Ah the joy of Christmas! 

Some of us look forward to it with glee, while others (like moi) can’t wait for it to pass. Whatever camp you belong to it’s important to be aware of your consumer rights, because Santa won’t be telling you about them.

Let’s have a look at some usual suspects that are always naughty but never nice.

1. Bought it on special… so no guarantee?

In Australia we have this wonderful thing called the Australian Consumer Law which is there to protect us from all the dodgy deals and ‘special’ conditions we come across.

Where guarantees are concerned, the law is clear. It doesn’t matter whether you got something for 95% off or ‘on special’, the seller must still give you a guarantee on anything you have bought that is under $40,000. If you are lucky enough to get given some real bling worth more than $40K, you have a guarantee on these items, if they are for your personal or household use.

It is also against the law to display signs that say: ‘We do not give guarantees’.

2.  Your new wind up Ken doll won’t work

This would be called a minor problem and if the seller is prepared to offer you a free repair you must accept this in the first instance. But if after the repair, Ken still won’t stand up erect, you can ask for a refund or a replacement.

Sellers are also allowed a reasonable period of time to repair minor problems so give them a few weeks before
you up the ante.

If the business fails to fix your problem, you’re more than entitled to get Ken repaired elsewhere and pass on the costs to the business or ask for a replacement or a refund. But remember that directly working it out with the seller is always easiest on both you and Ken.

My mum also wanted me to mention that exercising patience is a virtue.

3.  The dodgy deck tradesman

A wise old man told me that honest and reputable tradesmen only want your money when they’ve completed a job well done. So a good way to protect yourself here is to pay on the satisfactory completion of your job.

Dodgy tradesmen occasionally make cameo appearances in your life when you’re rushing to get things right around the house for Chrissy. You’re still entitled to a guarantee for the work or service these dodgy Dans provide. It doesn’t matter if they are licensed or not.

If the quality of the work is substantially unfit for its purpose and can’t easily be fixed within a reasonable time or is just unsafe this is classified as a major problem. You can bypass the ‘getting them to repair the mess’ stage.

As soon as you identify the problem, contact the business to explain the problem and the outcome you want. In many cases a simple phone call can fix the problem. But if Dodgy Dan won’t sort it out with you, write a complaint letter so he is clearly aware of the problem and what you want. Make sure you also have a record of your contact with him/her.

If direct contact with the business fails, you may wish to: report the business to your state & territory consumer organisations and lodge a complaint with your state & territory small claims tribunals. And whatever you do… stay off that dodgy deck until it’s fixed properly!

4.  Hey this looks nothing like the picture on the box 

Businesses are not allowed to make a false impression and this also applies to their advertising, their product packaging, and any information provided to you by their staff or online shopping services.

It makes no difference whether the business intended to mislead you or not.
If they sweet talk you in their ads or fool you with their packaging and all you get is a brown banana, then their behaviour is likely to breach the law.
So if what you saw on the packet or online isn’t what magically appears when you open your holiday season purchase, you’re entitled to ask for a replacement or a refund.

If you don’t get it, make a consumer complaint.

5.  Rip-off packaged gift sets and hampers

Watch out for this usual suspect at Christmas, the rip-off box sets or hampers, where you’re paying an enormous mark-up for what is in essence just a basket or box. For example, the contents of a $120 gift basket from a certain department store cost just $44 when bought as separate items from the local supermarket.

That’s one expensive woven basket!

6.  The interest free offer with a big sting

It’s often around the festive season that those annoying loud ads appear on the box offering 48 months interest free, when you purchase something very expensive off that business, like a fancy 4D TV or an enormous fridge you probably don’t need.

48 months interest free always sounds tempting when you’ve got a lot of spending to do. However, one study found 30% of customers said the salesperson had not explained that they would be charged interest once the interest-free period ended, while less than a third read the paperwork in detail.

Customers particularly were not aware of the fees, commitments, extra charges and interest-free period expiry date. This is where interest-free services become less enticing. “Interest free” is only available for the life of the loan. You have the flexibility to pay for your purchases with low weekly repayments and offset interest, but the fine print can sting if you don’t tread carefully.

Making late payments with most of these interest free store cards incurs a penalty fee, as can early payments so use your interest-free store card or interest free loan on purchases wisely and form a personal payment schedule to pay off the entire debt by the interest-free expiry period so you won’t be subject to any nasty surprises.

