MENU
Home Our Team Testimonials Resources Articles Newsletter FAQ Contact

FAQs

General Criminal
Divorce Property Children Child Abduction Child Support
Binding Financials
Wills
Challenging Of Wills
Probate
Traffic Infringements
What happens if I drive when I am over the limit? Who is subject to a 0.05 BAC limit? Who is subject to a 0.02 BAC limit? What is a recently disqualified driver? What is a novice driver? Who is subject to a 0.00 BAC limit? Is there a legal BAC limit? What is blood alcohol content or BAC? Do I need to be represented by a lawyer in court if I am charged with a traffic offence? Where can I get legal advice about my traffic charge? Do I have to attend court if I am charged with a traffic offence? What penalties can apply if I am convicted of a traffic offence? What should I do if I am charged with a traffic offence? If my vehicle has been impounded or confiscated, will I get a more lenient penalty from the court? What happens to the vehicle after it is confiscated? When can a court order the confiscation of a vehicle? What if I am not charged or the charge is dismissed? What happens if I do not pay these costs? When will the impounded vehicle be released? Are there any costs that have to be paid when a vehicle is impounded? Is it possible to get an impounded vehicle back early? When does the impounding start and finish? Is anyone given notice after a vehicle is impounded? What happens when the vehicle is being impounded? When can a court order the impounding of a vehicle? How long can the police impound the vehicle? Who is the “responsible person”? When can the police impound the vehicle I was driving? What offences can result in the impounding or confiscation of a vehicle? What should I do if I think I will be disqualified from driving? If I am fined will I be given time to pay? Will my licence be cancelled if I am a P-plater? Is there any drink or drug driving offence I won’t be disqualified for? Can I ask the court not to fine me and not to disqualify me from driving? What penalties can apply if I am convicted drink drinking or drug driving? What should I do if I am charged with drink or drug driving? Do I have to do a driver assessment test or do a blood or urine test for drugs? Do I have to do a breath, blood or urine test for alcohol? Do I have to do a preliminary breath test for alcohol? What is drug driving? What is drink driving? What is impounding? What is confiscation?
Sentencing
Legal Fees

Can grandparents see their grandchildren after their parents have separated?

After separation, most grandparents see their children with the agreement of the children’s parents. If that is not possible, grandparents can apply to the Family Court for an order for their grandchildren to spend time with them.

The Family Court recognises that grandparents and other family members are significant to the care, welfare and development of children.

If you are having difficulty seeing your grandchildren, contact our family lawyers for advice. In most cases our family lawyers are able to help you negotiate arrangements which are workable for everyone.

Do I need to attend Court for my Divorce?

No – If you do not have children under 18 years of age, and you have followed the correct process for notifying the other party of the Divorce (served to Divorce application on them correctly).

If you have children under 18 years of age, one of you will need to attend Court to satisfy the court that the arrangements for the children are appropriate.  LB&H can attend on your behalf.

If I get divorced, will decisions be made about my children and property at the same time?

No, divorce is a separate process from:

Parenting and children’s arrangements

Child support

Property settlement

Spousal maintenance.

If I was married overseas can I get divorced in Australia?

Yes, provided you or your spouse:

Are an Australian citizen or

Regard Australia as your home and intend to live here indefinitely as a citizen or resident, or

Ordinarily live in Australia and have done so for the last 12 months.

If your marriage certificate is not in English, you will have to provide the Court with an authorised translation.

At present, Australian law does not recognise gay marriages or lesbian marriages even if they are legally valid overseas

Can I get divorced if I am still living in the same house as my ex?

As long as you have been separated for 12 months, you can apply for a divorce. This applies even if you and your spouse are still living in the same house or have not been living in separate houses for a full 12 months. However, in this case, you and a third person will need to file supporting affidavits, with the Court.

LBH recommend that our experienced family lawyers assist you with the application in this situation. Contact Sue Holgate on sholgate@lbandh.com.au

How do I apply for a divorce?

Applications for divorce are made to the Family Court of Western Australia.

You can lodge the divorce application yourself, or we can assist you with this. A Divorce can be applied either jointly with the other party or separately.  If you apply for a Divorce separately, you will need to comply with personal service requirements on the other party.

When can I get Divorced?

You must be separated for at least 12 months before you can apply for a divorce. But you do not need to wait until then to work out arrangements for children and a property settlement. If you get Divorced you should seek advice about property settlement as time limits then apply for property settlement.

What documents will my lawyer need to provide advice?

You will need to have any documents which proves either the valuation of an asset or a contribution to an asset.

Typically, you will be required to provided your tax returns, pay slips, bank statements, loan agreements, superannuation statements.

How does the Court value our property?

Parties can agree on the value of the property. However, if the parties cannot agree on the value of property the court will usually appoint a court expert. For example, for real estate a licensed valuer will be asked to prepare a valuation.

If I cannot reach agreement with my spouse, how will the court decide how to divide the property?

The Family Court will apply a 4 step process for it to determine whether it is fair and equitable to alter the existing property entitlements. The steps are:

1. Identify the assets and liabilities between the parties. This is assets and liabilities in joint names or either name of the parties. This is commonly referred to as the ‘property pool.’

2. Look at the contributions to the assets and liabilities. The Court will look at the contributions before, during and after separation. Contributions can be financial or non financial.

3. Look at the future needs of each party. Some factors considered are the health and age of the parties, whether one of the parties has the care of the children, the qualifications and earning capacities of the parties.

4. Whether the interests would be divided and how theses interests should be divided.

Do I have to get Family Court orders about my property settlement?

