Legal Beagle: Tell me about trespass...

I write a legal column for the fabulous organisation, Romance Writers of Australia. Since it’s Christmas and we’re thinking all things festive, I thought this reflection on trespass might be instructive…

Bella and Daphne

On the night before Christmas, Amy hears a tapping noise on her roof. Five minutes later, a man, elderly, rotund and bearded, appears on her hearth. When she asks him what he’s doing there, he takes Amy into his arms and whirls her around until she’s giddy, then reaches into his sack and pulls out a brightly wrapped present. After rearranging a few ornaments on her tree, he places the present beneath one of the branches.  

‘Ho! Ho! Ho!’ echoes from the chimney as Santa ascends.

Amy runs to the window just in time to see a sleigh, Rudolf leading and Blitzen riding shotgun, disappearing into the night.

How many times has Santa acted illegally? Quite a few!

In other Legal Beagle columns, I’ve looked at the differences between criminal offences (where the government or State brings an action against the accused), and civil offences (where one individual, the plaintiff, brings an action against another individual, the defendant). While Santa’s conduct would involve criminal behaviour, I’ll focus on civil claims in trespass, which come under the legal category of ‘tort.’ Whether you’re writing a romantic comedy or a romantic suspense or anything in between, and one of your characters acts without the consent of another, the principles set out below would be relevant.

Trespass is ‘actionable per se,’ which means Amy can bring an action even though she hasn’t suffered damage to her property, physical injury or economic loss as a result of Santa’s actions. All that has to be shown to succeed in trespass is ‘direct interference with person or property.’ And as trespass is relevant to an infringement to enjoyment of land, possession of goods, and freedom of movement, Amy could have at least three actions arising from these facts. Let’s look at them one by one.

Trespass to the person involves assault (the apprehension of harm, with no damage required), battery (the direct and intentional application of force, again without the necessity of physical harm being caused) and false imprisonment (where a person is deprived of their freedom of movement). Santa’s actions in surprising Amy would be assault, touching her constitutes battery, and holding her could be false imprisonment.

Trespass to land requires possession of land (it doesn’t matter whether Amy owns or rents the property, so long as she’s entitled to occupy it) and unlawful entry (entry without permission). And there could be more than one breach here, because ‘land’ includes the surface of the land, the subsoil below it, and any airspace above it that is necessary for the enjoyment of the land. So even if Santa hadn’t come down the chimney, hovering immediately above the roof could have constituted trespass to land.

Trespass to property occurs where there is a direct or intentional interference with the personal property of the plaintiff, where they are entitled to exclusive ownership of personal goods. As Santa handled Amy’s ornaments, there would be trespass to property.

Here’s hoping your Christmas is free of any behaviour that leads to a court case, and is most importantly a safe and happy one. And that 2021 brings a lot of joy to everyone (particularly after the hard year so many have experienced due to You Know What.

Legal Beagle: Lost and Found

I recently asked one of my sons if he had any ideas for the column I write for the Romance Writers of Australia magazine, HeartsTalk. He said he’d be no help because he didn’t read romance. ‘I’m reading Tolkien’s Lord of the Rings,’ he said.  Instead of telling Max that Viggo Mortensen (who played Aragorn in the movie) was an excellent romantic lead, I asked him a question. ‘Whom did the ring really belong to?’

It’s not uncommon, in literature or in life, to have a situation where someone ‘finds’ something—a diamond tiara under your floorboards, a bundle of notes in a garden shed, a valuable vase at a fete, treasure at the bottom of the sea. Who is the rightful owner? Is possession nine tenths of the law? Are finders always keepers?

It is straightforward to work out whether title (or ownership) has passed from one person to another in a contractual situation because consideration (a price) will usually be paid. Things are much less certain when there’s no contract. A court has to decide whether the original owner intended to part with possession of a good and renounce ownership of it, or abandon it. A court also has to decide whether the person who took possession of the good intended to own it. Only if these elements can be satisfied will there be a transfer of title from the original owner to another person. If goods are found years after they have been ‘lost’ intention is particularly difficult to ascertain.

If a good is small and valuable, the courts are less likely to think it’s been abandoned. If it is a large item (like a armchair left on a nature strip), the intention is likely abandonment (but this won’t apply to cufflinks found under a cushion). Intention can also be indicated by the place of abandonment—a rubbish tip as opposed to a bus stop. But if a diamond ring is found at a tip, will there be abandonment? Probably not.