If you think you have been wrongly charged or misled make a consumer complaint.

7.  Get lost… You don’t have a receipt

It happens to the best of us, you buy something and can’t find the receipt. So you go back to the store to tell your story of woe and find a salesperson whose pre-sale charm seems to have expired telling you to be gone!

However, under the consumer law, a receipt may be recognised in many different ways. For example, a credit or debit card statement; a lay-by agreement; a receipt or reference number given for phone or internet payments; a copy or photograph of the receipt and even a barcode linked with the purchase.

With receipts the law is clear – all businesses must always give you one or proof of purchase for anything over $75. If they don’t, ask for one. You also have the right to request a receipt for anything under $75.

8.  It’s too late to complain, it’s your problem now

There are limits on the remedies available to you where a seller has failed to live up to your consumer guarantee. Just remember that you probably won’t be able to reject goods you have bought if the ‘rejection period’ for the goods has ended and by this think of what would be a ‘reasonable’ time for something to breakdown.

So if the toaster has lasted 10 years and it suddenly won’t work you can’t reject it and ask for a refund (or repair) because that would be a reasonable life for a toaster. Also, if you have lost, destroyed or disposed of any nightmare purchase, then all is lost for you making a claim.

9.  Christmas “clubs” that don’t save money

Christmas savings clubs offer a means to store up cash and take the stress out of shopping, but also come with a range of catches. These clubs, don’t normally offer interest on your savings, so it may be better to save in an interest-paying bank account. Also, they limit you to a set of pre-picked retailers so you may be missing out on the best deals or the items you really want to buy at the time.

10.  Charity Christmas cards 

You buy charity Christmas cards with good intentions but it may surprise you to learn that several such cards only transfer one-tenth of their proceeds to the advertised charity. Card producers are legally obliged to state exactly what proportion of their profit they donate to the charity. Keep your eyes peeled for this if you want to put your compassion to good use; don’t just fall for the charity brand printed on the product.

You also have no responsibility to return cards that mysteriously arrive in your letter box.

11.  Fake Parcel Collection

The Australian Competition and Consumer Commission, our national consumer law champion, in the past has warned people to watch out for scammers who send emails posing as postal services and asking for money for parcel delivery.

The con artists pose as Australia Post or FedEx, and send emails telling people they missed a parcel delivery at home. The emails say that information for retrieving the package is included in an attachment. But the file once opened, will install ransomware on your computer. This yucky malware restricts access to the computer system that it infects, and demands a ransom be paid to the creator of the malware in order for the restriction to be removed.

Other scams offer to redeliver the parcel at another time for a fee of up to $30. How rude is that? …so watch out.

12.  They said it would make my hair shine like a thousand stars 

Well we all want to look our best at Christmas but in the law we call this puffery. Nice word eh? It simply means that if the claim a seller makes is so absolutely ridiculous that no ordinary person would believe it then you can’t claim the seller or manufacturer was trying to fool you.

But then again, I hear that a little puffery is oft’ spoke under the mistletoe.

Jingle Bells to all our wonderful Eaglets for 2018!
Unfortunately, our friends at Scamwatch have again needed to warn all festive shoppers to avoid being caught out by holiday season scams.

“Scammers will take advantage of special days or major events like Christmas to fleece people of their money or personal information,” ACCC Deputy Chair Delia Rickard said.

Here are three common holiday season scams people should look out for:

• Online shopping scams: scammers will set up fake online stores or post goods for sale in buy‑swap-sell groups or online classified sites to trick people into buying items that don’t exist. This scam has cost Australians nearly $3 million in 2018, with more than 8,700 reports.
• Travel scams: scammers trick people into believing they’ve won a holiday or scored a really good deal on a travel package, like a cruise. Unfortunately the prize or the cheap accommodation are phony. In 2018, nearly $135,000 has been lost to this scam.
• Parcel delivery scams: scammers may ask you to print off a label, do a survey, claim a prize, or view the status of your delivery by clicking on a link or downloading an attachment. Some scammers may even call or text with claims about an unsuccessful delivery. These scams are aimed at getting people to download malware onto their computer, or give up their personal information. People have lost about $31,000 to these scams in 2018.

“Scamwatch has also seen a massive influx of reports and money lost to tax scams. In November we received 7,500 reports of these scams and $400,000 was reported lost,” Ms Rickard said.

“This isn’t a usual holiday season scam, however a lot of people are getting calls from scammers pretending to be from the tax office or the police and threatening them with arrest over unpaid tax debts.”

