Once upon a time in the land of his irresponsible student youth, the author admits that upon receiving his first ever shiny credit card, he did incur debts that he couldn’t pay back with speed. And so began the relentless chase by the ‘friendly’ credit recovery business. Day and night for weeks on end the phone calls and angry letters (this was pre email folks) flooded in threatening ‘immediate’ legal action if he did not find the money and pronto. After several weeks of intimidation the misery merchants upped the ante and started to appear on the young fella’s doorstep even warning his flatmate of the fate that would await him.
Damn that holiday in Cairns and those brand new sneakers… that shiny plastic just made it feel so easy at the time.
Looking back on this terrifying experience, with all its warnings and terse language it left very little room for flexibility and negotiation. Is it still an acceptable approach in the eyes of the law?

For those who have been put in a similar situation, you will be relieved to know that there is now much more civil approach required by debt collectors which is enforced by the ACCC.
The ACCC notes that: “The need for collection activity and harassment will be greatly reduced when debtors act promptly and responsibly, and collectors are flexible, fair and realistic.”

And it’s true that (aside from wayward youth), many people default on their debts because of circumstances beyond their control, such as unemployment, illness or family breakdown. Most people are honest and want to meet their commitments if given a reasonable opportunity to do so. The ACCC, and indeed ASIC, now actively encourage flexibility on the part of creditors and collectors.

Some of this flexibility includes recognising debtors who are vulnerable and experiencing financial hardship, and recognising that debtors may have a number of debts owing to different creditors. A flexible approach involves making meaningful and sustainable payment arrangements that reasonably take into account a debtor’s ongoing living expenses to enable them to live in basic comfort and prevent impoverishment or humiliation. If your in this situation make sure any negotiation with a debt collection service, bank or utility company doesn’t leave you in a precarious situation where you’re struggling to survive.

Your Right To Privacy

Under our privacy laws, debt collectors have obligations to protect the privacy of anyone who owes them money. These days the situation I faced of having people turn up on my doorstep warning others about my impending gloom is just not on. The same applies to phone calls to third parties letting them know about your debt.
A debt collection service’s first task when contacting is to to ensure that the person they are dealing with is the actual debtor. This must be done every time they make contact before you divulge any information about the debt, the process for its recovery or before providing any other confidential information. So if your flatmate, work colleague, or mum are being told about your debt you can make a complaint to the ACCC

Contact with a debtor must also be made at a reasonable hour, taking into account your circumstances and reasonable wishes. The current guidelines for reasonable contact times are:

Contact by telephone:  Monday to Friday 7.30am -9pm
Weekends 9 am to 8 pm
National public holidays – no contact
The same time frames apply to face to face contact.

And if you feel they are engaging in unnecessary or unduly frequent contacts then it is undue harassment and can also be flagged with the ACCC. Current guidelines are that debt collectors not contact a debtor more than three times per week, or 10 times per month at most. This also includes when they ring and don’t leave a message.

Under consumer protection law, any frequent contact designed to wear down or exhaust a debtor, or likely to have this effect, is ‘undue harassment’ and must be avoided. For example, this is particularly likely if a debt collector makes a number of phone calls or other contacts in rapid succession.

There are also legal obligations under the Privacy Act 1988 (Cth) which are designed to protect your personal information. For example, obtaining a debtor’s contact details from your employer is collecting their personal information and is not allowed. Telling your neighbour the reason for trying to find you (a debt) will also disclose personal information about you and is also not allowed.

When It Isn’t Your Debt

If you have have already confirmed your identity and liability they can continue to pursue you. However, if you disputed that the debt is yours or that it never occurred or has already been paid any collection activity (including credit report listing) must be suspended.

If any collection activity is continued without properly investigating claims that a debt is not owed, the collector is potentially breaching the law.

Reasonable steps must also be taken by a debt collector to ensure that you are the alleged debtor. If your identity as the debtor cannot be established with sufficient certainty (because they deny their identity and you do not have any other supporting evidence to the contrary) all contact with that person should cease. Failure by a collector to do so may risk breaching the Privacy Act. You should also ask for a letter from them confirming the collecting has ceased

It is also misleading for debt collectors to state or imply that you must prove you are not liable for the debt. In legal proceedings, proof of the debt ALWAYS lies with the person alleging the debt (the collection agency).