The courts often rely on common law principles (based on cases decided earlier in time), but sometimes statute law applies. In South Australia the Police Act 1998 and regulations cover ‘found property,’ or ‘personal property that has been lost and whose owner is unknown at the time at which it is found (See regulation 75). A finder must take found property to the police, but may have rights over that property in the absence of a claim by the true owner.

Under many real estate (land) contracts, goods left behind will be deemed abandoned, so the purchaser becomes the owner. Treasure is different—the Crown (government) will often have title to antiquities and historically important items, and finders must surrender these. Minerals and fossils are the property of the Crown and their extraction and sale is regulated. Marilyn Forsyth’s novel Falling in Love Again (published by Escape) resolves the character’s dispute over fossilised opals beautifully!

How did my son answer my question? Sauron creates the ring. He’s killed by the King of Gondor, who takes the ring, then loses it. Déagol finds the ring and Sméagol kills him for it. Sméagol loses it. Bilbo finds it, and gives it to Frodo who destroys it. ‘Dunno, Mum.’

How about Cinderella? Did she abandon her glass slipper? If the Prince had chosen to keep it for himself, would he have had better title to it than anyone else? Let me know in the comments!

Legal Beagle: How Much is that Doggie in the Window?

I write a column for the writing group Romance Writers of Australia (about laws that might be of interest in our writing). A recent topic was about custody of pets. And here it is!

Daphne Dane (not for sale, by the way!)

How much is that doggie in the window, the one with the waggly tail,

How much is that doggie in the window, I do hope that doggie’s for sale …

In a recent divorce case, a husband offered his wife $20,000 in consideration for her agreeing that their dog would live with him. Her response? That no amount of money could induce her to hand over the dog, because it would be like selling a member of her family. In the case of a much loved animal, horse or dog or cat or goat or guinea pig, I think many of us can relate to this sentiment.

So … what happens to a pet that both parties want to keep when a couple separate? Who gets custody? There are marked differences between the law in Australia in this area, and some States in the US, so if you’re setting your story in another jurisdiction, take care to check the law there. This month’s Legal Beagle will look at Australian law first, and then the law in the US, because there’s a chance that Australian law might eventually head in this direction.

Case scenario: Jacquie and Jonathon have been married for thirty years, but have recently separated, and have applied to the Family Court for a divorce. Their adult children left home years ago, but they still have a family dog, JimBob, a five year old Staffie. Jacquie bought JimBob for her and Jonathan’s twenty-fiftieth wedding anniversary, but the dog is registered with the local council in her name. She takes him for walks occasionally, buys his flea and tick treatments, feeds him, cleans up after him, and takes him to the vet when necessary. JimBob is a lazy dog, and his favourite activity is to sit on Jonathan’s knee while he watches West Coast Eagles AFL games, and the cricket (particularly five day test matches). JimBob sleeps on Jonathan’s side of the bed.

Both Jacquie and Jonathan want JimBob to live with them, and each thinks this arrangement will be in JimBob’s interests. As this matter relates to divorce, it will be regulated by the Commonwealth Family Law Act 1975 (this Act applies to all states and territories): Click here for the legislation!

The law in Australia wouldn’t decide this case as a custody matter, because pets under the law are considered items of personal property (a chose in possession, to use the old fashioned term). This means JimBob’s ownership, and who he lives with, will be treated in the same way as furniture, tools, a computer or any other property asset. The concept of who owns the ‘property,’ and the economic value of the ‘property,’ will be taken into account by the courts in assessing who gets what when other property is divided up. Unlike children, there is no legal framework for dealing with custody or living arrangements for a pet, so if this matter goes to court, JimBob will be just another item on a list of property assets.

But before a matter gets to court for a property division, what if Jonathan takes JimBob to live with him in WA (Jacquie stays in SA)? To have JimBob returned to her care, she would have to apply to court for his ‘recovery’ (in the same way she’d petition the court if Jonathan took her late grandmother’s Lladró collection). If JimBob is still living with Jacquie, but she is concerned that Jonathan might take him out of her garden while she is at work, she could apply to the court for a ‘Declaration,’ a court order setting out a decision regarding the correct law on a matter.