No, you do not have to get Family Court Orders but LB&H strongly recommend that you do obtain Orders.

Agreements which are not reflected in a formal agreement are not binding on the parties. That is, either party could come back for another bite of the cherry at a later date if they decide they are not happy with the way the assets were divided.

What is considered property for the purposes of separation? Is there any difference if I was married or in a defacto relationship?

The short answer is anything which has a value.

The only difference between married couples and defacto couples for the purposes of property settlement in Western Australia is how to deal with superannuation. Superannuation is an asset for married couples.

The superannuation can be split between the parties. Superannuation of defacto couples is a resource, we do not have the laws in Western Australia for de-facto couples to allow splitting of superannuation.

Everything is in my former partner’s name – can I still get a property settlement?

Yes.

Are there any time limits to getting a property settlement?

Yes. If you are married you can apply for a property settlement any time PRIOR to divorce. However once you are divorced you have 1 year from the final date of your divorce to seek the assistance of the Family Court for property, without having to seek leave.

If you are in a de-facto relationship, you have 2 years from the date of separation to seek the assistance of the Family Court, without having to seek leave.

Is property divided 50/50 after separation?

No. The law in Australia is based on a number of factors including contributions made by each party and the future needs.

Who has to pay the mortgage/rent/bills if one of us moves out of the house?

This will depend on the circumstances of the parties. For example, if one party lives in the house and is earning a good income, they would usually be responsible for the mortgage as they have the benefit of the property.

However, if a party is left in the house and they are not the primary income earner, then the other party may still be required to pay the mortgage even though they do not have the benefit of the property.

If the mortgage is in joint names, then both parties need to be aware that any default of the mortgage may result in a bad credit rating for both parties.

Can I see my grandchildren now that their parents have separated?

After separation, most grandparents see their children with the agreement of the children’s parents. If that is not possible, grandparents can apply to the Family Court for an order for their grandchildren to spend time with them. The Family Court recognises that grandparents are significant to the care, welfare and development of children.

If you are having difficulty seeing your grandchildren, contact our family lawyers for advice. In most cases our family lawyers are able to help you negotiate arrangements which are workable for everyone.

What rights do I have as a parent?

The Family Law Act focuses on the rights of children, not of parents. The object of the Act is to:

Protect children from physical and psychological harm, neglect and violence

Ensure children to have meaningful relationships with both their parents, to the extent that this does not compromise children’s best interests

Ensure children receive proper and adequate parenting

Ensure parents fulfil their duties and responsibilities.

As a parent, unless there are issues of abuse or violence, you can reasonably expect to:

Have ongoing involvement in your children’s lives

See your children regularly, including on weekdays, weekends and school holidays and

Be involved in ongoing decision making about your children.

What can I do if our children do not want to see the other parent?

Under the Family Law Act, a child has a right to know and be cared for by both their parents, to the extent that this does not compromise the child’s best interests.

If a child does not want to spend time with the other parent, it will be important to find out why. The child’s views are one of the many things the Court has to consider when deciding parenting orders. However, this consideration will be in the context of the age and maturity of the child and whether anyone else is influencing the child’s views.

The Court may decide a child should not see the other parent, or put limits on the child’s contact with the other parent, if it will put the child at risk of violence or abuse.

Who will be given parental responsibility for children?

There is a presumption that both parents have equal shared parental responsibility for children, even if the children are mainly living with one parent. If parents have equal shared parental responsibility, this means that decisions about long term issues such as education, health and religion must be made by the parents together.

In exceptional cases, for example if there has been violence in the relationship, the Family Court may make an order that only one parent have parental responsibility for these decisions.

Decisions about the day to day arrangements, like what the children should eat or what they should wear, is usually made by the parent who has the care of the children.

How do I obtain custody of our children?

The term “custody” is no longer used by the Family Court. When people talk about ‘custody’ they are usually referring to who children will live with and who will make decisions about children.  These are two very different questions for the Court.

Making decisions about your children is referred to as ‘parental responsibility.’ There is a presumption that both parents will have shared parental responsibility unless there are exceptional circumstances.

The other issue then is how much time the children will spend with each parent. These are commonly referred to as “live with” and “spend time with” orders.

If parents cannot agree on these issues, you will first need to attend compulsory Family Dispute Resolution. If you still cannot reach agreement you can ask the Court to decide. The Court must give paramount consideration to the children’s best interests when making a decision. The Court must consider a range of factors when deciding what is in a child’s best interest.

Do children have to spend equal time with each parent?

No, research shows that it is only is a very small number of cases that it is in the best interests of children to spend equal time with both parents.

It is always best if you as parents can reach an agreement between you which is the best arrangements for the children.  In doing so, you should both stay focus on the needs of the children and not what you want.

If you as parents cannot agree on arrangements for your children, with or without the assistance of Family Dispute Resolution, you can ask the Family Court to decide.

While the family law provides that the Court must consider equal time, the court will consider what is in the best interests of the children. The Court may decide that it is in the best interests of the children to spend equal time with each parent, but this is not necessarily the case.

Whenever pick up our children, I end up arguing with the other parent, and I am concerned how this is affecting our children. How can I stop this?

Due to the ongoing anger and bitterness of some separations, picking up and dropping off children can sometimes be the point at which tensions flare up. Research shows that witnessing such disputes between parents can have a harmful effect on children.

The first step if you wish to prevent this harm from occurring is to attempt to reach an agreement with the other parent not to argue in front of your children. If there are issues that need to be discussed, agree to talk about them at some other time when the children are not present, for example on the telephone when the children are in their beds asleep.

