It is possible to apply to the Court to remove the Habitual Offenders penalty and indeed recently we were able to convince a Magistrate to remove two (2) such penalties from one of our client’s licences, thus enabling him to return to driving approximately ten (10) years earlier than he would otherwise have been able to do.

If you are charged with a driving offence and you have had a least two (2) previous convictions in the five (5) years leading up to the recent offence then you should seek advice as to whether you will be subjected to the additional Habitual Offender penalty. When the Court is dealing with the most recent offence, it is possible for the Court to anticipate the imposition of the Habitual Offender penalty and to pre-emptively remove it.

Alternatively, after the Court has imposed a conviction, and the Habitual Offender penalty has been imposed, it is possible to apply to the Court to remove the extra penalty.

Mobile Phones

The first thing to realize is that the new Rules only apply when the vehicle is moving or stationery but do NOT apply when the vehicle is parked. So, if the motor is switched off and you are parked, then you can use the phone.

The general position is that a driver may only use a mobile phone to make or receive calls, (or use the audio-playing or GPS function) if the mobile phone is secured in a fixed mounting, or if the mobile phone can be operated without being touched in any way.

If you have the phone mounted in a fixed mounting, it is legal to use the phone so long as it can be used without being physically touched by the driver. These days the technology is such that a lot of things can be done by voice command and if the phone is in a fixed mounting and the driver is not physically touching the phone but using voice command then there is no illegal action occurring.

However, a technical reading of the Rules would mean that it is still probably illegal for the driver to read messages even if the phone is mounted.

A driver can hold a phone to pass the phone to a passenger, however, if the driver holds the phone or touches the phone for any other purpose, then the driver is committing an illegal act.

Because the driver is not allowed to “touch” the phone, it would be unlawful for the phone to touch any part of the driver’s body (so it can’t be rested in your lap) unless you are touching it in the process of handing it to a passenger.

Learner and Provisional P1 drivers are not allowed to use ANY function of a phone—including hands free operation while driving or stationery. However, again, there is no illegal act occurring if the vehicle is parked.

The penalties for breaking the new mobile phone regulations is a loss of 3 demerit points and a fine of $298.00 (or a loss of 4 demerit points and a fine of $397.00 if the offence occurs in a school zone).

Roundabouts

The main features of the current version of the Rules are:-

Drivers entering a roundabout and intending to turn either left or right must give sufficient warning to other road users by signalling before entering the roundabout.

If there are arrows on the road pavement which indicate which direction you must travel in any particular lane, then you must follow or obey those markings.

No matter which way you are proposing to enter or exit a roundabout, you are required to give way to all vehicles, including bicycles, already in/ on the roundabout. Only enter when there is a safe gap to do so.

If you are going to turn left, you must give a left turning indication before entering the roundabout and you should enter the roundabout from the left hand lane and stay in that lane. You should indicate that you are making a left turn as you exit the roundabout.

If you are going to turn right, or you are making a u-turn then you have to indicate that you are turning right before you enter the roundabout and you have to stay in the right lane and then when you are exiting the roundabout you have to indicate as if you are making a left hand turn.

If you are going to go straight ahead then you can use either lane to enter the roundabout and as you are exiting you need to indicate as if you are going to make a left hand turn.

The penalties range from two (2) demerit points to four (4) demerit points and a fine of between $165.00 and $397.00 in the case of motor cars. For heavy vehicles, the fine can be as much as $1,191.00 and for cyclists $66.00.

An explanatory brochure in regard to Roundabouts can be downloaded from the internet by going to www.rms.nsw.gov.au.

The ‘Death Benefit’ payable from your superannuation policy is generally NOT covered by your Will.

In most cases, the death benefit is payable either in accordance with any specific written instruction you give to your Super Fund (called a “Binding Nomination”). If you fail to give such an instruction, the Trustee of your Super Fund can pay out to whoever they think it should be paid.

The binding death nomination has to be valid in order to be effective in forcing the Trustee of the Super Fund to do what you want them to do. Even perfectly valid nominations expire after three (3) years and have to be renewed every three (3) years.

The form used, the way the form is signed, witnessed, etc, has to be strictly in accordance with the requirements of your superannuation fund’s rules otherwise the nomination will not be valid.

If someone was able to succeed in having a Court declare your binding death nomination invalid, then they can ask the Super Fund Trustee to pay the death benefit to them, and the Trustee has the power to decide who the money will be paid to.

If a person dies and they have a library consisting of actual hardcopy books or CD’s (or even vinyl records) then they can easily leave the physical items in their Will to named beneficiaries. In the case of e-books and downloads however, there is a real question as to who is the owner of the item. It may seem to most people that the person who paid for them is the owner, but, in fact that person is probably only paying for a licence to read the books or listen to the music and not obtaining an interest in the property itself. The best solution at this stage I think is to leave the e-book reader, or other device to somebody “along with its contents”.

A possible solution to that sort of issue is for the person to keep the details of the password in the Security Packet/Envelope where they keep their Will.   If you are in this type of situation then we would urge you to forward to us the password information so we can keep it in your Security Packet along with your Will (presuming you have a Will).

During the Christmas break you can contact a solicitor on 0414 529-828 for urgent matters, such as bail applications or conveyancing contracts that exchange during the Christmas break.

The staff at Coode & Corry wish all their clients a Merry Christmas and a Happy New Year.

However, once an Application has been filed at Court, then procedures take over which make it difficult to stop the process. It happens in most relationships that there will be a time when somebody says something or does something which they later regret and which both parties in the relationship wish to simply put behind them. On a number of occasions, I have seen, however, the Police proceed to seek Court Orders in situations where everyone involved in the domestic relationship don’t want the Court to be involved.

Where an incident occurs which appears to be an isolated or one off incident, and where the extent of the “violence” is very limited, it would probably be much better for everyone if Court Orders were not involved.

In a number of cases recently we have been able to successfully deal with situations so that ultimately even though the Police refuse to withdraw the Court proceedings, the proceedings have been dismissed and no final Orders made by the Court. This is not easy to do, and it requires careful thought as to how to approach the Court proceedings, but if it is successful, the benefits for everyone involved can be well worth the effort and time involved.

Additionally, it is possible to apply to the Police for them to withdraw the Court proceedings altogether.

We are happy to see anybody in this situation for an initial, free of charge, interview so that we can try and give some advice as to how to approach the situation.

The other thing that you can do to try and ensure that your wishes are followed in regard to Organ Donation, is to have something firstly, in your Will that states that you wish to be an Organ Donor and secondly, have something put into your “living Will”, namely your Enduring Guardianship document.

We can assist you with having something inserted into your Will and/or your Enduring Guardianship and indeed if you do not have a Will and/or an Enduring Guardianship we would be happy to explain to you what is involved with these documents and to prepare any necessary documents on your behalf.

Decisions about ownership of assets, such as real estate, are best made at the time that the asset is purchased or at a time when the business is not on the brink of failing If a married couple is concerned because one of them owns and runs a business, then the time to talk about asset protection is now, not when the business is in trouble. Bruce Coode of this office has been looking after property purchases for 35 years and is very experienced in the area, if you are purchasing a property and want to discuss your options, please make an appointment to see him.