“This is a scam. If you ever get a call or email containing threats like this, hang up the phone or delete the email,” Ms Rickard said.

Ms Rickard added that the key to avoiding a scammer’s con these holidays is a healthy dose of scepticism and research.

“We love snagging a great deal online for a loved one’s Christmas present and the idea of a bargain holiday is perfect for many after a long year. But don’t fall for it,” Ms Rickard said.

“Be sceptical about an online store you haven’t used before. Do some research to see if they’re legitimate and don’t be fooled by big discounts. With travel deals, call the accommodation provider directly, for example the cruise line or hotel, to check if the deal is legitimate.”

“If you see a seemingly great deal on an accommodation rental website like Airbnb, make sure you only communicate and pay through the official site to avoid getting stung by a fake listing,” Ms Rickard said.

“We’re all expecting parcels this time of year but be careful about online links and never download attachments. If you’re wondering if a delivery notice is legitimate, check the tracking number at the Australia Post or other delivery company website, or call them directly using a number you find from an online search or the phone book.”

“While with friends and family over the holidays, consider taking the opportunity to spread the warnings about these scams particularly to those loved ones who may be vulnerable.” Ms Rickard said.

Further information about holiday season scams are also available at www.scamwatch.gov.au.

So you’re now all savvy about those ‘bah humbug’ Christmas fiends, please be alert to them at all times.
Remember, if something seems fishy or sounds too good to be true then it usually is.

Oh and on behalf of everyone at the Legal Eagle, we hope you and your family have a safe and happy holiday season!  See you in 2019.

At times of separation and divorce I often see very reasonable people morph into very difficult people. The task of putting together a fair and workable parenting plan is often clouded in by the animosity and resentment of folk who are still ‘red hot’ angry and not  thinking clearly because of the split.

Don’t get me wrong, most of these people truly want the best future for their children, but not necessarily for each other. Time is a great healer when it comes to that, but parenting arrangements just can’t wait. They need to be done and done well so that kids have stability and routine in their lives. How do you get a great one worked out post the split when emotions are on the boil?

Let me tell you something, you need to firstly calm down and not bother with any point scoring or game playing with the ex. Traps are often set by the other party to stir the pot, paint you as a bad parent and create barriers. Ignore them and don’t play along.
Keep focused on one thing only- a plan that is in the best interests of your child(ren).
The more you play another parties’ games, the more you will feel the need to fight rather than plan.
Wear them down with your cool clearheadedness.😉

Why? Because a well thought through and workable parenting plan is worth it’s weight in Kalgoorlie gold. Think of it as an easy to follow roadmap that will get you off of those confusing unmarked back roads of parenting after divorce or separation. A plan that tells you what your roles are is a necessity for success for you AND a real calmer for the kids.

So what exactly is a parenting plan?

A parenting plan is a voluntary agreement that covers the day to day responsibilities of each parent, the practical considerations of your kids’ daily life, as well as how the two of you will agree and consult on important long-term issues about the kids. The plan can be changed at any time as long as both parents agree.

Who can make them?

To be a parenting plan under the Family Law Act (the law relating to this), your plan must be made and signed by both parents. However, other persons, such as grandparents or step-parents, can be included in a parenting plan.
And on that point I want to tell how wonderful and supportive 99% of grandparents are to both parties and how much kids just adore them.

Make sure that you type up the agreement, date it and please ensure that you both sign it. It does not need to be witnessed. This is an agreement of trust between the two of you and is not legally enforceable. It’s like saying we don’t want to drag this through the courts because we have this plan which we both think is in the best interests of our kids.

Importantly, it must be made free from any threat, duress or coercion.

Not sure about an informal agreement?

If you’re not at a very high trust level with an informal agreements you can make an application to the court to have your plan sealed by the court. These are called ‘Parenting Orders by Consent’. It’s a fairly simple process and you won’t have to spend much (if any) time in court to get this finalised.

Once made, these orders are legally binding – they have the same effect as any other parenting order made by a court.

98% of kids want time with mum and dad

If parents can’t work out parenting arrangements it’s off to court you go and much of power you both have ends up under the scrutiny of the Judge’s discretion based on the evidence presented. Simply, it’s an awful process and everyone gets very stressed by courts. If your self representing it’s a very hard time indeed.

