In February this year McLaughlins sponsored the first of what it hopes will be a regular annual sponsorship of the Bond University Law Students Association Witness Examination Competition.

This included the Closing Remarks Competition for law students in their first or second semester which involved students preparing closing remarks of either the prosecution or defence case in a criminal trial.

The main event was the Witness Examination Competition involving two participants for each session with 40 minutes individual preparation, 20 minutes of time with the witness, and 45 minutes in Court.  The Court session involved opening statements, an examination in chief and cross-examination for both witnesses, as well as closing statements.

The Closing Remarks part of the competition was so close that two winners were announced, Lucy Hopkinson and Gabrielle Morris.

The Witness Examination Competition trophy was awarded to Matthew Hartsuyker.  Matt has won the opportunity of two weeks legal work experience with McLaughlins and we look forward to working with Matt shortly.

The Queensland Parliament passed the Criminal Code (Abusive Relationships Defence and Another Matter) Amendment Bill on 9 February 2010.

The passing of the Bill follows the 2008 Queensland Law Reform Commission review of the defences of accident and provocation.  The QLRC recommended the development of a separate defence of battered persons.  Bond University was commissioned to prepare a Report Homicide in Abusive Relationships: a report on Defences.

This report identified the inherent unfairness associated with the lack of sentencing discretion when the victim of serious domestic violence is convicted of murder.  Prior to the introduction of this Bill the Criminal Code looked, not at the reasonableness of the offender's actions, but whether the "ordinary person" would judge the actions as unreasonable or excessive.

The Bill introduces a new section 304B into the Criminal Code which contains the partial defence of "killing in an abusive relationship".  The defence is available to those who are the subject of serious domestic violence, but commit the offence in circumstances that fall outside existing defences such as self-defence and provocation.

The effect of the new section is that once the defence is raised the prosecution is required to negative, beyond reasonable doubt, that the act occurred outside the provisions of section 304B.  If they are unable to do so the accused will be found not guilty of murder, but guilty of manslaughter.  Under section 305 of the Criminal Code a person found guilty of murder must be sentenced to life imprisonment whereas section 310 provides for a maximum penalty of life imprisonment for manslaughter.  Thus a person found guilty of manslaughter under this section is able to receive a lesser penalty consistent with their culpability.

The legislation requires that an accused would be not guilty of murder but guilty of manslaughter in the following circumstances:

1. the deceased has committed acts of serious domestic violence against the person in the course of an abusive relationship; and
2. the person believes that it is necessary for the person's preservation from death or grievous bodily harm to do the act or make the omission that causes death; and
3. the person has reasonable grounds for the belief having regard to the abusive domestic relationship and all the circumstances of the case.
   

The Queensland Law Society has advised that as at 13 February 2010, the Federal Magistrates Court of Australia will be changing the form of document that is issued by the Court when a divorce order becomes final.

The current Certificate of Divorce has resulted in difficulties being encountered in foreign countries as the current Certificate of Divorce does not state that each of the requirements for divorce has been satisfied.

The difficulty arises for those who wish to re-marry in other countries where they do not recognise the current Certificate of Divorce.  Therefore all divorce orders produced after 13 February 2010 will now state that the Court is satisfied with each requirement for divorce as set out in the Family Law Act 1975 and will incorporate a certification that the divorce order has taken effect one month and one day after the divorce order was pronounced.

If you have any queries in relation to a recently issued Certificate of Divorce we invite you to contact our Family Law Partner, Sophie Pearson.

McLaughlins has expanded to criminal law and has appointed Michael Gatenby as the head of McLaughlins' new Criminal Law Division.

Michael comes to McLaughlins with an extensive history in representing his clients successfully in all criminal law matters as well as traffic matters and various prosecutions including ASIC, ATO, Coronial inquests and Commission of Inquiry.

McLaughlins is delighted to welcome Sonaaz Farhadi-Fard to the McLaughlins team.  Sonaaz has been appointed as a graduate lawyer at McLaughlins having completed her law degree and graduate diploma in legal practice training at Bond University.  Sonaaz is also in the final stages of completing her Master of Laws and will be admitted as a solicitor in early 2010.

Sonaaz will be working under the guidance of Ian Kennedy, Sophie Pearson and Jennifer Cassar.

McLaughlins also welcomes Neil Arora to McLaughlins as a law clerk, having completed his law degree at Bond University.  Neil is undertaking his practical component of the graduate diploma in practical legal training with McLaughlins and has a special interest in property law and litigation.

New legislation has been introduced in Queensland requiring all sellers and real estate agents to complete a Sustainability Declaration prior to listing a house, townhouse or unit for sale from 1 January 2010.

Houses cannot be advertised for sale unless it is declared where the Sustainability Declaration for the property in question can be viewed.  Information as to where the Sustainability Declaration can be located must appear on the advertisements (being online listings, real estate agency window pane advertisements, letterbox drops of advertising materials and all other forms of advertising) and be available at open inspections.

The sustainability Declaration addresses dwelling's sustainability features in four areas being energy, water, access and safety.

A Sustainability Declaration is also required for all properties that have been listed prior to introduction of the new legislation and remain unsold at 1 January 2010.

Currently there are no requirements for such reporting for commercial buildings.

Failure to complete the Sustainability Declaration can result in a fine.

Offering rebates, discounts or cash-backs when selling your property or accepting the same when purchasing the property and not declaring the discounted amount on the transfer documents may be found to be an attempt to defraud the financier.  In addition to such practice constituting fraud, if the information is not correctly disclosed it can distort information that is relevant to valuations of future property transactions.

The Queensland Government has introduced a bill to refer its powers in relation to making laws on industrial relations to the Federal Government.

The Federal Government currently only has powers to regulate industrial relations in relation to corporations.

This bill will enable Queensland to participate in a national system of industrial relations for all private sector employers and their employees from 1 January 2010.

This will remove the confusion for employers and employees about whether or not they are covered by the State or Federal workplace relations system and result in greater efficiency by having a single Australian industrial relations system.

The Law Council issued a timely reminder through their recent media release on 13 October 2009. The President, Mr Corcoran said:
"People should not be fooled into thinking that agreements they have drafted themselves can be legally enforced  if they have been entered into without the appropriate legal advice. They are very important documents and the need to obtain independent advice is there for very good reasons."

Binding Financial Agreements can be set aside for various reasons apart from the lack of independent legal advice including changes in circumstances such as the birth of children and acquiring or disposing of assets. Agreement such as these should be reviewed regularly to ensure they are circumstantially up to date and compliant with the Family Law Act 1975.

For all queries on Financial Agreements (both Marital and De facto), please contact our Family Law Partner, Sophie Pearson.

A new online tool has been launched at www.familyseparation.humanservices.gov.au and is titled "My family is separating - whatnow?".

Minister for Human Services Mr Chris Bowen, in a recent media release, has said the website has been "tailored to suit different family circumstances and will provide separating or separated familes with information and advice to help them work through these complex matters."

The website addresses issues of support such as emotional, family violence, financial and legal support and contains many helpful links and contact details for various services available to assist families and individuals upon the breakdown of a relationship.