a message which could have been construed as harming the friend’s children.

No threat or harm had ever been intended by our client to his friend or the friend’s children.

A police complaint was made by the friend to the police.

The police applied for an Apprehended Violence Order against our client and took out a Provisional AVO against him.

Our client approached our Parramatta criminal lawyers before the first court date of his matter.

Following negotiations between our Parramattal AVO lawyers and police, police agreed to withdraw the AVO on the first court date.

It is crucial to obtain advice about an AVO from the best criminal lawyers who specialise in AVOs as soon as you are contacted by police. This will ensure that your legal costs and your time spent in court and preparing documents for court are minimised; and that you get the best possible outcome.

Section 32 Mental Health order made at second attempt

Criminal Law | Mental Health | Liverpool

Our client was charged with multiple offences, including being carried in a conveyance without the consent of the owner (joyriding), possess prohibited drug, goods in custody and possess prescribed restricted substance.

She had made an application pursuant to section 32 of the Mental Health (Forensic Proceedings) Act 1990 through her previous criminal solicitor. That application was refused.

There was no dispute that our client was suffering from a mental illness.

Upon the client contacting our criminal lawyer in Liverpool, we entered into plea negotiations with the police. Our criminal attorney made representations which were successful. The most serious charges were withdrawn and the most damaging claims in the police facts sheet were deleted.

At the sentence proceedings, our criminal defence barrister made a further application for our client to be dealt with under section 32. He submitted, among other things, that given the withdrawal of the most serious charges and the facts now agreed to, it was now more appropriate to deal with our client under section 32 rather than at law.

Despite strong objection from the prosecution, the magistrate agreed with our submissions and proceeded to deal with our client under section 32.

The effect of the decision was that no criminal conviction was recorded against our client.

An application under section 32 can be made at any time, including before or after hearing and before or after sentence.

From 27 March 2021, all mental health applications will be dealt with under the section 12 of the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Applications made before that date will continue to be dealt with under section 32.

Our highly experienced criminal lawyers appear in all metropolitan local courts including Liverpool Local Court and Parramatta Local Court.

Family Court throws out claim for spousal maintenance

Family Law / Property / Melbourne

A judge of the Federal Circuit Court in Melbourne has dismissed a wife’s application for spousal maintenance. She had made the claim against our client – the father in family law proceedings.

Our client was an IT specialist earning a six-figure salary. The wife was not working and was caring for an infant child of the parties. Claiming that she could not support herself, the wife sought the sum of $624 per week in spousal maintenance from our client.

Opal Legal’s team of family lawyers carried out a forensic investigation in Australia and overseas of the wife’s finances. As a result, we obtained damning evidence of the financial resources of the wife. This included:

Interests in companies in India
Term deposits in India
Interests in shares in India
Ownership of properties in India
Provident Fund assets

When cross-examined by our family lawyers, the wife:

Maintained that she signed a share sale agreement transferring her interest in her family business to her mother in front of two witnesses in India on 25 February 2017. But she was unable to explain why her passport showed that she was in Australia on that date.
Could not explain how she obtained the husband’s confidential bank records from India.
Conceded that she had lied in her resume.
Agreed that she had lied about working in her father’s business.
Could not explain the disappearance and intermingling of vast sums of money through transactions between her, her family members, her family company, her provident fund, her term deposits and her shares.
Was evasive about multiple trips she had made to India.
Gave inconsistent evidence about her earnings.
Claimed, contrary to the evidence of her father and sister, that her sister had lent her $109,000 for legal fees.

In a scathing indictment of the wife’s credibility, the family court judge observed:

“…Her (the wife’s) attitude appeared to be that lying on a resume was nothing. I disagree. The wife’s deceit gave her an advantage that she wanted and to which she was not entitled. One can only conclude that the wife would lie to secure any other advantage that she wanted, such as an advantage in this proceeding.”
“The share transfer was also alarming… However, the more likely explanation is that the share transfer was a complete fabrication designed, as the husband suggested, to conceal the wife’s true asset position.”
“The obtaining of the record of the husband’s Indian bank accounts goes to another level. It suggests not only unlawfulness, but also perhaps corruption of an officer of the bank. … Her claim under cross-examination to not know where the record came from was patently false, in circumstances where it was emailed to her by her father and she attached it to her affidavit.”

Dismissing the wife’s spousal maintenance application, her honour concluded:

“All in all, I am not satisfied that the wife is a credible witness, or that her financial position is as she claimed. The wife has not persuaded me that she is not able to adequately support herself…”

No conviction for sale of tobacco to minor

Criminal Law / Penrith

Our client pleaded guilty to one charge of selling tobacco to a minor contrary to section 22 of the Public Health (Tobacco) Act 2008 at Penrith Local Court.

