Side-Stepping Thresholds & Defences with Consumer Protection Legislation

Australian consumers are very fortunate – we have a fantastic Consumer Protection regime which is generally well enforced by the ACCC.

What we are beginning to discover however, is that the Consumer Protection legislation, at least at face value, has much wider-ranging application than just giving you protection when you buy some dodgy groceries or a new kettle.

So what kinds of relationships between types of cases and these protections are we beginning to see?

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Family Law Series: Enforcement of Court Orders

For Family Law, the type of orders you have in place will determine what options you have in relation to enforcement.

Contravention Applications apply to parenting orders and can be made when one party alleges that the other has failed to comply with the orders. This is most frequent when one party does not allow the other to spend time with the child.

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Family Law Series: Parenting Orders

Parenting orders are a set of orders finalised by the court which detail the parenting arrangements for a child or children. They can be made either by consent or after a court hearing/trial.

The arrangements that parenting orders deal with include where the child is to live, the time the child will spend with each parent or other people (grandparents etc.), the responsibility of the parents and any other important aspect of their welfare, care and development.

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Family Law Series: Financial Agreements v Consent Orders

If you and your partner have come to an agreement on division of property and now need to finalise the agreement, it is important to consider which option is most appropriate for your circumstances.

Financial Agreements are a good option to finalise the division of property without having to go to court as they do not require the court’s approval to become binding. The downfall of this option however is that they do not offer the same protection for further claims as would filing Consent Orders with the court.

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Family Law Series: What is a Parenting Plan?

A Parenting Plan is an informal written agreement between the parents of a child, setting out the parenting arrangements. Parenting Plans are designed to be a less formal process than court to document a parenting agreement.

For a Parenting Plan to be considered effective, it must be signed and dated by the parents of the child. This can include grandparents, step-parents or other legal guardians.

If a Parenting Plan details information on child support, a copy should be provided to the Department of Human Services (DHS). This can assist with a determination of how much child support is payable where it details the amount of time spent with each parent. If the plan specifies amounts payable for child support, this cannot be enforced by DHS unless a separate child support agreement is in place and has been accepted by them.

Parenting Plans are not legally enforceable as they cannot be registered with the court. For an agreement to be enforceable, proper Parenting Orders are required to be made with the court. You should seek legal advice if you are unsure whether you require Parenting Orders.

Injured at Work? Know Your Entitlements.

Injured workers often find themselves in a difficult financial situation. Not only are they struggling with the physical and psychological aspects of their injury but their ability to earn an income has been affected. Often they have a family to support and a reduction in income adds to the stress and anxiety already being felt.

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We’re Separated. It’s Time To Move On. What Now?

Although the statistics for divorce suggest it is becoming more common nowadays, it is nevertheless a difficult time for those going through it. What follows is a (very) brief overview of what happens after a married couple separates and wants to divorce.

Have you been separated long enough?

Before a divorce application can be made, the parties are required to have been separated and living apart for a period of not less than 12 months. It is possible for an application to be made if the parties have separated but continued living together however there must be proof that there has been a breakdown of the marital relationship.

We meet the preconditions. What now?

Divorce applications can be completed by a solicitor or by yourself if you choose to self-represent. A filing fee is payable when lodging the divorce application with the court however applicants with a grant of legal aid or holder of a Centrelink card can apply for a reduction of this fee. If both parties are agreeable to the divorce, a joint application can be made.

Once the application has been lodged, it is required to be served on the other party either by post, process server or electronically and must be accompanied by a form called “Acknowledgment of Service”. It is also a requirement to show proof of service usually via an Affidavit.

Is there a fight? How is it resolved?

A divorce application can only be opposed on the basis that there has not been a period of 12 months of separation of the court does not have jurisdiction.

A hearing will be set down whereby it is required to be proved that a marriage existed (this is usually already done at the filing stage by way of marriage certificate), there has been an irretrievable breakdown of marriage, service of the application has been effected and that proper arrangements have been made for any children under the age of 18. Your lawyer will usually attend the hearing on your behalf unless there are children under 18 in which case you will also be required to attend.

The divorce order will be made at the hearing if the court is satisfied of the above and will take effect 1 month and 1 day after the hearing at which time both parties are free to re-marry.

What about the house? What about the children?

These need to be dealt with separately by a Court or by Consent, and a Divorce application will not resolve these issues. A Divorce application being finalised will also not automatically revoke your Will – if you don’t want your worldly possessions to be passed to your former partner should you pass away, ensuring you have a new Will prepared is essential. If you instruct a lawyer, they should advise you on all of these issues and how to resolve them.

They Owe Me Money! How Can I Get It Back?

If someone owes you money or has some of your property in their possession, there are a number of steps you can take to recover this – and going to Court sometimes isn’t the best first-up solution.

Firstly, in order to save costs, it may be appropriate to discuss the matter with the other person. Sometimes just talking it out reasonably can help you to reach some satisfactory repayment terms (like making a number of payments in a period, or repaying the debt by a certain date). This however may not always be possible if the relationship has soured or the other person becomes increasingly aggressive about the situation – often, chasing debts can cause a lot of friction in a relationship and friendships can break down if debts are not repaid.

If talking to the person is not possible, you can send a letter of demand, and this should be the first step in any recovery for money or property. A letter of demand should include clear details of how much the person owes or the property needing to be returned, a date/timeframe that the money must be paid or property returned and what action will be taken if that does not occur by the selected date/timeframe.

Following a letter of demand, if the money has not been paid or property not returned, it may be appropriate to take legal action. This will require the completion of a Statement of Claim to be filed with the appropriate Court. Because debts can range in size, you might need to file in a certain Court or Division:

If the Debt or Property is valued at less than $20,000, in the Small Claims Division of the Local Court;

If the Debt or Property is valued between $20,001 and $100,000, in the Local Court;

If the Debt or Property is valued between $100,001 and $750,000, in the District Court;

If the Debt or Property is valued at $750,001 or higher, in the Supreme Court.

This guidance is based on a recovery in a New South Wales Court.

There are risks associated with going to Court such as the payment of fees which may not be recovered if you lose or if the person is not in a position to pay the money. There is little benefit in pursuing a debt against a person who you know will not be in a position to pay – whilst you might be successful, it will be a Pyrrhic victory!

A six-year time limit applies for recovering money or property. There are exceptions to this rule however you should consult a lawyer if you are outside this timeframe.

If the Dispute relates to tenants and landlords, or traders and consumers, then it may be able to be dealt with by specialist tribunals.

Do you have more questions about recovering some debt or property? In our free first consultation we can advise you on:

  1. Whether it is worthwhile to pursue the debt;
  2. Matters to consider when pursuing the debt;
  3. The Costs which can be involved in pursuing a debt;
  4. Options to recover the debt without commencing Court proceedings.

Police Abuse of Power….What Can Be Done?

It may come as a surprise to some people, but except for a few necessary exceptions the police are subject to the same rules and obligations as every other citizen. When they exceed their powers or act outside their authority and other citizens are harmed the courts will provide an avenue for redress and in appropriate cases award compensation or damages.
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Mediation & Conciliation – What’s the big deal?

It could be a battle of wills concerning parenting issues, a dispute with an insurer about payment for treatment in some workers compensation cases, or a negotiation process to resolve a common law claim. Maybe it’s a conflict within the workplace, or two business who are having a fight. Parties can become bogged down with their grievances or disputes and it may benefit to bring in an impartial third party to help them find their way to an agreement.
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