Court

Moss Vale Local Court comes to Picton Court House

Moss Vale Local Court come to Picton Court House

During the first two weeks of March, Moss Vale local court will sit in Picton.

We are really pleased to hear that the Picton Court House is now repaired and open after a severe storm last June damaged the court house. The court house is a historically important landmark in Picton and we are lucky enough to have our office opposite it.

While the Picton Court House was closed for repair work, the local court was temporarily sitting in Moss Vale. In early March this year, Moss Vale local court will sit in Picton Court House while Moss Vale gets some TLC of its own.

At Coutts Solicitors & Conveyancers we offer a full range of agency services for criminal law including defended AVO, traffic offences and assault as well as for any civil listings.

Mediation before litigation

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Abraham Lincoln once said “discourage litigation. Persuade your neighbours to compromise wherever you can”. In addition to being a president he was also a lawyer so he understood that mediation can sometimes be a good alternative to litigation.

Mediation can be as formal as an independent mediator being appointed to work with the warring parties to get them to come to an agreement on a particular date. Each party prepare for a mediation, much like it is an actual hearing. However, people feel a bit free to speak their mind as they are not being cross examined. Things said in mediation are privileged - which means it cannot be used against you in a hearing. For these reasons, a mediation is often less stressful than a day in Court. So consider trying mediation before litigation.

Bear in mind that once you commence proceeding, many judges will order parties to attend a mediation. For some types of claim, such as a Family Provisions Act claim, it is compulsory before a hearing. Various types of mediation are also compulsory in Family Law. But note - you cannot be ordered to agree to any offers the other party might make, you are only ordered to attend. It's important to make sure any agreement to settle is written down, signed and capable of being enforced. For example, if company A owed company B money, you cannot reach a binding agreement that Company C will pay that debt (unless of course company C agrees to it). Your solicitor will include a number of terms that will make your agreement enforceable. If you are already involved in litigation, any agreement can be placed into Orders that the Court will then stamp, acting as though you had a judgment in the matter.

An agreement can also come about in an informal way - such as both lawyers chatting over the phone about a resolution with each call getting closer to agreement. Whichever method is tried, both parties need to be prepared to engage in the mediation process and at least try to resolve their dispute.

One key benefit of mediation is that the parties have agreed on the resolution themselves, so it is often more practical for their own particular circumstances. It is often easier to re-establish a commercial relationship after a mediation, rather than dragging someone through a hearing.

Sometimes people simply cannot agree on anything and mediation will not achieve a resolution. Other times, a dispute is of a highly technical nature requiring expert evidence and novel legal arguments. Again, these matters may not be suitable for mediation. Even though litigation is often expensive and stressful for many businesses it goes hand in hand with doing business, hopefully only on an occasional basis.

Whether or not your dispute is resolved at mediation or you end up running a full blown hearing - you must have legal representation skilled in preparing your evidence and presenting it to the Court to ensure an enforceable outcome.

Your guide to Apprehended Violence Orders (AVO) in NSW

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What is an Apprehended Violence Order (AVO)?

An AVO is an Order made by a court against a person for the following reasons:

  • That person has made you fear for your safety;
  • To protect you from further violence, intimidation or harassment;
  • To prohibit the person from assaulting, harassing, threatening, stalking, or intimidating, amongst other conditions.

The person that is feared is known as the defendant, and the defendant must obey the Order made by the court.

There are two types of Apprehended Violence Orders:

  1. Apprehended Domestic Violence Order (ADVO) is made where the people involved are related, living together or in an intimate relationship, or have previously been in a similar situation. They can also be available to people who are or have been in a dependent care arrangement with another person, including paid carers, and to people living in the same residential facility.
  2. Apprehended Personal Violence Order (APVO) is made where the people involved are not related and do not have a domestic relationship, for example, if they work together or live in the same neighbourhood.

In both circumstances, the police can make a Provisional AVO when they are waiting for the matter to be listed in court. When it is listed in court, the police can then apply for an interim AVO to protect a person, whilst the matter is pending.

