we cant agree on our property settlement

We Can’t Agree on Our Property Settlement

consumer guarantees1

Consumer Guarantees

consumer guarantees

 

All Australian traders, whether online or running a bricks and mortar operation, must comply with Australian trading laws and this includes consumer guarantees. This includes laws on consumer guarantees. Since 1 January 2011, businesses must provide consumers with guarantees for most consumer goods and services they sell.

Each circumstance is unique, and we are here to listen to your story and find a solution or answer, contact us.

Goods

Consumers have the right to ask for a repair, replacement or refund if the goods sold are:
• faulty
• unsafe
• look unacceptable, and
• do not do what they are supposed to do.

In each case this is according to what someone would normally expect for the type and cost of the particular goods.

Consumers also have this right if the goods sold do not:
• fit the purpose discussed with the shop owner
• match the description provided
• match the sample or demonstration model provided
• have the extra qualities or performance that were promised before the sale.

Services

Consumers have the right to ask for a repair, replacement or refund if the services you sold:
• were not delivered completely or with adequate care and skill
• did not fit the purpose or give the results that had been agreed to
• were not delivered within a reasonable time.

These rights arise from the consumer guarantees under the Australian Consumer Law that provide consumers with a right to seek remedies where there are problems with goods or services. Other laws apply for products and services you bought before 1 January 2011.

What types of businesses must offer consumer guarantees?

Consumer guarantees apply automatically to most products and services supplied by businesses in retail, service, online and hire situations.

No refunds

  1. It is illegal for businesses to tell customers or show signs stating that they do not under any circumstances give refunds.
  2. Must businesses automatically give a repair, replacement or refund? No. This will depend on the consumer showing proof of purchase and whether or not there is a major problem with the product or service.
  3. Proof of purchase can include a receipt, bank statement, a completed warranty card or a lay-by statement.
guarantees and the accc2

Guarantees and the ACCC

guarantees and the accc

Fully defined statutory guarantees apply to all products and services sold in Australia. While there are nine specific rights regarding goods and three regarding service, the essential rules with relation to guarantees are as follows:

  • Goods must be of acceptable quality (taking account of their price and nature) and fit for the purpose they were designed for.
  • Goods must match any description made of them and any sample shown. If you’re buying a product for a particular purpose, make sure you discuss this explicitly with the salesperson. If in doubt, get it in writing.
  • Spare parts and servicing must be available for products for a “reasonable time” after sale.
  • Services must be carried out with due care and skill, and achieve any result specified… If a plumber promises to fix a leak and the leak continues, the onus is on the plumber to repair it.

There are no explicitly specific periods specified for how long goods must be functional for, since this varies enormously depending on the product category. However, as the ACCC has made clear with recent discussions with phone companies, products provided as part of a contract like mobile phones must remain operable and serviceable for the duration of those contracts.

Businesses can extend these rights — for instance by offering a more specific or longer warranty — but they can’t reduce or ignore them. A business might reasonably argue that the conditions applying to an item sold as a “second” are different, but they can’t opt out altogether. A business cannot display a sign stating “no refunds”. As a consumer, you wouldn’t be able to complain about a stitching flaw in a “seconds” pair of jeans, but if they fell apart the first time you put them on, you’d likely be entitled to ask for a replacement or refund, since they don’t meet their intended purpose at all.

The law also clarifies how problems are to be remedied. If the issue with a product is “major” — defined by the ACCC as “one that is so severe that a reasonable consumer would not have bought the good or service if they had fully understood the problem with it” — then the consumer can choose whether they want a refund, replacement or repair and the vendor can’t object to their choice. For less severe problems, that decision can be made by the supplier.

Children

Taking Children Overseas

taking children overseas

A child travelling overseas with a parent can often be an area of concern between separated couples especially when one party has their family roots in a different country. It is illegal to travel overseas with a child under the age of 18 years if Parenting Orders are in place, without permission of all the parties to the Order or an Order of the court permitting travel.
What are your options:

1. SEE A SOLICITOR:  Speak to your Solicitor so that they may communicate on your behalf with your ex and resolve travel arrangements and particulars quickly and amicably.

2. MEDIATION: In the instance communication via solicitors fails invite the other party to Mediation in order to address the issue. If the matter is not resolved at Mediation, the Registered Family Dispute Resolution Practitioner will give you a 60 I Certificate (Family Dispute Resolution Certificate). This Certificate is required to bring an Application before the Court.