Is there a way to avoid court and the associated expense and emotional turmoil? Ideally the parties come to an informal agreement. And if that isn’t achievable, mediation may be possible. The only trouble with agreements and mediations however, is that they aren’t legally enforceable, so the only way to have certainty is by going to court and applying for a Consent Order (where the court approves an agreement between the parties, so it has the force of a court decision). Alternatively, one or both parties apply to the court for a Property Order, which deals with all the property. The facts set out above (who feeds JimBob, who has the greatest attachment to JimBob etc.) would help a court to decide who is most attached to the ‘asset,’ and who has the best claim over it.

What would happen if Jonathan and Jacquie had dependent children? Children will be relevant in deciding the living arrangements of a dog, because the ‘best interests of the child’ will always be foremost in a judge’s mind. There have been cases where a judge has decided that the pet should remain with the children, and this means the pet goes wherever the children go. The dog is still seen as ‘property,’ but property that is important to the emotional wellbeing of the child. This is an approach that Jonathan and Jacquie might favour anyway, because they’re likely to love their children and their pet.

Now for a quick look at US law: An act was recently passed in California, which differentiates companion animals from other types of property, and allows people to apply for sole or joint custody of a pet. The judge will decide the case based on the ‘best interests of the animal’ (in the way the court decides a case in the best interests of a child. See: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB2274

In Alaska, the law states that a court has to take an animal’s welfare into consideration if parties separate (so the consideration is what is best for the animal, not the owners). A judge may also assign joint custody. If one party refuses to hand over possession in the case of joint custody, the court can order them to do so. There are many thought provoking cases in this area, and plenty of scope for conflict as well!

Legal Beagle: High Seas Dramas part two

Those following the Legal Beagle columns I post here ( I write these for the fabulous Romance Writers of Australia magazine, HeartsTalk), will know they aren’t written as legal advice, but tips that might be useful to writers dealing with similar issues. Because legal issues come up all the time! Here is an excerpt of an article I recently wrote on the law of the sea:

Aidan Turner (Ross Poldark)

Some of the principles on the law of the sea are centuries old and will, I hope, be of interest to both contemporary and historical romance authors.

The world currently has a commercial fleet of over 90 000 vessels. Greece is the largest ship owning country, followed by Japan, China, Germany and Singapore. This could explain why decades of Mills & Boon titles have featured Greek shipping tycoons as heroes! Writers of historical fiction have also written gripping historical tales about the passage of ships across oceans.

The ocean, always intrinsic to trade and commerce, covers over seventy per cent of the earth’s surface, and most of the world’s population lives within a few hundred kilometres of the coast. So who has command of the sea? The doctrine of ‘freedom of the seas’ can be traced back to the seventeenth century, and is based on the idea that, besides a nation’s rights and jurisdiction (power) over ‘strips of sea’ adjacent to their coastlines, the seas belong to no one.

Technological developments, particularly from the mid-twentieth century, facilitated the exploitation of offshore resources, and the width of the ‘strips of sea’ became increasingly problematical as nations sought to extend their claims over the oceans. With rising populations, issues such as the depletion of fish stocks by long-distance fishing fleets, and environmental concerns surrounding pollution and waste from oil tankers and other commercial vessels, were also contentious. The development of weaponry on naval and other craft, as nations sought to use the ocean to pursue (increasingly long range) military objectives, was another matter of concern.

Demelza Poldark (Eleanor May Tomlinson)

            Enter the United Nations, and its efforts to legally define the uses of the oceans for the ‘individual and common benefit of humankind.’ Cooperation between nations was intrinsic to laying down international law in respect of the ocean. Many nations signed a treaty banning nuclear weapons on the seabed, and acknowledging that all resources of the seabed are ‘the common heritage of humankind.’ Decades of negotiation went into the UN Convention on the Law of the Sea, which was finally adopted by the UN in 1982. This Convention, or international treaty, means that a clear set of laws applies to water resources. There are over 165 countries that are signatories to the Convention and they are bound by its principles. The Convention provides for:

·      An exclusive territorial sea boundary of 12 nautical miles (22 km). Nations can enforce their own laws and use resources within this offshore zone, which includes the seabed and its subsoil, and the air above it. It covers elements like fishing, mineral rights, and sea floor deposits.

·      A Contiguous Zone of 24 nautical miles offshore, which can be used to enforce laws on matters like immigration, customs, and pollution.