How To Resolve A Dispute

Many industries (including telecommunications companies, utility suppliers and financial services businesses) belong to independent external dispute resolution schemes.

The ACCC and ASIC have always supported the role played by these schemes in resolving consumer complaints and disputes when these are unable to be resolved through the creditor or debt collector’s internal dispute resolution processes.

So if it’s become a nightmare dealing with tell them you want to have the matter resolved by an independent dispute resolution service

Still getting nowhere with a collector or feel their behaviour is out of hand? Then make a complaint or at least contact the ACCC to discuss further options HERE.

And never put up with threatening calls (or letters) which run off a script like this which have been shown by the court to constitute misleading and deceptive behaviour and undue harassment under the Australian Consumer Law :

‘Mr/Mrs/Ms. (Surname), the reason for my call to you today is a courtesy call due to the fact that I have received your physical file this morning from our solicitors. I have unfortunately been requested by our solicitors to put forward a final recommendation in reference to the outstanding amount of $(Balance) and will need to finalise my recommendation by no later than (x)

This debt collection agency manual then encouraged collections officers to make the strong suggestion that lawyers had already been involved in the account with phrases such as:
• I have received strict instructions from my solicitor, to proceed with litigation…
• I don’t even know where your matter is up to as our solicitors have you…
• I have just come out of a meeting with the solicitor with respect to three matters unfortunately one was yours…
• By tomorrow 3 pm this account will accumulate $350.00 worth of legal fees…
• Your account has been brought from the solicitor’s office and they are expecting a response from me as to proceed with litigation at 2.30 pm this afternoon…
• Just a reminder that our solicitors have given you one last chance to settle this account…

The court found that there was no lawyer involved at all and the sole intention of this “script” was to scare the willies out of any alleged debtor. What a bloody cheek and the collection agency was suitably punished by the court!

Don’t forget to check out more of your basic consumer rights HERE.

Lawyer Stephanie Chia takes a look at the complexity of the Australian visa system and how best to navigate your way through it …and who to get help from to achieve a realistic and stress free outcome.

To legally enter and explore the attractive sandy shores of Australia, you need to be an Australian Citizen or a person who holds a valid visa. If you are not a citizen, you need to hold a visa that allows entry and stay in Australia, whether it is for one day, a few years or indefinitely.

Australia’s Migration Programme is carried out by the Australian Government’s Department of Home Affairs. It has been known by different names in the past – the Department of Immigration and Citizenship (DIAC), and the Department of Immigration and Border Protection (DIBP). The changes in its name have generally reflected the current waves in migration trends, social policies and public sentiments towards the Migration Programme as a whole.

How to Apply for a Visa
To apply for a visa that allows you entry into Australia, it will depend on what you intend to achieve in the Land Down Under. Many young students from other countries apply for a working holiday visa, and find themselves working hard to earn a decent wage in regional farms, often staying with the farmers and getting a first hand taste of what it feels like to ‘live in the bush’! This is a great way for students to earn money as it is seasonal and therefore no long term commitment is needed.  

Others turn up in airports on visitor visas which allow them to take a well-deserved holiday in Australia and engage in sightseeing, or visiting family and friends. Some may even be flying in to meet up with a love met and nurtured online!

Overwhelmingly, a lot of people all over the world want to move to Australia and make it their homes permanently. Australia is attractive due to its reputation as a safe, fair and systematic country to raise a family that has an enviable place amongst the world’s big players.

The criteria to being selected for Australia’s permanent residency visas has increasingly become more difficult throughout the years, as the world’s social climate and policies shift quickly around us. Most potential applicants are assessed strictly through a dazzling array of selection criteria that may be a challenge to navigate, and they are not always for the faint-hearted.
Even choosing the relevant visa to apply for requires a certain amount of research and determination.

To start off with, it may be well worth a click to https://www.homeaffairs.gov.au/Trav.
Here you’ll see that there are broad categories which list the relevant visas within them in order to help you focus on what you should be applying for. Be really sure of what you want to achieve.

