Dangerous Driving
The dangerous driving offences are set out in section 52A of the Crimes Act 1900 (NSW):
- Dangerous driving occasioning grievous bodily harm;
- Aggravated dangerous driving occasioning grievous bodily harm;
- Dangerous driving occasioning death; and
- Aggravated dangerous driving occasioning death.
An offence of Dangerous Driving is known as a Table 1 offence which means it is to be dealt with in the Local Court unless the Department of Public Prosecutions (DPP) elects for it to be dealt with on indictment in a higher Court.
The nature and elements of the offence were considered in R v Atkinson (1970) 55 Cr App R 1. It was held that a mechanical defect in a motor vehicle will be a defence to a charge of Dangerous Driving if it causes sudden loss of control and is no way due to any fault on the part of the driver.
Section 52A (5) of the Crimes Act 1900 sets out a number of ways an impact involving the death of, or grievous bodily harm to a person can occur: –
- The vehicle overturned, or left the road whilst conveying the deceased in or on that vehicle (whether or not he or she was a passenger or otherwise);
- A collision (impact) between the vehicle and any object, whilst the deceased was in or on the vehicle;
- A collision between the deceased and the vehicle;
- A collision between your vehicle and another vehicle;
- A collision between your vehicle and an object in which, or on which; or near which, the deceased was at the time of the impact;
- An impact with anything on, or attached to your vehicle;
- An impact with anything falling from the vehicle.
The Court will take into consideration any aggravating factors. Namely: –
- The injuries inflicted;
- Degree of speed;
- Showing off or competitive driving;
- Degree of intoxication or of substance abuse;
- Erratic or aggressive driving;
- Number of people put at risk;
- Length of the journey during which others were exposed to risk;
- Failure to heed warnings;
- Being involved in a police pursuit;
- Degree of sleep deprivation; and
- Failing to stop.
A Dangerous Driving offence is a criminal offence, the burden of proof rests with the Prosecution.
The Prosecution must prove each of the elements of the charge. The standard of proof is beyond reasonable doubt.
For the Prosecution to successfully establish a Dangerous Driving offence, each of the following elements must be proved beyond reasonable doubt: –
- The offender was driving the vehicle;
- The offender was under the influence of intoxicating liquor or a drug; or
- The offender was driving at a speed dangerous to another person(s);
- The offender was driving in a manner dangerous to another person(s); and
- The offender caused grievous bodily harm.
Grievous bodily harm is bodily injury of a very serious kind. This includes any permanent or serious disfiguring of the person, broken bones, damage to internal organs or the destruction of the foetus of a pregnant woman.
To establish Dangerous Driving Occasioning Death, the onus is on the Prosecution to prove the above noted bullet points including the following: –
- A person died as a result.
The following options are available to the accused depending on his/her
instructions: –
- We’ll negotiate with the Prosecutor to have the charges withdrawn, downgraded and/or the Police Fact Sheets amended; or
- We’ll enter a plea of not guilty and proceed to a hearing;
- We’ll enter a plea of guilty to the charges and proceed to dispute the Police Fact Sheets at a special “disputed facts” hearing; or
- We’ll enter a plea of guilty with full acceptance of the Police Fact Sheets; and
- We’ll submit thoroughly researched legal submissions requesting that the Court not record a criminal conviction.
You can apply for a divorce in Australia if either you or your spouse:
- regard Australia as your home and intend to live in Australia indefinitely, or
- are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
Note: Same-sex couples whose marriages are recognised can access Australia’s divorce system if they meet the requirements for divorce under the Family Law Act 1975 , regardless of when the marriage was solemnised. See Marriage equality in Australia on the Attorney-General’s Department website and the Fact Sheet, Family Law implications of the recognition of same-sex marriages for further information.
Applications for Divorce (Same-sex couples) can not be completed online at this stage. Please contact the National Enquiry Centre for more information.
You can obtain legal advice to understand your rights and responsibilities before applying for a divorce or other applications in relation to a divorce. A lawyer can help explain how the law applies to your case.
The Family Relationships Advice Line (FRAL) can help you with free legal advice and information about services available to assist anyone with family relationships issues, including information relating to family law proceedings.
Call 1800 050 321 or if you are overseas +61 7 3423 6878. Court staff cannot provide you with legal advice.
To apply for a divorce you complete the online interactive Application for Divorce and pay the filing fee. For more information and to start your application see, How do I apply for a Divorce?
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.
The only grounds for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
There is a filing fee for divorce applications. Current fees are available on the fees page.
In some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee. To be eligible for a reduced fee for a joint application, both you and your spouse must qualify for the same reduction. If only one spouse qualifies for the reduction, then the full fee applies.
More information about fee reductions can be found on the Guidelines for a fee exemption, reduction and refund page on this website.
The Court does not set the fees payable. Court fees are set by Federal Government Regulations.
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
- there has not been 12 months separation as alleged in the application, or
- the Court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date.
You need to set out the grounds on which you seek the dismissal in the Response to Divorce.
If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.
If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce.
You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You do not need to attend the hearing.
If you want to file a Response to Divorce, you need to file it:
- if served in Australia – within 28 days of the application being served on you, or
- if served outside of Australia – within 42 days of the application being served on you.
You can electronically file (eFile) a Response to Divorce on the Commonwealth Courts Portal or file it at a family law registry.
See the How do I… Register for the Commonwealth Courts Portal and eFile a divorce page for more information.
No children under 18
If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.
Joint application with children under 18
If you have made a joint application, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage aged under 18).
Sole application with children under 18
If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from attending (see below).
If there is no Response to Divorce, the other party is not required to attend, although they may do if they wish.
If a respondent has completed and filed a Response to Divorce, but does not oppose the application, he or she does not need to attend the hearing.
If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.
A child of the marriage includes:
- any child of you and your spouse, including children born before the marriage or after separation
- any child adopted by you and your spouse, or
- any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.
If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must complete a Telephone/Video link attendance request form setting out the reasons why you are requesting to attend by telephone/video link. See Rule 25.11 of the Federal Circuit Court Rules 2001.
The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:
- make an agreement with your spouse and file it with a court, or
- seek orders from a court, where you and your spouse cannot reach an agreement.
For parenting cases, you also have the option to make a parenting plan. For more information about parenting plans, go to www.familyrelationships.gov.au or call 1800 050 321.
If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.
More information can be found under Parenting and Property & Finance on this website.