3. COURT: Courts are often approached as a last resort. Lodge an Application with the Court in relation to Parenting Matters. You should give yourself enough time, at least 6 months, before your proposed holiday to lodge your Application and have the matter heard and addressed.

A. In order to determine the outcome of an Application the Court takes the following into account:

(i) Length of the proposed holiday

(ii) Effect on the child due to time away from the non-travelling parent

(iii)  Any threat or concerns for the safety of the child or children travelling

(iv)  Whether the Court is convinced that the party travelling will return to the Australian jurisdiction

 

B. The party intending to travel might need to provide the following evidence to the Court:

(i) Proposed length of stay and the purpose of travel

(ii) Benefits, if any, to the child/children from this travel

(iii) Itinerary of proposed travel, copy of the airline tickets, flight details and accommodation details to be provided to the Court and the other party prior to departure

(iv)  Places where the child/children will be staying, contact details, address, e-mail addresses and phone numbers

(v)  Proposed method or methods of communication between the child/children and the non-travelling parent

(vi) Evidence of ties between the travelling parent to Australia such as employment, business interests, close family ties, house, property or assets

(vii) Whether the intended country of travel is a signatory to the Hague Convention on Child Abduction

 

The Court is often concerned about the fact that the party travelling with the children might not return to Australia. The Court might in that instance require a surety to be provided by the parent intending to remove the children from the jurisdiction and to ensure the safe return of the child/children.

The sum for the surety is determined so as to be realistically enticing enough to ensure the return of the travelling parent and sufficient enough to enable the non-travelling parent to take measure for the recovery of the children in the event of an unfortunate turn of events.

If you are intending to travel with your children steps need to be taken well in advance of your departure date so that you are not stopped at the Airport.

personal properties and securities act

Personal Properties and Securities Act

personal properties and securities act

Are you ready for the PPSA?

New legislation called the Personal Property Securities Act (“PPSA”) came into effect recently.  It will dramatically alter the way we deal with personal property and the way in which security over personal property can be protected.

“Personal property” is any property (except real estate and fixtures to land) such as machinery and equipment, motor vehicles, book debts, stock, trademarks and patents etc.

The PPSA will regulate any “security interest” in personal property.  If you do not protect your rights you risk losing your interests in that property.

For example you could lose:

  • priority to another creditor; or
  • title to your property if it is left in the possession of someone else (eg. if they sell it or if they go into liquidation etc ).

How does the PPSA affect you?

If you answer yes to any of the questions below, you should contact us to discuss how the PPSA may affect you and what steps you should take to protect your interests.

  • Do you own personal property that could be in someone else’s possession for longer than 90 days ?
  • Do you consign goods to other people to sell ?
  • Do you manufacture and sell goods ?
  • Do your conditions of sale state that you retain ownership until you are paid (i.e.
    retention of title clause)
  • Have you granted “fixed and floating” charges or have they been granted to you ?
  • Do you include charging clauses in your standard documents to give you security for an obligation ?

Registration

A single national online register of Personal Property Securities interests called the PPS Register (“PPSR”) has been established.

It is essential to register your security interests in order to obtain priority. By registering your security interest you can prevent another person taking ownership of your goods.

Any delay in registering your security interest or inaccuracy in the registration could be disastrous.  New security interests created must be registered quickly and in some cases may be registered before the transaction is completed.

 

Questions?

If you have any questions about this blog post, do not hesitate to contact McLaughlin & Associate Lawyers via call or email.

Alternatively, you may visit our office in Springwood.

dont be threatened into doing nothing2

Don’t Be Threatened Into Doing Nothing

dont be threatened into doing nothing

 

So often we come across situations where a client has been reluctant or hesitant to proceed with a separation, property settlement, or children’s matter because of threats or blackmail from their partner.

Quite often a husband will threaten his wife that he will show she is “an unfit mother” because of something she did in her youth or something which the wife and husband both participated in consensually during the course of their marriage.  A spouse/partner may quite often feel that they would suffer public humiliation over their escapades and that it will end up splashed across the newspapers and over the internet.  We have had innuendoes about sexual escapades, social drug taking, and shoplifting levelled against clients in the hope that they will cave in.

Often a client will relate to us that their partner has threatened that if they don’t give in to their demands or if they don’t get what they want they shall bring up blah, blah, blah or that if he or she tries to leave they will never see their children again because they will let it be known that blah, blah, blah.