If this does not work, you could consider using a drop-off centre in your area. These centres allow parents to drop off their children for collection by the other parent at a safe place, so that the parents do not have to come into direct contact.

Anglicare offer a course known as ‘Mums and Dads Forever’. Both parents should agree to attend.

What can I do if I am concerned that my children are not being care for properly?

The first step if you are concerned about the way the other parent is caring for your children is to discuss the issue with them.

You are much more likely to get a satisfactory result if you approach them in a spirit of concern rather than blame. The following are some tips:

State your observations factually rather than emotively. Don’t exaggerate, but just state what you have noticed that concerns you.

Avoid blaming language and generalisations (“You never…” “You’re a bad mother/father/ a slob etc.”)

Focus on solutions rather than problems.

Rather than looking for the other parent’s faults, focus on what support they might need to care for the children better. Can you help in any way? Are there any community services that could assist?

Try to reach a plan together.

Agree to meet again to see how things are going and whether the plan is working.

Obviously, in many situations, such ideal communication will not be possible due to many factors, including all the ‘baggage’ of your past relationship together. If you are unable to make any progress on the issue together, you could suggest seeking the services of a mediator to help you reach an agreement on a way forward.

If you have serious concerns which you are unable to resolve, you might wish to approach the Department of Child Protection (DCP). If DCP believe there are genuine concerns a caseworker will be appointed to your case to assist in developing a plan to support the other parent to provide better care for your children.

Finally, if you have grounds to believe that your children are at serious risk or are being harmed or neglected by the other parent, in addition to contacting DCP you may need to make an application to the Family Court.

What can I do to get more time with my children?

It is important to try to remain civil with the other parent for the sake of the children.  Also you should always remember that any arrangements need to be considered in the best interests of your children, not the parents wishes.

When you want to change the arrangements for the children, you should begin with an informal approach to the other parent to discuss the issue and request the changed arrangements. In the event that they refuse to discuss the matter, you need to attend upon mediation with a Family Resolution Practitioner (FRP). 

FRPs are listed online.  There are private FRPs, which are generally more expensive but a lot quicker to obtain an appointment, and government funded FRPs. There is usually a very long waiting list to see a government funded FRP.

A FRP is a neutral third party who will try to assist you both to reach a mutually acceptable arrangement for the children.

If you cannot reach an agreement with the assistance of the FRP, they will issue you with a certificate.

As a last resort, you will be able to make an application to seek the assistance of the Family Court to change your arrangements for the children.

How can I find out if I am the father of a child?

The answer depends on whether or not the mother of the child agrees to undertake DNA-testing.

There are two types of DNA testing which you can do. A ‘peace of  mind’ DNA test can be undertaken with just your DNA and the DNA of the child.  However, this type of test is less reliable and not accepted as evidence in the Family Court.

If you need to rely on the DNA testing for any formal proceedings, the DNA of the mother, the child and you will be required. In the event that the mother agrees to provide a sample, and gives permission for a sample to be taken from the child, there are a number of private companies that provide paternity-testing services.

You can choose to have a test that will be accepted as evidence of paternity in court, or the  ‘peace of mind’ test. Legally admissible tests cost more because the DNA samples must be collected by an independent agent and there are more rigorous procedures.

If the mother of the child is not willing to provide a sample, you may be able to obtain a court order through the Family Court.

You will need to seek legal advice about the correct procedure to obtain this order. You may have to establish a case for why you believe you may not be the father.

My application has been refused. Can I appeal the decision?

If the Australian Central Authority has refused to accept your application for the return of your child to Australia, there are steps you can take to have the decision reviewed. Contact LBH for advice on your options.

What if my child is in a non-Hague Convention country?

The Australia Central Authority can only help you with a return or access application if your child is in a Hague Convention country or in Egypt or Lebanon. If your child is in another country, you should contact LBH about your options.

What is ‘acquiescence’?

If someone ‘acquiesces’ to something, they consent to it or allow it to happen.

Under the convention, one of the reasons a court may decide not to return a child to Australia is if the court believes the applicant ‘subsequently acquiesced’ to the removal of the child from Australia, or their retention in the other country.

It is up to the court to decide what constitutes ‘subsequent acquiescence’ and whether or not the applicant did in fact acquiesce.

However, common actions that may raise a question of acquiescence include:

Engaging in court proceedings in the country where the child is located, apart from those in relation to the Hague Convention application (this may indicate that you give permission for the child to remain in that country, or that you have ‘submitted to the jurisdiction’).

Providing verbal or written agreement to the abducting person that you consent to the child being taken to, or remaining in, a country (either before, during or after the removal or retention).

Helping the abducting person make decisions about the child’s living arrangements in the other country, such as where the child should live or go to school.

Any other action which may indicate that you give permission for the child to remain in the country they have been taken to or held in.

When might the other country not return my child?

A court in the other country may refuse to return the child if:

It is not convinced that the key requirements of the convention have been met

It determines that you (the applicant) had agreed to the child being taken or kept in that country, or subsequently acquiesced (see below) to the removal or retention

The child has been in that country for more than twelve months and is settled there

The child objects to being returned and is old enough and mature enough for their opinion to be considered

Returning the child would expose them to a grave risk of physical or psychological harm, or some other intolerable situation, or

Returning the child would breach their fundamental freedoms and human rights.

Is financial assistance available?

Neither Australian Central Australia, nor International Social Service (ISS) Australia, charge for the work they do with an application. However, depending on which country your application is going to, the costs of running your matter in that country may not be covered by the central authority of that country.