·      An Exclusive Economic Zone gives a nation limited rights over areas of up to 200 nautical miles offshore (provided there is no clash of rights with any coastal neighbours that ‘share’ the same zones).

Notwithstanding these outcomes, the UN Convention allows for ‘innocent passage’ through ocean waters by foreign vessels, provided they do no harm to the relevant nation, or break its local laws. UN bodies have been established to settle disputes between nations regarding the zones, their ‘boundaries,’ and activities within them, and also to develop a body of law that will be universally adopted and implemented.

Principles on the law of the sea are relevant to crimes committed at sea, the arrest and sale of ships, the salvage and recovery of ships lost at sea, and the prosecution of those responsible for environmental damage. Ships that operate in Polar waters (increasingly important because of the proliferation of cruise ships in polar regions) are now regulated by the UN Polar Code.

And to add to my last column… Why does the law treat flotsam, jetsam and derelict differently? Poldark anyone? There was an episode in an early season where debris was washed up on the Cornwall shore after a shipwreck, and villagers waited patiently on the sand to retrieve it. What law would apply?

Under traditional maritime law, there are distinct types of marine debris. Jetsam (the word is related to ‘jettison’) is an item deliberately thrown overboard (to lighten the load of a ship, for example). Flotsam refers to debris in the ocean that got there as a result of a shipwreck, or accident. If ever found, flotsam can be claimed by the original owner (because they never intended to relinquish ownership). In the case of jetsam, the finder will likely get to keep the item, as it was relinquished with the intention the owner would never be able to reclaim it. Derelict is another kind of debris, and is property deliberately deserted at sea by those in charge of it (so it is effectively abandoned).

Our current law is a little different from the Poldark situation. Under the UK Merchant Shipping Act, 1995, for example, there is an obligation to notify the authorities of property recovered from the ocean, and there are regulations around reporting wrecks as well.

All this is fascinating stuff, and much as I’d love to talk about Ross and Demelza Poldark in more detail, I’ve run out of space….

Legal Beagle: Cruise ship dramas

Those following the Legal Beagle columns I post here ( I write these for the fabulous Romance Writers of Australia magazine, HeartsTalk), will know they aren’t written as legal advice, but tips that might be useful to writers dealing with similar issues. Because legal issues come up all the time! Here is an excerpt of an article I wrote on cruise ships. What happens if there is a death or crime on board?

If you are planning to set a novel on a cruise ship, if your characters go overseas for work or pleasure, or if one of your characters dies while on a ship or on an overseas holiday, I hope you’ll find something to interest you in this month’s column.            

Many cruise ship companies operate in Australian waters, and carry thousands of Australian passengers each year, but they are overwhelmingly owned and operated by overseas interests, primarily based in the US and the UK. The ships, however, are highly unlikely to be registered in these countries. They will be registered in ‘flag States,’ or ‘flags of convenience,’ countries like Panama, Bermuda or Barbados, with little or no control over the cruise ship day-to-day operations. Why? Often because it’s cheaper to register in flag states, and the regulatory requirements are less onerous.

If a crime is committed on a cruise ship (given the number of people on board, this is not an irregular occurrence) it can be difficult to work out who is responsible for the investigation and prosecution of crimes. And to add to the complexity, there are many possible laws that will apply to any crime. There is international law, in the form of The United Nations Convention on The Law of the Sea 1982, the law of the flag state, the law of the countries of the citizens involved, and often the law of the port the ship is either leaving, or sailing towards. Here is an example of what can occur:

Annabel, an Australian citizen, books a ten day cruise on The Princess Charming, a ship owned by a US company, and registered in Bermuda. Annabel boards at Circular Quay in Sydney. The ship is only a few nautical miles from New Caledonia when Sigrid, a citizen of Sweden, assaults Annabel (Sigrid claims she committed the act because Annabel spiked her drink the night before). Annabel sustains a broken arm. What law applies?

The law of Bermuda will apply because that is where the ship is registered. The law of New Caledonia will apply because, within the 12 nautical mile zone, the ship is in New Caledonian waters. Australian law would apply because Annabel is an Australian citizen. Swedish law could also be relevant, as the perpetrator of the offence is a Swedish citizen. The ship is owned and run by a UK company, so the laws of that country would also be relevant.