Two things prevent this bullying from succeeding.  Firstly, we as lawyers have a duty to the Court not to unnecessarily raise irrelevant, unnecessary, or intentionally inflammatory or embarrassing matters which have no relevance or bearing on the case at hand.  So therefore what a person may have done in their youth or may have done in the past will not and should not be raised unless it has some relevance to the property settlement and/or children’s issues and invariably they don’t.  In fact the Court takes a particularly dim view of a party who seeks to use or capitalise on such issues.

Before a trial commences each of the parties make submissions to the Court to strike out any offending or irrelevant material from the record.  If successful, reference cannot be made to that issue in the course of the trial and the Judge does not take it into account.

Secondly, there is a ban imposed on anyone publishing the names, address, or employment of a party in Family Court proceedings.  It extends to witnesses and to anything which may lead to the identification of a party or witness to the proceedings.

So even if for some reason the circumstances of a case were published in the papers it would be done in such a way that the parties identities are not revealed.  You may have seen newspaper reports of Family Court proceedings where the parties are referred to as, K v K or C v C.  That is to protect the identity of the parties.

Section 121 of the Family Law Act is unequivocal in stating that:

1.   A person who publishes in a newspaper or periodical publication or by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this act that identifies:

(a)   A party to the proceedings;

(b)   A person who is related to or associated with the party to the proceedings or is, or is alleged to be in any other way concerned in the matter to which proceedings relate; or

(c)  A witness in the proceedings;

is guilty of an offence punishable upon conviction by imprisonment for a period not exceeding 1 year.

It’s amazing the relief that I have seen from the faces of clients who may have been held to ransom for years by belligerent, bullying, overbearing, and intimidating partners when they realise that their “little secret” is not going to end up on the front page of the morning paper and that they can stare their partner down thus allowing them to pursue their full rights and entitlements without fear.

Room

Who Is Entitled to Read the Will of a Deceased Person

Who is entitled to read the will of a deceased person

This is something we encounter quite a lot from people who believe, for whatever reason, that they are entitled to read or obtain a copy of a Deceased person’s Will.

But who is actually entitled to do so?  The answer lies in Section 33Z of the Succession Act.  Section 33Z (1) (a) says that only an entitled person can inspect a deceased persons Will.

So who is an entitled person? Again we need to go to Section 33Z(4) of the Act which states that an entitled person is either of the following:

(a)   a person mentioned in the Will, or mentioned in any earlier Will as a beneficiary; or

(b)   is a spouse, parent, or child of the Testator; or is a person who would be entitled to a share of the Estate if the deceased had died intestate; or

(c)   a parent or guardian of a child mentioned in the Will or who would be entitled to a share of  the Estate if the Testator had died intestate; or

(d)   a creditor or other person who has a claim against the Estate.

So if you are named as an Executor of a Will and someone demands to read or obtain a copy of the Will, first make sure they are entitled to do so.

Should you wish to discuss any matters regarding the matters raised in this article please contact Mr John McLaughlin of McLaughlin & Associates on 3808 7777.

importance of having a will2

Legalese and Parenting Matters

Family Law Practitioners no longer refer to terms such as “custody” “access” and “guardianship” when dealing with parenting matters as these terms imply ownership. There are no property rights which attach to children.

Instead the following terms are utilised:-

“LIVES WITH” – which details the person with whom a child/ren is to live;

“SPENDS TIME WITH”  which defines the extent of contact between a child/ren and the other parent;

“SPECIFIC ISSUES”   which sets out various aspects of parental responsibility, such as schooling.

Unless a Court orders otherwise, there is an automatic presumption that both parents equally share parental responsibility for their children until the children reach the age of 18 years.  This parental responsibility remains whether or not either party decides to remarry or have other children.

When parents are able to agree with whom the children live with and also agree when they are to spend with the other parent, we recommend that a written Agreement be signed by the parties and filed with the Court. These Agreements are known as “Consent Orders”. The reason why we recommend parents enter into Consent Orders is that unfortunately sometimes relations between parents deteriorate after separation. Consent Orders provide an enforceable obligation (which is enforceable on both parents) regarding the care of the children.

Occasionally parents need assistance to work out what is the best care regime for their children after separation.  In this instance, mediation is beneficial to bring about a resolution without the intervention of the Court.   Once mediation has been undertaken and a resolution reached, the Agreement can then be documented into Consent Orders.