The court must consider the most recent parenting arrangement or parenting plan when making parenting orders in relation to the kids and the extent to which both parents have complied with their obligations in relation to the child, which may include the terms of a failed parenting plan.

Before I describe the benefits of having an effective parenting plan, let me describe what happens when you don’t have one, or have only a bare bones excuse for a plan. Your kids pay the price.

• They end up missing out on time with one parent or the other
• They miss out on time with their friends or participating in activities
• They may not receive timely or adequate medical care
• They may not receive important psychological care
• They lose touch with grandparents and other extended family
• They feel frustrated, sad, disappointed, and angry much of the time because their lives aren’t working very well
• They resent their parents for getting divorced in the first place or for putting them in the middle of parental disagreements or power struggles

There are a number of reasons that parents end up with only a minimal or ineffective parenting plan. Chief among them is that parents are trying to think through how they are going to parent their children after divorce or separation during one of the most stressful, emotion-filled times of their lives. It is an overwhelming, daunting task for even the best of you guys and gals.

If that sounds like either of you, call in a mediator like Relationships Australia to help the two of you work things out. Lawyers can be helpful but they are very expensive so I encourage you to save money and start with a mediator.

The drafting of a parenting plan is important and can also be done relatively inexpensively. Here at The Legal Eagle, our legal drafters (who are qualified lawyers) have been helping write parenting plans and all sorts of court documents for self representing parents for about a third of the price lawyers charge. Drop us a line if you’re struggling with your family law matter, we’d be more than happy to help.

What can be included in a parenting plan?

Your plan will be unique to your circumstances. It should be practical, simple and as concrete as possible. A parenting plan can deal with any aspect of the care, welfare aspect of the care, welfare and development of a child.

The kinds of things that may be covered in a plan include:

♦ How the parents will share parental responsibility and consult about decisions (like which school the child will attend)
♥ Who the child will live with
♦ What time the child will spend with each parent
♥ How and where the changeovers are to occur
♦ What time the child will spend with other people, such as grandparents
♥ How the child will communicate with each parent or other people (eg by phone, email or letters)
♦ What arrangements need to be made for special days, such as birthdays and holidays
♥ What process can be used to change the plan or resolve any disagreements about the plan
♦ Any other issue about parental responsibility or the care, welfare and development of the child.
♥ What financial responsibilities will each parent have (outside of Child Support) for all the odds and ends expenses that pop up (School trips, uniforms, sports activities, special outings, miscellaneous health appointments etc)
♦ A timetable to evaluate and change the parenting plan if needed

Please note that any changes to the care arrangements for your children can affect child support, income support and family assistance payments. If you have a parenting plan and Child Support (CS) has a copy of it, CS can base your care levels in your child support assessment on the care levels outlined in the plan.

If your parenting plan specifies amounts for child support payments, CS cannot enforce it unless it is also a valid child support agreement and you or the other parent ask CS to accept it. However, parents who agree to less child support than the amount assessed under the child support formula can do so, as long as they get legal advice. Don’t forget he amount of Family Tax Benefit Part A you receive is based on CS’s formula assessment, not the child support agreement.

What Does ‘The Best Interests Of The Child’ Mean?

When you make decisions about your child their needs must come first. So naturally the most important thing for you to consider is what is best for your child. Children have the right to know both their parents and the right to be protected from harm.

However, the safety of your child(ren) must come first when considering your child’s best interest. These are important things to think about. If there is a history of one parent being aggressive or involved in any form of emotional, psychological or physical abuse, it will be difficult to get anything more than supervised time in a parenting plan. However cooperation and good behaviour during supervised visits  can open the way for unsupervised time.  If the kids are in their adolescent years you might want to think about any views they’re expressing about where they live and go to school. Relationships and time with extended family significant to them (such as their grandparents) also shows a real concern for your kids’ best interests.

Equal shared parental responsibility?

Except where there are issues of violence or abuse, the law presumes that it is in the best interest of a child for the parents to have equal shared parental responsibility. This does not mean that the child should spend equal time with each parent. Rather, equal shared parental responsibility means that both parents have an equal role in making decisions about major long-term issues that affect their children, such as schooling and health care. If you agree to share parental responsibility, you will need to consult with each other and make an effort to come to joint decisions about long-term issues. However, when the child is spending time with you, you will not usually need to consult on decisions about things like what the child eats or wears because these are not usually major long-term issues.