So… there will be a multitude of jurisdictions operating concurrently. A ship will always be subject to the domestic laws of the country in which it is flagged (there are no Australian flagged cruise ships), but while in territorial waters it may also be subject to the laws regulating those waters, and ports. If it is in international waters, those laws will come into play. And in the case of a crime being committed, the perpetrator and victim’s countries of citizenship will have jurisdiction to investigate and prosecute. So there will be ‘competing jurisdictional claims.’ The countries themselves will have to work out who takes action, and which jurisdiction and laws will apply (often the flag state doesn’t want to get involved—it doesn’t have the resources, interest or will to do so).

On a side note, most people are familiar with the notion that if you commit a crime in another country, you will be liable under the laws of that country. The same concepts apply on a cruise ship, and ignorance of the law will never be an excuse. This means that, for example, some medications or recreational drugs allowable in one country might be prohibited substances in another country, and this will be relevant when the ship sails into that country’s territorial waters.

Felix, an Australian citizen, has planned a ‘trip of a lifetime,’ a cruise to Antarctica, for years. He boards a cruise ship (owned by a British company and registered in Malta) in Argentina. He has been on the ship for three days, and is in international waters, when he dies of a heart attack.

Death at sea from natural causes, particularly given the demographic of many cruise passengers, happens relatively frequently. All cruise ships are required to have a suitable storage area should a death occur on board.

What happens to a deceased person’s body will depend on the laws that apply on the ship, and in the next port of call.  That destination port might allow the body to be handed over. Or it might refuse to take the body (smaller countries without appropriate storage or repatriation facilities often reject a body). Should the body be unloaded (and, anecdotally, it appears that this will be the preference of the cruise ship company) the family will bear the full cost and responsibility to bring the body back to the home country. This is where travel insurance will be important!

The message from this month’s column is… should a crime be committed on a ship, or a death occurs on board, there are no simple answers to how things might turn out. The romance aspects of cruising are easy to see. But criminals and coroners, diplomats and detectives, could also be part of the mix! Romantic suspense, anyone?

Legal Beagle: Marriage

I really enjoyed writing the Legal Beagle column on marriage. Plenty of books, movies and television shows came to mind! This post was first published in the Romance Writer's of Australia newsletter. If you are a romance writer (or a writer generally) I recommend the RWA. It is a wonderfully informative and supportive organisation. And I'm not just saying this because I'm the Secretary - RWA was so important to me when I started on my writing journey.

Anyway, here it is ... marriage! 

Gretna Green, Las Vegas or Brisbane anyone? I happily re-read two great novels and watched a reality dating show before writing this month’s column.

Gretna Green is a location just north of the Scottish border and has been, since the mid 1700s, a popular marriage destination. In Lisa Kleypas’s Devil in Winter (Wallflowers # 3), Sebastian, Lord St. Vincent, marries Evie Jenner at Gretna Green. Why Gretna? Evie was under 21 (a minor). Under English law she needed the consent of a parent or guardian to marry. This wasn’t a requirement under Scottish law (where a marriage could take place by declaration before two witnesses). In Devil in Winter it was Evie who proposed marriage to Sebastian. She said:

‘I need a h-husband. You need a rich wife. And we are both equally desperate, which leads me to believe that you will agree to my pr-proposition. If so, then I should like to leave for Gretna Green tonight.’

This novel (one of my all time favourites) can be summarised in one word … swoon.

My second example is a contemporary one, from Kylie Scott’s novel Lick (Stage Dive #1). Evelyn wakes up with David in Las Vegas. She’s wearing a diamond ring, but has no recollection of the night before. David starts the conversation:

‘Let me get this straight, you don’t remember anything?’

‘No,’ I said, swallowing hard. ‘What did we do last night?’

‘We got f****** married,’ he growled.

To comply with the State law of Nevada, the prospective bride and groom go to a Marriage License Bureau with relevant identifying documents—such as a driver’s license or passport. Both parties have to be unrelated, unmarried and at least 18 years old. There are few legal requirements, but in order to consent the parties should be aware they got married!

In Australia, the law on marriage is consistent because Commonwealth law, rather than State and Territory law, governs it. In fact, marriage is specifically provided for in section 51(xxi) of the Commonwealth Constitution 1900 (see http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution.aspx)

In the reality television series Married at First Sight, the couples can’t meet (and marry!) immediately, because the Marriage Act, 1961 (see http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/) prohibits this. Under the Act, it is a legal requirement that the bride and groom complete a Notice of Intended Marriage at least 30 days prior to getting married. A celebrant or other authorised person will lodge this document with the Registry of Births, Deaths and Marriages following the marriage ceremony. On Married at First Sight, participants fill out the Notice, but the 30-day period hasn’t elapsed when the ‘wedding’ takes place. If the couples wish to marry for real, they can do so 30 days after completing the Notice.