Where that happens, you may be able to apply for legal aid in the other country. You may also be able to apply for financial assistance from this department under the Overseas Child Abduction Scheme.

How long will it take to get my child back?

There is no definitive timeframe for a Hague case. Each application must be reviewed on its own merits, and each foreign country has its own processes, procedures and timeframes. The length of time will depend on factors such as whether a voluntary return occurs, whether the application proceeds to court, and whether the decision is appealed.

What is the process once I make my application?

Once the Australian Central Authority (ACA) receives your application, they will:

Assess it on its merits against the criteria under the convention

Let you know whether they accept your application, and provide reasons if they refuse it.

If ACA accept your application, they will then forward it to the authority in the country where you believe the child to be.

The central authority in that country is responsible for managing your application under the Hague Convention. ACA will liaise with them and keep you updated on your case. ACA may ask you for more information if the other country asks for it.

The central authority in the other country determines how they will progress your case. Commonly, they may contact the abducting person and seek the voluntary return of the child to Australia, and then file your application in the relevant court of that country for a decision if a voluntary return is not made.

ACA cannot interfere with the processes or court cases in the other country. It is their responsibility to initiate and facilitate any legal proceedings. Like in Australia, the courts in most other countries are independent of government. Neither ACA, nor the central authority of the other country, can change a decision of a court.

Should I try to have my child returned voluntarily?

Having your child returned to you voluntarily can save long and costly legal cases. LB&H encourage, where appropriate, parents to keep trying to reach an agreement with the person who has abducted their child, even if the parent has already made a formal application to the Australian Central Authority.

However, you should be aware of the time these discussions take. The longer a child lives in a new country, the more difficult it may be to get an order to have them returned. Your child may have become settled in the other country. In this case, a court may decide that the child should not be returned even though they were abducted from Australia.

You should also be careful about any agreement that your child can remain with the other parent subject to certain conditions. Agreeing that your child can stay in the other country may mean that the child acquires that country as their country of habitual residence. Once you agree to your child living in their new country, you cannot apply for their return to Australia under the Hague Convention—even if the other parent does not comply with conditions you may have agreed to (such as access or contact arrangements).

You should also be aware of any other actions or agreements that may lead to a court finding that you have acquiesced to the child remaining in the new country.

LBH recommend that ‘left-behind’ parents, engaging in negotiation or mediation with the person who has abducted their child, seek legal advice to assist in your discussions.

How do I get my child back from a Hague Convention country?

If you believe your child has been wrongfully removed from Australia, or wrongfully retained overseas, in a Hague Convention country, you can apply for the return of your child under the Hague Convention.

What happens if I drive when I am over the limit?

If you are found to be driving with more than the allowable amount of alcohol in your system, you are committing an offence of drink driving under the Road Traffic Act 1974 (WA).

The offence you are charged with will depend on the actual amount of alcohol found to be in your system at the time of driving, that is the BAC reading. The fine and loss of license increases as the BAC reading increases and the penalties may increase if it is your second or subsequent offence.

If you dispute the amount of alcohol said to be in your system at the time of driving, or you think you have been charged with a drink driving offence that is based on the wrong BAC limit, contact Steven Blyth, partner at LBH on sblyth@lbandh.com.au

Who is subject to a 0.05 BAC limit?

Every driver who is not subject to a 0.00 BAC limit, is subject to a 0.05 BAC limit. This means that you are legally allowed to drive as long as you have a BAC of less than 0.05.

Who is subject to a 0.02 BAC limit?

If you are subject to a 0.00 BAC limit you will also be subject to a 0.02 BAC limit (both limits apply to the same people). If you are subject to a 0.00 BAC limit and you provide a BAC reading between 0.02 and 0.05 you may be charged with an offence of excess 0.02 BAC rather than an offence of excess 0.00 BAC.

The Police may prefer to charge you with an offence of excess 0.02 BAC rather than an offence of excess 0.00 BAC as a conviction for an offence of 0.02 BAC attracts a mandatory licence disqualification and a conviction for an offence of excess 0.00 does not.

What is a recently disqualified driver?

You are a recently disqualified driver if, within the last 3 years, you:

Ceased to be subject to an order disqualifying you from holding or obtaining a driver’s licence for DUI, failing to comply with a request for a test or for a second or subsequent excess 0.08 BAC offence, or

Have been re-issued a driver’s licence that had previously been cancelled for prior drink driving offences.

What is a novice driver?

A novice driver is someone who has held a licence for a period of less than two years.

This two year period does not include:

Periods when you were excluded from driving by law, or

The period when you were driving under a learner’s permit (also called, ‘L-plates’).

If you have held a licence issued in another State this time period will count when working out whether or not you have held a licence for two years.

Who is subject to a 0.00 BAC limit?

The 0.00 BAC limit, meaning that you are not allowed to drive when you have any alcohol in your system, applies to all novice drivers and whether:

Your driver’s licence is currently disqualified for an offence of driving under the influence DUI

Your driver’s licence is currently disqualified for failing to comply with a request to take part in a breath, blood or urine test

Your driver’s licence is currently disqualified for a second or subsequent 0.08 BAC offence

Your driver’s licence has been cancelled as a result of a conviction for DUI, driving impaired by drugs, failing to comply or refusing a driver assessment or sample request and have been previously convicted of DUI, excess 0.08, driving impaired by drugs, failing to comply or refusing a driver assessment or sample request

Your driver’s licence has been cancelled as a result of a conviction for excess 0.08 where you have been previously convicted for DUI, excess 0.08, driving impaired by drugs, failing to comply or refusing a driver assessment or sample request in the 5 years preceding the conviction for excess 0.08

You hold an extraordinary driver’s licence, and you are a recently disqualified driver.