Many potential applicants wring their arms up in despair at the sheer amount of visa options before them, and this is even more challenging for anyone who does not understand the English Language in other parts of the world.

How To Find Great Professionals To Help You
The complexity involved in visa navigation and its subsequent application process has created a demand for professional visa expertise and advice. The Office of the Migration Agents Registration Authority (OMARA) was created as an authority body to regulate the profession of Migration Agents.

It is highly advised that anyone seeking the services of a Migration Agent should ensure that the Migration Agent is registered and listed on https://www.mara.gov.au/. As a Registered Migration Agent (RMA) with OMARA, an applicant will be able to lodge a complaint if the appointed RMA is not doing a good job. It is also a good practice to check if the RMA is listed on the suspended or barred listing before engaging them, as they are not be able to provide immigration advice.

Legal Practitioners in Australia are also eligible to provide immigration advice. However, they must hold a current legal practising certificate, and be registered with OMARA. Legal Practitioners, or Immigration Lawyers, are usually engaged as a result of a difficult visa application, a visa application rejection, or a visa application which requires judicial review.

Many potential applicants mull between engaging an RMA or an Immigration Lawyer. Like all service providers across all industries, there are stellar examples and awful representatives of each service provider wherever one goes. In fact, it can become quite subjective as one client raves about a great RMA, and another client begs to differ. Another may only swear by Immigration Lawyers, and yet another may avoid them due to the fees they charge.

I have seen many applicants’ cases fall to pieces due to incompetent service providers, and this has happened with RMAs and Immigration Lawyers alike. This has grave consequences which applicants have never been advised of or likely to expect. A careless application costs money, but most importantly, time. Visas are highly dependent on time-sensitive criteria that rely heavily on age, working experiences and occupations, just to state a few. They shift rapidly due to Australia’s employment needs, social climate and other pressures. Some visas are scrapped altogether, and some visas are created in the meantime. If you miss out, you miss out completely! Therefore, potential applicants should not jump into choosing a service provider recklessly.

Good luck, and if you have any general questions about migration just drop me a line in the area underneath.

Hey and don’t forget to check out all the fabulous FAMILY LAW resources we have online HERE

When a relationship ends one of the most common initial reactions is to want to sell, burn or otherwise dispose of your former partner’s belongings or things you had purchased together. Whilst there are numerous articles in magazines and online about the psychological and emotional benefits of culling your ex’s stuff, few mention the implications this may have on your family law matters.

What is considered property?
When dividing assets, the Family Court applies a four step process which starts with ascertaining the value of the asset pool available for division. Property is defined by section 4 of the Family Law Act 1975 as:

“Property, in relation to the parties to a marriage or either of them, means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”

Whilst this of course includes more obvious items such as real estate, cars, superannuation and bank accounts it also includes various personal belongings such as furniture, artworks, jewellery or collectibles. Essentially, determining an asset pool includes everything that you are your partner own jointly or as individuals.

This can be further complicated when considering matters such as inheritance, pension entitlements and accrued long service leave which may be considered by the Family Court to be a financial resource. It is important to distinguish between what is property and what is a financial resource as this may impact the overall division of assets.

When can I get rid of his/her stuff?
The general position is that no items should be sold, encumbered, damaged or in any other way disposed of until property matters are resolved on a final basis. You may have seen the recent “Art of Divorce” auction held by Russell Crowe in Sydney where he made approximately $3.7 million selling off various artworks, jewellery and collectibles accumulated through his career.

As tempting as it may be to auction off or throw out your ex’s belongings, this ought to be done only following a final agreement, which we recommend is documented by way of formal Family Court Orders to ensure enforceability and finality. Attempting to sell, dispose of or otherwise damage goods involved in family law matter may give rise to urgent proceedings being commenced in the Family Court seeking an injunction against one party from doing.
Find what happens with the kids when you divorce HERE
AND
Find out what happens if the kids DON’T want to be with one of you HERE
We have tons of resources on The Eagle so please feel free to check them all out!