In Australia, marriage requires consent. Legally, consent gained by force or intimidation is not ‘consent.’ The age of consent for marriage is 18 unless, with parental approval, a court specifically allows it.

If you are writing about marriage, I hope this information helps your characters with their wedding plans!

Legal Beagle: Marriage

This month, a few facts on marriage ...

Gretna Green, Las Vegas or Brisbane? I happily re-read two great novels and watched a reality dating show before writing this column. The topic? Marriage!

Who wouldn't want to marry Mr Darcy?

Gretna Green is a location just north of the Scottish border and has been, since the mid 1700s, a popular marriage destination. In Lisa Kleypas’s Devil in Winter (Wallflowers # 3), Sebastian, Lord St. Vincent, marries Evie Jenner at Gretna Green. Why Gretna? Evie was under 21 (a minor). Under English law she needed the consent of a parent or guardian to marry. This wasn’t a requirement under Scottish law (where a marriage could take place by declaration before two witnesses). In Devil in Winter it was Evie who proposed marriage to Sebastian. She said:

‘I need a h-husband. You need a rich wife. And we are both equally desperate, which leads me to believe that you will agree to my pr-proposition. If so, then I should like to leave for Gretna Green tonight.’

This novel (one of my all time favourites) can be summarised in one word … swoon.

My second example is a contemporary one, from Kylie Scott’s novel Lick (Stage Dive #1). Evelyn wakes up with David in Las Vegas. She’s wearing a diamond ring, but has no recollection of getting married the night before. David starts the conversation:

‘Let me get this straight, you don’t remember anything?’

‘No,’ I said, swallowing hard. ‘What did we do last night?’

To comply with the State law of Nevada, the prospective bride and groom go to a Marriage License Bureau with relevant identifying documents—such as a driver’s license or passport. Both parties have to be unrelated, unmarried and at least 18 years old. There are few legal requirements, but in order to consent the parties should be aware they got married!

In Australia, the law on marriage is consistent because Commonwealth law, rather than State and Territory law, governs it. In fact, marriage is specifically provided for in section 51(xxi) of the Commonwealth Constitution 1900 (see http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution.aspx)

In the reality television series Married at First Sight, the couples can’t meet (and marry!) immediately, because the Marriage Act, 1961 (see http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/) prohibits this. Under the Act, it is a legal requirement that the bride and groom complete a Notice of Intended Marriage at least 30 days prior to getting married. A celebrant or other authorised person will lodge this document with the Registry of Births, Deaths and Marriages following the marriage ceremony. On Married at First Sight, participants fill out the Notice, but the 30-day period hasn’t elapsed when the ‘wedding’ takes place. If the couples wish to marry for real, they can do so 30 days after completing the Notice.

In Australia, marriage requires consent. Legally, consent gained by force or intimidation is not ‘consent.’ The age of consent for marriage is 18 unless, with parental approval, a court specifically allows it.

If you are writing about a marriage (or contemplating one!) I hope this helps your characters with their wedding plans!

Legal Beagle: Family violence

For the April edition of the RWA HeartsTalk magazine, I wrote about family, or domestic violence. 

Family violence is known legally, and in the community, by many different names—domestic violence, relationship violence, intimate partner violence, and child abuse. Let’s look at a scenario that might come up in our writing lives, and consider the legal definitions.

Jane and John have been married for 12 years. They have a mortgaged home and two young children. Over a three-year period, the following events occur:

·      Jane is keen to return to work. When she tells John she has a casual job, he states she already has a job—caring for the children. Not wanting to argue with him, she resigns.

·      John locks Jane out of the house for an hour to ‘teach her a lesson’ because she forgot to lock the front door when she took the children to school.

·      John refuses to speak to Jane for two days after she forgets to pay the gas bill.

·      John tells Jane they are on a tight budget, so she has to give him receipts for all household expenditure. When he doesn’t approve of something she’s spent money on, he mocks her in front of the children.

·      John initiates sex and Jane says no. John gets out of bed, gathers together Jane’s makeup and perfumes, and throws them away.