Opal Legal’s criminal barrister provided extensive evidence and submissions to the court about our client’s personal circumstances and how the offence had occurred.

It was our client’s first offence. She was a 30 year old graduate who had been working part-time at a news agency.

At the time she committed the offence, she had been undergoing a complex medical procedure.

In dismissing the charge under section 10 of the Crimes (Sentencing Procedure) Act, the learned magistrate accepted our criminal lawyer’s submission that:

Our client’s conduct on the day of the offence was an aberration.
She was highly unlikely to re-offend.
Remorse and full acceptance of responsibility had been demonstrated.
Her plea of guilty was at the earliest available opportunity.
While general deterrence was a very important consideration because of the prevalence of such offences, this was an exceptional case where a non-conviction was appropriate.

The maximum penalty for an individual for a first offence under section 22 is a fine of $11,000

No conviction for domestic violence assault charge after amendments to Police Facts Sheet

Criminal Law / Domestic Violence / Parramatta

Our client was charged with assaulting his wife under section 61 of the Crimes Act 1900.

Serious allegations were made against the husband, including that he:

Swore at his wife.
Grabbed her collar
Grabbed her hair
Pushed her to the ground
Slapped her
Punched her
Grabbed her phone from her
Twisted her arm behind her back
Caused her bruising

Opal Legal’s criminal solicitors made representations to the NSW Police offering to plead guilty to the charge, but based only on the facts admitted by our client.

The facts that our client admitted were:

During an argument between the accused and the victim, the accused held the victim by the shoulders and shook her gently saying, “Why don’t you understand my concern?”

Police agreed to amend the facts sheet as proposed by our criminal lawyers.

Our criminal lawyers appeared at Parramatta Local Court and entered a plea of guilty to the assault charge on the agreed facts.

After receiving evidence and submissions by our criminal barrister, the magistrate dismissed the charge under section 10 of the Crimes (Sentencing) Procedure Act.

In sentencing the offender, the learned magistrate accepted the submission of Opal Legal’s criminal lawyer that the facts the offence fell in the low range of objective seriousness.

Our client held a senior position in a sensitive organisation and any conviction would have jeopardised his employment.

Disqualification limited to three months following two “drive whilst suspended” charges

Criminal Law / Traffic Offences / Parramatta

Our client was a suspended driver. On 1 May 2021, he was caught driving whilst suspended.

Just one month later, he again drove whilst suspended.

Our client pleaded guilty to both offences at Parramatta Local Court.

As to the first offence, Opal Legal’s criminal barrister informed the court that whilst our client had an honest belief that he was not disqualified, he accepted that his belief was not reasonable.

No excuse was offered for committing the second offence, with our criminal lawyer conveying to the court that our client admitted that his conduct had been “stupid”.

The magistrate sentenced the suspended driver as follows:

For the first offence, the charge was dismissed under section 10 of the Crimes (Sentencing Procedure) Act. As a consequence, no disqualification period was applicable.
For the second offence, a disqualification of three months was imposed.

Thus, the suspended driver received a total disqualification of three months.

In imposing the sentence that she did, her honour took into account:

Our client’s honesty in the admissions he made.
The fact that he had completed the Traffic Offender’s Programme (TORP).
His early plea of guilty.
That the suspended driver had excellent prospects of rehabilitation.
Remorse expressed by the offender.

The disqualifications for driving whilst suspended (excluding suspensions for non-payment of fines) under section 54 of the Road Transport Act 1953 are:

First offence: automatic disqualification of six months / minimum disqualification of three months.
Second offence: automatic disqualification of 12 months / minimum disqualification of six months.

Husband’s father joined as a party in Family Law case

Family Law / Property / Parramatta

The father of a husband has been joined as a party in family law proceedings between the husband and his estranged wife.

Opal Legal’s Liverpool family lawyers were acting for the wife in a family law property case. She had sought that the husband’s father be joined as a party.

Over objection by the husband and his father, the presiding Family Court judge ordered that the husband’s father be joined as a party in the case.

The wife’s family law barrister submitted that it was necessary for the husband’s father to be joined in the case, particularly having regard to the fact that:

He claimed an equitable interest in a property owned by the husband.
He had obtained, but not enforced, two default judgements against his son.

In ruling that the husband’s father be joined as a party to the proceedings, the Family Court judge gave significant weight to the following considerations:

The claims by the husband’s father could severely affect the rights of the wife.
Orders could be made by the Family Court ordering the husband’s father to set aside the default judgements he had obtained against his son.
The equitable claim by the father could be transferred to the Family Court.

You can read more about joinder of third parties in family law matters here.