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Derek Legal Blog

Author: Derek Legal


Derek Legal Blog

Number of blogs returned: 1 to 5 records of 28

Giving Evidence

If you are involved with any sort of litigation that goes to trial, you will be required to give evidence.

Evidence is divided into three sections, evidence in chief, cross examination and re-examination. In some jurisdictions such as the Family Court, the Federal Circuit Court and the Federal Court, evidence in chief is given by affidavit. That is, rather than having the Plaintiff or Applicant sit in the witness box and give oral evidence in chief, prior to the hearing date the evidence in chief is reduced to writing and is sworn to. Evidence in chief outlines the Plaintiff/Applicants’ story and complaints. If you are giving evidence in chief in a non-affidavit jurisdiction, your Barrister/Solicitor will take you through your evidence prompting you as you go. You cannot be asked a leading question, that is a question that suggests the answer.

Once evidence in chief is completed, you’ll be cross examined by the opposing Barrister/Solicitor. That person is allowed to ask leading questions and is required to put his client’s case so that you have an opportunity to comment on it. When you are being cross examined the question is not evidence. If you disagree with the question, then there will be no evidence on that point. However, if you agree with the question that becomes evidence and that evidence will be acted upon by the Court.

After cross examination, you may be re-examined by your Barrister/Solicitor. You will only be re-examined if your Barrister/Solicitor wishes to clear something up that you have said in re-examination. This will often be something contrary to what you have said in a conference. In re-examination, your Barrister/Solicitor is not allowed to ask leading questions. What usually happens is that your Barrister/Solicitor will take you to the evidence that he believes needs clearing up and ask you some non-leading questions to endeavor to do that.

When you are giving evidence, if the opposing Counsel objects whilst you’re in evidence in chief or if your Counsel objects whilst you are being cross-examined, do not answer the question until such time as the Judge rules whether or not you have to.

Posted in: Derek Legal Blog at 15 August 18

When you separate how do you protect your financial position?

All too commonly when parties separate one party endeavours to get advantage by ‘cleaning out all of the accounts’. Most parties have debts which they are jointly and severally liable. They often have joint accounts and credit cards in which one of the parties is a supplementary holder.

The first thing to do is for any joint account to have the bank change the signature requirement to two signatures and to stop online access.

If you have joint credit cards as opposed to one in which one of the parties is simply a supplementary card holder, you must cancel the joint credit card. If it is a card with a supplementary card holder you must cancel the supplementary card holder’s card.

It is important that you organise your bank credit card supplier and any other financial institution that statements in relation to your accounts are forwarded to you. This is so the other party cannot deprive you of financial information in the shorter term.

The disclosure obligations will mean that you will get the information eventually, but that information may not be in time.

Two things that are often overlooked at this time is your will and power of attorney. It’s important to change your will where the other party is a beneficiary and cancel any power of attorney that the other party may have. This is because unless you do, that party will be able to operate on any account in your name under the power of attorney and ultimately sell a house in your name using the power of attorney.

Other matters that need to be looked at are to check who is the beneficiary under any insurance policies or superannuation policies. These often have a nominated beneficiary and if your ex-partner is a nominated beneficiary the ex-partner will remain so unless that is changed.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 08 August 18

How the Family Court decides Parenting Orders at an Interim Hearing

After the amendments to the Family Law Act in 2006, the Full Court of the Family Court in Goode v Goode stated the legislative pathway to be followed.

After pointing out that at an interim hearing the Court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as per what constitutes the best interests of the child. The Court said the pathway at an interim hearing is:

82. In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Posted in: Derek Legal Blog at 01 August 18

Construction Next Door

On the Gold Coast there is lots of construction going on. This can cause problems for neighbouring properties. These problems can include noise, dust, vibrations and interfere with parking. What can a land owner do about this? Private nuisance is an action that is available when a neighbouring land holder interferes with the beneficial use of another’s land. The beneficial use includes concepts of the actual use of the land but also the pleasure, comfort and enjoyment which a person normally drives for the occupancy of land.

Activities on the land must be reasonable and if they interfere with the enjoyment of an adjoining land or damage adjoining land then the cause of action in nuisance arises.

In the case of dust, noise or vibrations an injunction can be obtained requiring the offending land owner to cease the operations that are causing the nuisance. If the vibrations cause damage the land holder is entitled to the cost of repairing the damage.

Posted in: Derek Legal Blog at 25 July 18

How does a Court determine what is in a child’s best interests?

In a Parenting Order the best interests of the child are the paramount consideration.

Section 60CC of the Family Law Act provides the legislative framework for doing so. That framework is divided into what are called primary considerations and additional considerations.

There are two primary considerations and 13 additional considerations.

The first primary consideration is the benefit of a child having a meaningful relationship with both of the child’ s parents. The subsection focuses on the benefit of the child rather than the parent. It doesn’t for instance mean that any increase in time that a child spends with the parent is necessarily for the child’s benefit.

The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

The legislation mandates that a Court is to give greater weight to the secondary primary consideration when considering the primary considerations. In other words, a child that is exposed to abuse, neglect or family violence by one of the parents is unlikely to benefit from a relationship with that parent.

The Family Court has pointed out that the legislation does not focus on the relationship between the child and the parent, but the benefit that the relationship might have for the child is the paramount consideration.

Posted in: Derek Legal Blog at 18 July 18

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