An important point to note is that family violence isn’t limited to physical violence. It is a pattern of abusive behaviour used within a family to control and dominate. This includes coercion and intimidation. It is ongoing behaviour that can undermine the victim’s confidence, and ability to leave the perpetrator. There is often an escalation of violence over time.

Each State and Territory has legislation relating to family violence (with different names and terminology—if you need help with the jurisdiction you are writing about, send me an email and I’ll give you a link). I’ll use the Victorian Family Violence Protection Act 2008 to illustrate my points. You can find this Act at http://www.austlii.edu.au/au/legis/vic/consol_act/fvpa2008283/s11.html.

The Family Violence Protection Act recognises emotional, financial, sexual or social abuse as family violence. It also includes, as family violence, behaviour that forces a child to hear, witness or otherwise be exposed to violence after the violence has occurred (for example, seeing broken crockery, or hearing a mother crying).

Jane has been subjected to various forms of family violence, and would be entitled to protection by the law, and support agencies.

Here is another scenario. Mike and Mary have lived together for over two years. The following events occur:

·      Mike and Mary are drinking heavily, and argue. Mike pushes Mary and she falls, bruising her hip. Neighbours hear Mary crying and alert police, but Mary sends them away.

·      On a weekend away with a group of friends, Mike hugs Mary and tells her if she ever leaves him, he’ll track her down because they’re meant to be together.

·      During an argument, Mike shuts Mary’s fingers in a drawer. Neighbours hear screams and call the police again.

Threats of violence, physical violence, sexual assault, and stalking, are illegal. Every person has a right to live free from abuse, and a right to legal protection. Under the Family Violence Protection Act there are various courses of action the police can take.

·      Criminal options. If the police conclude a crime has been committed, they can investigate and charge Mike (even if Mary refuses to make a statement). Mike could be arrested and held by police.

·      Civil options. Police can issue a Family Violence Safety Notice to protect Mary. The notice would prevent Mike from contacting Mary for a set period of time (usually 2 – 4 days) but the notice could be extended. Another civil option, which can be initiated by the police or Mary (and would be the most likely option for Jane in the first example), is an intervention order. This order can apply if violent incidents have happened in the past, and are likely to happen again. The order could prevent Mike from contacting Mary, or allow contact but without violence. If Mike breaches a notice or order, this would be a criminal offence and the police could charge him.

There are organisations in each State and Territory that support vulnerable people (usually women) suffering physical and emotional abuse. These organisations are often an excellent starting point for information and assistance.

Legal Beagle: Violence in Sport

Here is the February column I wrote for Hearts Talk, the fabulous Romance Writers of Australia magazine about all things writing. The column gives a few pointers on the laws of defamation, and is directed to writers who may be interested in this topic. So ... I hope the writers among my readers find it useful.

Novels that focus on elite athletes and their involvement in competitive sports (often contact sports like the various codes of football, or boxing and cage fighting) are increasingly popular.  For this week’s column, I thought I’d look at some of the issues arising out of contact sports, and their legal implications. Can our characters injure someone else on the field all in the name of sport? What is the difference between a simple sporting transgression, and a serious assault?

1.  Inherently dangerous games such as boxing. In the late 1800s, the courts took the view that unregulated prizefights threatened public interest in the maintenance of good order. But with more clearly defined rules, and growing popularity, boxing was ultimately held to be ‘a demonstration of sparring’ and therefore legal. Meaning boxing was seen as a skill, and not a criminal act. Today, boxing and other contests (such as kick boxing and wrestling) where it is likely one of the combatants will be injured, are regulated by legislation. For example, boxing in Victoria is regulated by the Professional Boxing and Combat Sports Act 1985 (Vic). You can find this legislation, and other State equivalents, on austlii.edu.au. Other sports have a regulatory framework too, but it is usually left to the governing bodies of the relevant sport, such as a football association, to regulate players and breaches of the rules.

2.  Other contact sports such as football or basketball. The most relevant area of law here is assault. Assault laws can be civil (assault and battery) or criminal (assault), and deal with situations where there is an application of force without consent. These laws are relevant on and off the sporting field—but the law assumes that there is implied consent to most physical contacts in ordinary life (like bumping into someone accidently while getting onto a bus).