Benefits of a Well-Designed Parenting Plan

Earlier I said that having a well-designed plan is worth it’s weight in gold to parents. I mean that. When the day-to-day decisions of your life as a parent are planned for and running like clockwork, children and adults alike can breathe easy. When you know how you are going to handle special events, holidays, vacations, medical care etc. your brain and your blood pressure are going to thank you. Of course there will always be some event that hasn’t been planned for – just to keep you on your toes! After all, we are talking about human families here. But generally, your life and the lives of your children will go much more smoothly.

Here are just a few of the many benefits of having a good parenting plan:

• Peace of mind for adults and children
• Less stress
• You put a safety net under your children so they don’t fall through the cracks
• You are able to focus on parenting your children when they are with you rather than fighting with the other parent
• You and your children have a schedule that provides emotional safety and routine
• You are able to make plans for the times when you have your children with you and when they are with the other parent
• You are able to avoid going back to court to solve parenting disputes

What Goes Into an Effective Plan?

Remember this about your parenting plan: one size does not fit all. The plan you and your child’s other parent develop will be as unique as each of the individuals in your divorced family. The ideal plan will take into consideration all of your family members’ needs – especially your children’s needs.
Try to see this experience through your children’s eyes. It will likely be quite different from yours.

Essential Elements

• A clear, well defined schedule including provisions for holidays, vacations, school vacations etc.
  
• Outline of who is responsible for making decisions and how those decisions are made if both parents are responsible.
• A plan for who provides transportation to the other parent’s home and to extracurricular events etc.
• A plan for financial responsibilities for each parent.
  
• A plan for specific parenting responsibilities (e.g. who stays home when a child is sick; who goes on school field trips and other events; who helps with homework; who takes kids to medical and dental appointments etc.)
  
• A forum for managing disagreements when they arise.
  
• A system for sharing information.
  
• A timetable to evaluate and change the parenting plan if needed.

Dr. Robert Emery, an eminent American psychologist and expert in family relationships and children’s mental health believes that separating parents fall into three types. Sometimes they stay fixed in these types and sometimes they move forward because they know it will benefit the kids.
The types include:
Angry: Couples in angry divorces/separations feel rage and pain vividly, have trouble letting go of the relationship, and may be so enmeshed in conflict that emotionally they are as involved in each other’s lives as they were when together.

Distant: Where parents keep their marital conflict pretty well hidden from their children. Many parents with a distant divorce are extremely hurt and angry or frustrated and resentful, and the distance helps keep their rumbling volcanoes from erupting. Distant divorcers are child centered and competent parents. In fact it may be their commitment to their children that keeps them from going to war.

Cooperative: These parents are rare, at least in the beginning. Cooperative divorces/separations generally involve parents who understand children and empathise with their feelings, and who accept their responsibility as parents. They have done a good job of protecting children from marital conflict.

Now let’s apply these considerations to some sample parenting plans.

Sample Parenting Plan for Early School Age Children from 6-9 Years

Angry:

• Every Friday from after school until 5:00 P.M. Saturday.
  
• Every other weekend from 5:00 P.M. Friday until 4:00 P.M. Sunday. Alternate Mondays from 5:00 P.M. until 7:30 P.M. on the Monday following the weekend spent with the residential parent.

Distant:

• Every Friday from after school until 5:00 P.M. Saturday. Every Monday evening from 4:30 P.M. until 7:30 P.M.
  
• Every other weekend from 5:00 P.M. Thursday until 4:00 P.M. Sunday. Alternate Thursday evenings from 5:00 P.M. until 7:30 P.M.

Cooperative:

• Every Thursday from 5:00 P.M. until 5:00 P.M. on Saturday.
  
• Every Wednesday from 3:00 P.M. until 5:00 P.M. on Saturday with one parent; every Saturday at 5:00P.M. until 3:00 P.M. on Wednesday with the other parent.
  
• Every Monday and Tuesday with one parent; every Wednesday and Thursday with the other parent. Alternate weekends from Friday through Sunday with each parent.

Clearly, the cooperative has more flow, flexibility and trust and although it may not be a starting point for you it’s something both parents should be aiming for.

Parenting plans are challenging and involve giving ground and respectful negotiation. They get done at a difficult time for everyone so utilise the assistance of a good mediator if your communication with each other is poor.

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Check out some of our FREE family law resources HERE

And if you’re struggling and need low cost help with your documents or the legal process contact us and make an appointment to get the ball rolling HERE