A provisional order will remain in place for 28 days at the most. An interim AVO will remain in place until the matters has finalised, and either been dismissed or a final AVO has been granted.

If a final AVO is made, they are generally made for 12 months to 2 years. An alleged victim has the opportunity to extend the AVO prior to the end date, if they are still fearful of the Defendant, and have proof of same.

When can the court make an Order?

The Court can make an AVO if:

  • The Defendant has been served with the Application but does not come to court without a good reason;
  • The Defendant consents to an AVO being made; or
  • After hearing evidence, the Magistrate is satisfied that there are fears for a person’s safety and those fears are reasonable.

Proceeding to Hearing

If the Defendant does not agree to the AVO being made, the matter will be delayed for Hearing. The Magistrate will then direct both the Defendant and the Police to file written statements to the court by a specific date. If the Applicant (person in need of protection) fails to comply with these directions, the court may dismiss the Application, or the court may delay the matter for the filing of these statements. Similarly, if the Defendant does not comply with the direction, they may not be able to give any evidence at Hearing.

Once both parties have complied with the direction of the Courts, the Magistrate will set the matter down for a Hearing.

At the Hearing, the evidence is usually based on what is contained in the statements; however the parties may be required to give further evidence verbally. The police may also submit a video or audio recording.

The Applicant or the Police Prosecutor on behalf of the Applicant, presents their case first. The Defendant or their lawyer will then have the opportunity to ask the Applicant and witnesses questions about the evidence. The Defendant will then present their case. The Police Prosecutor on behalf of the Applicant will have the opportunity to ask the Defendant questions about their evidence.

What conditions can be imposed?

 The court can impose both Mandatory Conditions and Additional Conditions, if they deem it necessary.

 Mandatory Conditions

  1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
  2. The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
  3. The defendant must not stalk the protect person(s) or a person with whom the protected person(s) has/have a domestic relationship.

Additional Conditions

  1. The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises.
  2. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises.
  3. The defendant must not go within a certain distance from where the protected person(s) may from time to time reside or work.
  4. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative, or as agreed in writing, or as directed from Family Law Court Orders.
  5. The defendant must surrender all firearms and licences/permits.
  6. The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care.
  7. The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) may from time to time reside or work within a specified time of the defendant consuming drugs or alcohol.
  8. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s).

Can the AVO be dismissed if the alleged Victim does not appear at Court?

A number of scenarios can occur if the alleged victim does not appear at Court. These include:

  • Dismissing the AVO;
  • Issuing a warrant for the arrest of the alleged victim (more likely if the alleged victim has been served with a subpoena);
  • Adjourning the matter to see if the police can get the alleged victim to attend court on another date; or
  • The matter is stood in the list until later on in the day to see if the police can contact the alleged victim to attend court.

Can I be charged along with the AVO?

Police can charge a Defendant, as well as take out an AVO on the Defendant. There is a chance that the charge or AVO can be dropped, however this is uncommon as Police are determined to have these matters dealt with in Court, according to law.

What effect will an AVO have on my future?

An AVO is not a criminal charge, so if an AVO is made, you won’t get a criminal record. However, there are some issues that arrive in the event that an AVO is made against you. These include:

  • The police will record the AVO in their database.
  • If you have registered firearms, you will have to give them to the police, and your firearms licence or permit is automatically suspended by a provisional or interim order, and revoked by a final order.
  • You cannot obtain a new firearms licence for 10 years after the order has finished.
  • An order may affect your ability to work as a security officer, police officer or corrections officer, or if it involves children, it may also affect your ability to work with children.

Breaching the AVO

You can be charged with the offence of Contravene AVO if you breach the AVO. The maximum penalty is a fine of $5,500.00 and/or a prison sentence of 2 years. It is a very serious offence, and if you have been charged, please contact our 24 hour legal hotline on 0403 242 924 to arrange an initial free consultation.