You will also be subject to a 0.00 BAC limit if you drive a motor vehicle that:

Can carry more than 12 adults (including the driver) and at the time you are carrying passengers

Is an omnibus and you are carrying passengers for hire or reward

Is a taxi (with taxi plates or a taxi licence) and at that time you are carrying passengers for hire or reward

Has a gross combined mass exceeding 22.5 tonnes, or

Is a specific vehicle carrying dangerous goods.

If you are on P-plates but you have held a licence in Australia or anywhere else for a total period of 2 years or more, then you are not a novice driver and you will not be subject to a 0.00 BAC. Instead, you are subject to a 0.05 BAC limit.

Is there a legal BAC limit?

Depending on the type of licence you hold and the current status of your licence, you will have a particular legal limit on the amount of alcohol you are allowed to have in your system when you are driving.

If you have been charged with driving with alcohol in your system you should contact Steven Blyth, Partner at LBH on sblyth@lbandh.com.au

What is blood alcohol content or BAC?

Blood alcohol content (BAC) is the measurement of the number of grams of alcohol in 100ml of blood. If you are the driver of a vehicle in a public place, the police may take a sample of your breath, blood or urine and apply tests to determine your BAC.

Offences of drink driving under the Road Traffic Act 1974 (WA) are described according to the BAC level, for example, excess 0.08 BAC.

The penalty for the offence (usually a fine and loss of licence) increases as the BAC reading increases and the penalty may also increase if it is your second or subsequent offence.

Do I need to be represented by a lawyer in court if I am charged with a traffic offence?

If you are pleading guilty to a traffic offence you can choose to be represented by the duty lawyer, your own lawyer or you can choose to represent yourself.

If you are pleading not guilty the duty lawyer cannot represent you at your trial.

Generally, it will be appropriate for you to represent yourself if the offence you are facing will not result in a serious penalty or serious consequences for you.

If, however, the offence or consequences are more serious, you should contact Steven Blyth, Partner at LBH on sblyth@lbandh.com.au to obtain legal advice before deciding whether to represent yourself.

If there is a risk of imprisonment, or disqualification of your licence will result in the loss of your job or another serious consequence, it is better if you are represented.

Where can I get legal advice about my traffic charge?

If you have been charged with a traffic offence and you need legal advice about your charge, your plea or about the penalty you are likely to get, contact Steven Blyth, Partner at LBH on sblyth@lbandh.com.au

This is best done before your court appearance so you have a chance to act on any advice you may be given.

Do I have to attend court if I am charged with a traffic offence?

If you have been issued with a court hearing notice rather than a summons, then you have the option of attending court or not in answer to the charge.

If you choose not to attend court, you can send the notice back to the court with your plea endorsed on it. This means you can let the court know in writing whether you want to plead guilty or not guilty.

If you choose not to attend court and you do not send the notice back to the court you may be convicted in your absence.

If you are issued with a summons to attend court, then you must attend in person on the date stated in the summons.

What penalties can apply if I am convicted of a traffic offence?

If you are convicted of a traffic offence after a plea of guilty or after being found guilty at trial, the most common penalty is a fine and disqualification of your licence for a period of time. For some offences, disqualification cannot be imposed, while for others it may be imposed if the court considers it appropriate. For many offences, the court must order that you be disqualified from driving for a certain period of time.

There are also some traffic offences that can result in imprisonment.

For information about the penalties that may be imposed for some of the more common traffic offences, contact Steven Blyth, Partner at LB&H on sblyth@lbandh.com.au

What should I do if I am charged with a traffic offence?

The first thing to do is to consider your plea, that is, whether you are guilty or not guilty of the offence. If you are not sure, contact Steven Blyth, Partner at LB&H on sblyth@lbandh.com.au

If my vehicle has been impounded or confiscated, will I get a more lenient penalty from the court?

No, the impounding or confiscation of your vehicle has no effect on the penalty that you would otherwise get for the offence. This means that if you would normally receive a fine and a period of disqualification for the offence, those penalties will still apply. 

The amount of the fine or the length of the disqualification will not change just because your vehicle has been impounded or confiscated.

Similarly, where you have had your vehicle impounded by police for a particular offence, this has no effect on the court’s decision whether to impound or confiscate your vehicle if you are convicted of the offence.

Contact Steven Blyth, Partner LBH on sblyth@lbandh.com.au for legal advice about your offence

What happens to the vehicle after it is confiscated?

A vehicle that is confiscated becomes the property of the State and may be sold. The proceeds of the sale may be used to pay for the cost of selling the vehicle. If this is not enough, you are required to pay the difference.

When can a court order the confiscation of a vehicle?

The police do not have any power to confiscate a vehicle, however, in certain circumstances a court may order that a particular vehicle be confiscated. Confiscation means the vehicle will not be returned to the owner.

The fact that you may have already had your vehicle impounded by police for the offence, has no effect on the court’s decision whether to confiscate your vehicle.

The circumstances when a court may order the confiscation of a particular vehicle depends on the offence that you have been convicted of and your driving record.

1. Impounding offences (driving)

Where a court convicts you of an impounding offence (driving) and you have been convicted of two offences in the same category within the five years prior to this offence, the court must confiscate the vehicle used in the offence, unless it would cause severe hardship to a person with an interest in the vehicle or a person who is the usual driver of the vehicle.