In a contact sport, what is the level of physical contact a player is taken by law to consent to? If the act occurs during the course of play, and in accordance with the rules and usages of a game, there will be implied consent. If however there is a malicious use of force that is intended to cause injury, or if the act is reckless (so the perpetrator doesn’t care whether it causes injury or not) there will be an offence.

During an AFL game, Victoria leaps for the ball and catches it. She loses her balance as she lands and bumps into Maria, who falls and breaks her ankle.

Victoria and Maria are participating in a physical or inherently dangerous sport, and Victoria was playing within the rules. Maria will be taken to have impliedly consented to physical violence and the injuries that might result.

David and Drew, playing AFL, leap for the ball at the same time. While still in the air, David elbows Drew in the head and breaks his jaw.

If the level of violence has gone beyond the rules and parameters of the game, it will potentially be illegal. But if there was simply an error of judgment on David’s part (for example, intimidatory conduct instead of a deliberate act or intent to harm), he might not be liable.

To sum up, there is a distinction between what happens on the field and what happens off it, but any person (or fictional character!) who goes beyond the rules while playing sport runs the risk of committing a civil or criminal offence.

Legal Beagle: Contracts

I've been so busy posting interviews and reviews I've been neglecting the Beagle! Here is the column I did for the Romance Writers of Australia Hearts Talk newsletter for December . Hearts Talk is packed each month with writing craft tips, author interviews, new release information, brilliant on-line courses (known as OWLS) and many other things. RWA is a fabulous organisation (for romance and non romance writers) - and its magazine (free to all members) is a valuable resource as well!

This month's column is on the topic of contracts (or binding agreements). I know this sounds dry but … contracts are something that come up often in novels. I hope an introduction into what makes a valid contract might prove useful to writers out there!

Legal Beagle: Contracts

Agreements have to comply with the law in order to be binding and enforceable—we saw this in relation to surrogacy arrangements in last month’s column. This column will look at some everyday contractual scenarios that you may come across in your writing.

1. Simon threatens Susie (or someone close to her) with physical or economic harm if she refuses to sell her farm. Any agreement (even if Simon paid a fair price and Susie signed documentation) would be invalid for duress. Consent is an essential ingredient in every contract and Susie did not freely consent to the contract.

2.  Edward promises that if his daughter Emily does well at school, he’ll buy her a car. Emily gets straight A’s but Edward refuses to buy the car. There would be no contract because every contract needs an intention to be ‘legally bound.’ The law presumes that when close family members, or people in a close social setting, enter into an agreement, they don’t intend to contract (the opposite presumption applies in a commercial context).

3.  Jenny and Jay are workmates. Jenny is moving overseas and promises to give Jay her old car. Then she changes her mind. There is no contract because every contract needs ‘consideration’ or some form of payment, and both parties have to provide it. Without payment there is simply a gift (so there’s a chance it will have to be returned if there’s a change of mind). Jay could have given Jenny a dollar when she made her promise—then she would have been bound.

4.  Marjorie, a cat lover, consumes a bottle of wine. Soon afterwards she enters into a contract to buy a $2 000 beagle. Marjorie would be bound by the contract whether she wants the dog or not—provided the dog seller didn’t know she was so affected by alcohol she didn’t know what she was doing.  

5.  James enters into an agreement with Mary, an elderly and unwell neighbour, to buy her land. If James has taken advantage of Mary in some way (for example, he failed to explain the agreement, and didn’t encourage her to get independent advice) the agreement would fail because of inequality in bargaining power—James’s behaviour was unconscionable or unfair. Undue influence could also apply.

6.  Lane offers to pay Adam to teach her about sex. This situation came up in Avril Tremayne’s The Contract (I love this book!) Avril made it plain that Lane and Adam knew their agreement wasn’t binding (even though it was in writing and signed) but merely a series of guidelines. Why couldn’t there be a legally enforceable contract? There would be problems with uncertainty, subject matter, and a lack of intention to be legally bound. And assessment of damages might be tricky too. How do you quantify mediocre sex—not that this was a problem with Lane and Adam …

Statute law applies to many contractual issues—particularly consumer law. Have a look at the NSW Fair Trading site http://www.fairtrading.nsw.gov.au (each State and Territory has something similar). For information on consumer contracts go to the contracts tab (via the consumers tab). Hopefully all your Christmas gifts matched their description, were fit for purpose, and of merchantable quality. If not … consumer law will help!