If you have any questions, or are seeking advice in relation to an AVO, please contact our Criminal Law Hotline on 02 8324 7527 to arrange an initial free consultation.

How to win your court case

Everyone wants to know how to win their court case. The truth is, there is no way to guarantee a win, and in family law a win often doesn’t look like a win anyway. But all is not lost, and there is way to you come out the other side happy and relatively stress free.

Here are some tips to give yourself the best chance of success in your case, allowing you to move on to a happy, conflict free life, and maybe even save some fees along the way.

Speak to a lawyer who is experienced in family law

There are lots of lawyers and lots of different kinds of law out there. Some lawyers do a bit of everything, others choose to focus their careers and practice on one particular area of law. The lawyer who has experience in family law, and doesn’t do much else in other areas of law, is going to be more up to date with the law, and know more about the process you need to follow. This means that they will guide you through the process, and will know how to avoid expensive issues and mistakes.

Be prepared and be prompt

If you are asked to provide information to your lawyer, do it, and make sure you do it in an organised way. The more you are able to prepare and organise your own information, the less time your lawyer has to spend doing it for you, and this will ultimately save you fees. The less preparation you do upfront, the more changes your lawyer will need to make later, which leads to stress and increased fees for you.

You should also try to get back to your lawyer in a reasonable time frame when they ask you for information. Most lawyers have at least 100 different clients, and that’s a lot of different lives and different stories to be on top of. If it takes you three or four weeks to get back to your lawyer and answer their questions, it is going to take your lawyer an hour just to figure out where your matter was last up to and what needed to be done next. This will ultimately increase your fees. If you respond promptly, your lawyer will be able to get on with your matter straight away, which will not only save you costs but also mean that more progress is getting made in your matter sooner.

Be honest with your lawyer

Your lawyer can only prepare for what you have told them in your case. So if there is something that your lawyer needs to know, you should tell them even if in your mind its irrelevant to your case, or its ancient history. Chances are that it isn’t relevant, but if we don’t know about it we can’t prepare for it. For a lawyer one of the worst things is being in court and finding out information about your client that is important and needed to be considered in the case.

The advice that you are given is only as accurate as the information that you give

As well as being honest with your lawyer, it is important that remember that lawyers can only give information on what is in front of them. If you fail to provide clear information and instructions to your lawyer, you are limiting their capacity to represent you to the best of their ability. If you want success in your matter, you should clearly communicate your instructions, and provide your lawyer with all the information that they need to prepare the best case for you.

Don’t try to be clever

Don’t try to be clever and ‘outsmart’ the system or the other side. We are lawyers, we know the system inside out, and so does the other lawyer. The system is specifically designed to catch out people who think that they are clever so don’t try to manipulate facts to suit your case. Don’t ‘accidentally’ leave out information from your lawyer because you think no one will ever find out because someone will and when they do, you will have lost all credibility and almost any chance you had of convincing a judge that they should make a decision that favours you.

Trust the advice that you are being given

It is your lawyers’ job to provide you with legal advice, and sometimes, you won’t like what that advice is however you need to trust that your lawyer knows what they are doing and telling you for a reason. It’s also important to remember that just because your friends-sisters-boyfriends-aunt had one outcome in her property settlement, doesn’t mean that you will have the same one. Your lawyer is giving you advice based on your circumstances and your instructions. Your lawyer is always trying to put you in a position to make informed decisions in your case, and guide you through the most successful case that you can have.

Be open to alternatives and to a settlement

Remember that court is not the only option to resolve a dispute and that there are alternatives to help you reach an out of court settlement, which is usually better for everyone. Even if a settlement means compromising, your lawyer should help you consider what this will mean for you in the grand scheme of things. If you listen to what your lawyer says, and properly weigh up your options, you may find that a small ‘loss’ now will give you the freedom and finances that you need to move on to a successful and happy life.

If you are going through a break up or have recently ended your relationship, and want to know more about moving through this stage of your life, please contact us.

Need professional advice with regard to Family Law? Contact us today.