You should note that where a court convicts you of an impounding offence (driving) and the vehicle you were driving during the offence was stolen or was a hire car, the court cannot confiscate the vehicle. 

However, if the vehicle you were driving was lent to you, the court can still choose to impound this vehicle for no more than six months.

2. Impounding offences (driver’s licence)

Where a court convicts you of an impounding offence (driver’s licence) and you have been convicted of two offences in the same category within the five years prior to this offence, the court may confiscate the vehicle you were driving or a substitute vehicle.

When considering whether to order confiscation, the court may consider whether it will cause severe financial or physical hardship to a person who has an interest in the vehicle or the usual driver of the vehicle.

As an alternative to confiscating, the court can choose to impound the vehicle you were driving or a substitute vehicle for no more than six months.

3. Road rage offences

Where a court convicts you of a road rage offence, it may order that the vehicle involved in the offence or a substitute vehicle be confiscated. 

When considering whether to order confiscation, the court may consider whether it will cause severe financial or physical hardship to a person who has an interest in the vehicle or the usual driver of the vehicle.

What if I am not charged or the charge is dismissed?

If you are not charged with an offence within a year of the impounding, or you are charged but not convicted of the offence within a year of the impounding, the impounded vehicle must be returned to you.

If you have already paid the impounding costs and the vehicle has been returned to you, you can apply for a refund of the costs you have paid to have your vehicle released. To apply for a refund, write to the WA Police Vehicle Impound Unit at PO Box 106, Belmont, WA 6984  and explain your situation.

When writing to the WA Police you should include:

A copy of court record (transcript or other formal record) to show charge has been dismissed

A copy of proof of payment, and

Information about the name and address of the person who made the payment.

Contact Steven Blyth, Partner at LBH on sblyth@lbanh.com.au

What happens if I do not pay these costs?

Usually, if you do not pay these costs the police may refuse to release the vehicle, however, if the Commissioner of Police considers it appropriate, the vehicle may be released without you having to pay these costs.

When will the impounded vehicle be released?

When the impounding period has ended, a responsible person may ask for the release of the vehicle. It must be released unless there are costs of impounding that have not been paid and it will only be released when the place where it is stored is normally open to the public.

Are there any costs that have to be paid when a vehicle is impounded?

Yes, if you were the driver and you are convicted of the offence that resulted in the impounding, you will become responsible for paying all the costs associated with the impounding, such as towage and storage costs.

Is it possible to get an impounded vehicle back early?

Yes, in certain circumstances it is possible to get an impounded vehicle back before the impounding period has ended. Those circumstances are where:

The vehicle is stolen

The vehicle is a hire vehicle

A senior police officer (inspector, acting inspector or rank above inspector) is not satisfied there were reasonable grounds for impounding

A senior police officer (inspector, acting inspector or rank above inspector) is satisfied that exceptional hardship will be suffered if the vehicle is not released

The offence was committed by a vehicle service provider or a person employed or contracted by a vehicle service provider (examples of vehicle service providers are: mechanic; panel beater; valet parking service; car cleaning service; vehicle inspection service; vehicle storage or transportation service) when the vehicle was being looked after by the vehicle service provider for a vehicle related service

The offence was committed by a customer of a vehicle service provider when they had been lent the vehicle by a vehicle service provider whilst the service provider was providing a service in relation to the customer’s own vehicle, or

The offence was committed by a prospective buyer whilst test-driving the vehicle.

To get your vehicle back, you should obtain an Application for Early Release Form from any Police Station or by telephoning the Vehicle Impound Unit at the WA Police on (08) 9373 2444. You must send the completed form to the WA Police Vehicle Impound Unit at PO Box 106, Belmont, WA 6984.

Where a vehicle is released early for one of these reasons, police can require that a different vehicle be provided for impounding instead of the original vehicle. This is done by the police issuing a surrender substitute vehicle notice.

It is also possible to get an impounded vehicle back early where the charge that gave rise to the impounding has been dismissed.

Contact Steven Blyth, Partner at LBH on sblyth@lbandh.com.au for further information about getting your impounded vehicle back early.

When does the impounding start and finish?

Generally, the impounding period is calculated to start the day after the vehicle is actually impounded and finish on the last day of the impounding period. 

So, if a 28 day impounding period is imposed, it will end on the 28th day after the day on which the vehicle was impounded, or if a three month impounding period is imposed, it will end on the last day of the period of three months.

For example, if a vehicle is impounded for 28 days on 1 July, the impounding period will start on 2 July and will end on 29 July. Similarly, if a vehicle is impounded for 3 months on 1 July, the impounding period will start on 2 July and end on 2 October.

Is anyone given notice after a vehicle is impounded?

Yes, generally the police must let each responsible person for a vehicle and the driver of the vehicle know when a vehicle has been impounded. However, where a vehicle is impounded as a result of a surrender substitute vehicle notice or a surrender alternative vehicle notice, notice need only be given to each responsible person for the vehicle.

Advice of the impounding must be given in the form of a notice which will include the details of the vehicle, who was driving it (if known), why it was impounded, when it was impounded, the length of time it will be impounded and how it may be released.

What happens when the vehicle is being impounded?

A police officer may seize the keys to a vehicle that is being impounded. The vehicle may be driven, towed or otherwise taken to the place where the vehicle is to be stored. This may be done by the police or by a person contracted to assist the police.

When can a court order the impounding of a vehicle?

In certain circumstances a court may order that a particular vehicle be impounded. These circumstances depend on the offence you have committed and your driving record.