If parents are unable to agree on parenting matters, then a Judge will make Orders specifying with whom the children are to live with and the time the other parent is to spend with the children.

Where a matter is referred to the Court, a Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. Therefore, we find that it is much better for parents to enter into an Agreement that they can both live with and operate within the scope of an Agreement instead of a Judge imposing an order on the parties.

enduring power of attorney

Enduring Power of Attorney

enduring power of attorney

Enduring Power of Attorney

When people think of estate planning they usually think of the need for superannuation, life insurance and income protection but equally important is the need for a Will and an Enduring Power of Attorney. I have spoken at length over the last month about the need for a Will now I wish to turn to the equally important aspect of having an Enduring Power of Attorney.

What is an Enduring Power of Attorney?

It is a document given by one person (the Donor) to another person (the Attorney) which enables the Attorney to act on behalf of the Donor and to do all things which the Donor could himself do. The Attorney in effect steps into the shoes of the Donor and can sign documents, access bank accounts etc.

Why do I need one?

Everybody should have an Enduring Power of Attorney appointing either their spouse, relative or close friend to act on their behalf in the event that they are either absent or mentally incapable of handling their affairs eg. if you are out of town and need documents signed or access to monies or something to be done on your behalf which only an authorised person can do for you.

But the real benefit of an Enduring Power of Attorney is that the power to act on your behalf continues after you become mentally or physically incapable of doing things on your own behalf. For example, we have had cases where the husband and wife may, for tax purposes, have an investment property, shares or money invested in one persons name only. That person has suffered a stroke, heart attack or been in a motor car accident such that they are either physically or mentally incapable of handling their own affairs. The spouse may need to sell some of the assets or access some of the money in order to provide ongoing medical care for the injured party but because they don’t have an Enduring Power of Attorney that cannot easily be done. Instead, a Government appointed Trustee is nominated and as you can imagine, the process becomes very expensive and bogged down with red tape. That could all have been avoided by the making of an Enduring Power of Attorney.

Who should have one?

The simple answer is: Everybody! Spouses should each have one appointing the other their Attorney, the same applies for people in defacto relationships. But also think of the need for the elderly to appoint a child or children Attorney for them and also single children appointing a parent or parents as their Attorney.

It is especially important for adult children to think about their parents as they get older. By having an Enduring Power of Attorney a son or daughter can help their parents as they get on in life with accessing bank accounts, handling documents etc and in the event of mum or dad suffering a stroke or heart attack being able to handle their affairs.

For example, we had a case where an elderly woman suffered a stroke and was physically and mentally incapable of handling her affairs. The family home was in her name only and the children had to place her in a nursing home. The problem was that the home had to be maintained, the rates and insurance paid as well as meeting the costs of nursing care. There was no Enduring Power of Attorney. If there had been, the children could have sold the family home, placed the proceeds on trust for mum and met her ongoing care from the sale proceeds.

So think about it, if you have parents (it doesn’t matter how old they are now) seriously consider the benefit to them and you of having an Enduring Power of Attorney so that one day you will not face the same problems as the family mentioned above.

 

Video 

Prefer the video format? Our principal, John McLaughlin, provides an informative Law Talk episode about the Enduring Powers of Attorney

the importance of having a will

The Importance of Having a Will

importance of having a will

It never ceases to amaze me the number of people who don’t have a Will or if they do have one it is grossly outdated and does not reflect their current circumstances.

The bottom line is that everybody from the age of eighteen (18) should have a Will and that Will should be reviewed regularly to ensure that it keeps up with your changing circumstances.

But first, lets go back to basics. What is a Will? A Will is a legal document that enables a specified person or persons (your Executors) to distribute your assets according to your wishes when you die. Your assets include your house, land, car, bank accounts, insurance/superannuation policies and any other goods that you may own at the time of your death.

Your Will sets out which asset goes to which “beneficiary”. Beneficiaries can be family members, friends, charities or other organisations. If you have a young family, your Will can also state who is to be the legal guardian of your children in the event that they are left without a parent.

For the time being, keep this in mind, if you don’t have a Will then you don’t have a say in how your assets will be distributed or who will administer your estate for you. That will be done by the Government adhering to a rigid formula.

If you don’t have a Will or you need to review your existing one, please don’t hesitate to contact us.