The fact that you may have already had your vehicle impounded by police for the offence, has no effect on the court’s decision whether to impound your vehicle.

1. Impounding offences (driving)

If a court convicts you of an impounding offence (driving) and you have been convicted of two offences in the same category within the five years prior to this offence and the vehicle was lent to you, the court may order that the vehicle you were driving or a substitute vehicle be impounded for no more than six months.

2. Impounding offences (driver’s licence)

If a court convicts you of an impounding offence (driver’s licence) and you have been convicted of an offence in the same category in the three years prior to this offence, the court may order that the vehicle you were driving or a substitute vehicle be impounded for no more than three months.

3. Road rage offences

If a court convicts you of a road rage offence it may order that the vehicle you were driving or a substitute vehicle be impounded for no more than six months.

How long can the police impound the vehicle?

The length of time the vehicle may be impounded by police depends on the type of offence that has been committed.

1. Impounding offences (driving)

If the police have reason to suspect that you have committed an impounding offence (driving), they must impound the vehicle you were driving for 28 days if it is the first time you have committed such an offence.

If you are a previous offender, the police must impound the vehicle for three months

You are a previous offender if you have been previously convicted of an impounding offence (driving), or you have a charge for one of these offences waiting to be dealt with. If this charge is later dismissed and you do not then fit within the definition of a previous offender, the impounding period becomes the shorter period of 28 days. 

If the 28 day period has already ended, then the impounding period ends as soon as the charge is dismissed.

2. Impounding offences (driver’s licence)

If the police reasonably suspect that you have committed an impounding offence (driver’s licence), they must impound the vehicle you were driving for 28 days.

 

Who is the “responsible person”?

The ‘responsible person’ is usually the person in whose name the vehicle is licensed, unless that person has given written notice of a change of ownership. In this case, the responsible person will be the new owner as specified in the notice. 

If the vehicle is not licensed, the responsible person is the person in whose name the vehicle was last licensed, unless since then, written notice of a change of ownership has been given. 

Once again, in this case the responsible person will be the new owner as specified in the notice.

When can the police impound the vehicle I was driving?

1. Impounding offences (driving)

If you are suspected of committing an impounding offence (driving), the police may immediately or within 28 days, impound the vehicle you were driving. 

If it is not practicable to impound it straight away or it is not until later that the police suspect the offence has been committed, within 28 days of the offence the police may serve a surrender notice requiring the responsible person for the vehicle to surrender the vehicle within seven days.

2. Impounding offences (driver’s licence)

If you are suspected of committing an impounding offence (driver’s licence), the police may immediately or within 28 days, impound the vehicle you were driving. 

If it is not practicable to impound it straight away or it is not until later that the police suspect the offence has been committed, within 28 days of the offence the police may serve a surrender notice requiring the responsible person for the vehicle to surrender the vehicle within 7 days.

3. Road rage offences

The police do not have any power to impound the vehicle you were driving when you are suspected of committing or have committed a road rage offence. 

Only a court has the power to order the impounding of a vehicle used in a road rage offence.

What offences can result in the impounding or confiscation of a vehicle?

Only certain offences under the Road Traffic Act 1974 (WA) can result in impounding or confiscation. 

Whether the vehicle you were driving may be impounded by the police or impounded or confiscated by a court, will depend on the offence you have committed and whether you have previously committed such offences.

The offences that may result in impounding or confiscation are split into the following three categories: 

1. Impounding offences (driving):

These are offences related to your manner of driving and include:

Reckless driving

Driving at or over 155 km/hr

Driving at 45 km/h or more over the speed limit, or

Causing undue noise/smoke.

2. Impounding offences (driver’s licence):

These are offences related to your licence and include:

Driving without a valid licence where your application for a licence has been refused

Driving without a valid licence where you have never held a licence and a court has disqualified you from driving

Driving without a valid licence where you have ceased to hold a licence, but this does not include where you have voluntarily surrendered it, it has expired or it is under fines suspension

Driving without a valid licence where your licence has been suspended, other than when it is under fines suspension, or

Driving contrary to certain conditions of an extraordinary driver’s licence, namely conditions relating to time, purpose or location of driving.

3. Road rage offences:

These offenses include:

Reckless driving, where the driving is dangerous to a particular person, or

Any offence where you either assault someone or damage their property and where you commit the offence in response to an incident on a road or public access place (whether a fee must be paid or not), while you are driving on the road or place and the other person is using the same road or place.

What should I do if I think I will be disqualified from driving?

If you think you will be convicted of an offence that will result in disqualification, you should be prepared to tell the court the impact the disqualification will have on you. For example, whether you rely on driving to get to work. 

If the impact is significant then the court may consider it appropriate to impose no more than the minimum length of disqualification for that offence.

Also, if you think you will be disqualified when you go to court, make alternative transport arrangements to leave court, as you will not be allowed to drive from the time the court imposes the disqualification on you.

If I am fined will I be given time to pay?

The court will always give you 28 days to pay any fine imposed.

If you need longer than 28 days to pay you should go to the Registry at your nearest Magistrates Court before the 28 days runs out, to arrange to pay the fine by installments (time to pay).

Will my licence be cancelled if I am a P-plater?

Yes, if you are a provisional licence holder (P-plater) and you are disqualified from driving for an offence of drink or drug driving, your licence will be automatically cancelled.

If your licence is cancelled, you cannot drive until you have passed your test again.

Is there any drink or drug driving offence I won’t be disqualified for?

While most drink or drug driving offences will result in you being automatically disqualified from driving, there are a few slightly less serious offences that do not result in automatic disqualification. They are:

Any offence of excess 0.00 BAC (if you are subject to that limit)

First offence of excess 0.05 BAC – disqualification is not automatic, but it may be imposed if the court considers it is appropriate, and

First offence of driving with illicit drugs in your saliva or blood, provided that you are not found to be impaired by the drug at the time.

Can I ask the court not to fine me and not to disqualify me from driving?

For most drink or drug driving offences, the minimum penalty is fixed by law and the court must impose at least the minimum fine and at least the minimum period of disqualification for the particular offence.

The court can impose more than the minimum if it thinks it is appropriate in the circumstances, but can never impose less than the minimum.

What penalties can apply if I am convicted drink drinking or drug driving?

If you are convicted of a drink or drug driving offence (that is, you plead guilty or you are found guilty after trial), the penalty that will usually apply is a fine and a period of licence disqualification.

Licence disqualification (suspension) means that you are not allowed to drive for a period of time specified by the court though for some serious drink driving offences, imprisonment is also an option.

For serious offence you should contact LB&H immediately for legal advice.

Contact Steven Blyth, Partner at LBH on sblyth@lbandh.com.au

What should I do if I am charged with drink or drug driving?

The first thing to do is to consider if you are guilty or not guilty of the offence. If you are not sure, you should contact Steven Blyth, Partner of LBH on sblyth@lbandh.com.au.

Some of the issues that are relevant to whether you are guilty of the offence include:

Whether you were the driver of the vehicle, and

Whether you were driving on a road or other place to which the public has access.

If you are not sure if you have been charged with the correct offence, LBH can assist you check the information under blood alcohol content limits.

If you are facing a drink or drug driving offence and at the same time you are facing another driving offence, such as careless driving or dangerous driving, your situation is more serious.

In some circumstances there may be a risk of imprisonment. If you are in this situation, you should contact LBH before you enter a plea.

Do I have to do a driver assessment test or do a blood or urine test for drugs?

If you are the driver of a vehicle and the police ask you to either do a driver assessment test to see if you are impaired by drugs, or ask you to do a blood or urine test to test for the presence of illicit drugs in your system, you must comply with the request.

It is an offence to refuse to comply with the request.

Do I have to do a breath, blood or urine test for alcohol?

If the preliminary test shows that you have an unlawful amount of alcohol in your system, or you refuse to do or cannot do a preliminary test, the police can require you to provide a sample of breath, blood or urine, for analysis.

Usually, this test is conducted at a police station. Samples of blood or urine must be taken by a nurse or medical practitioner.

You are not required to provide a sample of breath, blood or urine if it is four hours or more after you drove.

It is otherwise an offence to refuse to provide a sample of breath, blood or urine.

Do I have to do a preliminary breath test for alcohol?

A preliminary breath test is the test that is first conducted by police, usually at the side of the road, to see if you have any alcohol in your system.

If you are the driver of a vehicle and a police officer asks you to provide a sample of breath for a preliminary breath test, then you must do so. It is an offence to refuse to comply with this request.

A police officer can also require you to provide a sample of breath if they reasonably believe you were driving the vehicle earlier, even if you are not driving it at the time the vehicle is stopped. Once again it is an offence to refuse to comply with this request.

What is drug driving?

Drug driving is the term used to describe an offence of driving while impaired by drugs or driving with an illicit drug in your system.

If you are found to have an illicit drug in your system at the time of driving, you are committing an offence no matter how much of the drug is recorded.

It is a different offence to drive while impaired by drugs. You will be charged with this offence if you complete a driver assessment test which shows that you are impaired by a drug and therefore cannot drive safely.

If you have been taking prescribed medication and you have been charged with an offence of drug impaired driving, you should contact LB&H immediately. In certain circumstances it is possible you may have a defence to the charge.

Contact Steven Blyth, Partner LBH on sblyth@lbandh.com.au

What is drink driving?

Drink driving is the term used to describe an offence of driving while having alcohol in your system.

You will be charged with drink driving if you drive when you have more alcohol in your system than you are legally allowed to have.

The police are allowed to stop you and require you to undergo certain tests. These tests are known as the preliminary breath test and the breath/blood/urine test.

These tests result in a blood alcohol content reading or BAC reading, which shows how many grams of alcohol there are in 100ml of your blood.

The BAC reading is used to support the charge against you. There are a number of different drink driving charges under the Road Traffic Act 1974 (WA) that are grouped according to the BAC reading.

They are:

Excess 0.00 BAC (reading of up to less than 0.02 BAC)

Excess 0.02 BAC (reading of 0.02 BAC up to less than 0.05 BAC)

Excess 0.05 BAC (reading of 0.05 BAC up to less than 0.08 BAC)

Excess 0.08 BAC (reading of 0.08 BAC up to less than 0.15 BAC), and

Driving under the influence (reading of 0.15 BAC or more).

The precise charge brought against you will depend on the level of alcohol shown to be in your system at the time of driving, in other words, your BAC reading at the time of driving.

The higher the BAC reading, the higher the penalty for the offence. When the amount reaches 0.15 BAC or more, it becomes the most serious drink driving offence of driving under the influence or DUI, which can result in imprisonment.

What is impounding?

Impounding of a vehicle means the vehicle is temporarily taken away by police and stored until it is released back to the person responsible for it. Impounding may be carried out by the police or ordered by a court.

What is confiscation?

Confiscation of a vehicle means it is permanently taken away and will not be returned to the person responsible for it.  Confiscation may only be ordered by a court.