Is Money From Family a Gift or a Loan When Separating?

Is Money From Family a Gift or a Loan When Separating?

It is becoming increasingly common that couples receive financial assistance from their parents. This can be through transfer of property, the giving of money or both. This assistance is becoming progressively prevalent due to rising prices within the property market which has meant that many couples are unable to enter the market without assistance from their parents. However, this can cause issues if the couple separates, as there can be a dispute as to whether the money provided was provided by way of a gift or a loan.

In a property settlement, the family law court can treat payments made by a parent to their child in two ways:

  • The court may find that the payment was a gift to the child which is not expected to be repaid.
  • The court may find that the payment is a loan from the parents that is to be repayable in full.

How does the family law court treat gifts?

In general, a court treats gifts from a parent as being for the benefit of their child alone. Because of this, when assessing entitlements, the court will apply such gifts  towards that spouse’s side of the ledger, when determining their entitlement. This would result in that spouse receiving an extra contribution as a result of the gift applied towards the relationship. However, if the intention was that the gift was to be provided to both parties to the relationship then it would be open for a spouse to contend that the gift is to be taken as an equal contribution of both parties.

How does the family law court treat loans?

If the money is determined to be a loan from the parents, the court must then determine whether the loan is legally repayable and in doing so, they must consider whether the loan is likely to be repaid in the foreseeable future. If the loan is unsecured, the court has discretion to either deduct the loan from the pool of assets or not. If the terms of loan are vague or uncertain, the court is less likely to enforce the loan. Evidence about the loan determines how the loan is treated. If there is any oral or written evidence of the loan, and the  parties have complied with the terms of the loan through actions such as making repayments, the court may be  likely to uphold the existence of a loan. However, if there is no or little evidence that supports the claim that it was a loan, and there were no repayments made, the court would be less likely to uphold that the existence of the loan.

Parents considering loaning money to children who are married or are in a de facto relationship

If you are considering lending money to your child who is married or in a de facto relationship, it is important that there are documentation which adequately establish that the money provided is to be treated as  a loan. The documentation can include:

  • A loan agreement that sets out the terms of the loan and is signed by all the parties involved
  • A mortgage over the property that secures the loan

Further to the documentation, it is important that the parties to the loan comply with its terms and obtain any appropriate legal advice. If, under the loan, repayments are to be made, they must be made or if payment of the loan is reliant on an event or after a particular time period which has passed, then a new loan agreement should be entered into.

Contact Us

If you have separated from your partner and your parents have lent you money and you are not sure whether it will be treated as a gift or a loan in court or you are wishing to lend money to your child who is in a relationship and you would like more information on how we can assist you in your matter contact us on 9963 9800 or by email to law@etheringtons.com.au.

National Scams Awareness

National Scams Awareness

With technology becoming more accessible, intelligent and widely used, it is becoming increasingly important to ensure that your personal information and data is protected from scams. There has been a growth in the number of people online as a result of COVID-19 pandemic and this has caused a proliferation of scammers targeting personal information. This increase has led to a total financial loss estimated at $91m in 2020 so far.

Top Tips to Avoid Scams

The Australian Competition and Consumer Commission has put together its top five tips to help protect your personal information.

  1. Do not feel pressured to give your personal information away to someone who has contacted you.
  2. When receiving unexpected emails or messages, do not click on any links, even if it seems to have been sent by a legitimate source.
  3. Make sure to use strong passwords for all your accounts and your internet network.
  4. Install antivirus software on your computer and other devices and ensure that it is kept up to date.
  5. Limit the personal information that is shared about yourself online, even on social media.

Phishing Scams

There has been an increase of 44% in phishing scams this year alone. Phishing scams are the most common form of scam and it is where a scammer will pose as a legitimate institution such as government departments, banks, telephone companies and other businesses in order to collect personal details which they can use to access bank accounts, superannuation and apply for loans under the stolen identity.

Common features of phishing emails or messages to look out for are:

  • An offer that is too good to be true
  • A sense of urgency to respond to the message
  • Unusual hyperlinks within the message
  • Unexpected attachments
  • Unfamiliar sender

Get Legal Advice

If you think you have been scammed and need any assistance please don’t hesitate to get in contact with one of our lawyers via our contact form or call us on 02 9963 9800 for a no-obligation discussion.

More information on types of scams and how to protect yourself can be found here.

Scamwatch can also help if you wish to get help or to report a scam.

The Difference Between a Barrister and a Solicitor

The Difference Between a Barrister and a Solicitor

What Is the Difference Between a Barrister and a Solicitor?

Barristers and solicitors are both people who can assist with your legal matters. The difference between a barrister and a solicitor is the type of legal work they do. In general, a barrister specialises in making court appearances and speaking on your behalf. However, a solicitor often does the preparation work before your court appearance and liaises with the barrister. Barristers are formally trained in court advocacy and cross-examining witnesses.

In most cases, a solicitor will look after your case initially. They will then engage a barrister for court advice and appearances. Barristers do not liaise directly with clients.

When to Involve a Barrister in Your Matter

Clients often ask at what stage we will involve barristers in their matter.  A good way to think about it is that solicitors are like general practitioners and barristers are like specialists. Barristers work in particular areas of law and often speak at court.

Sometimes solicitors will discuss your case with a barrister and ask them to provide a written opinion on the prospects of your case. They might also ask their opinion on a specific issue. If a matter is complex or unusual, barristers might also be involved in the drafting of court documents.

Barrister Costs

Barristers are required to provide you with an estimate of their costs. Their costs agreement and disclosure documents are issued to your solicitor.

Barristers usually charge an hourly rate. They can also charge a daily rate, especially for court attendances or mediation sessions. Some barristers will charge a cancellation fee if a hearing settles or is adjourned.

Choosing a Barrister

You solicitor will choose a barrister based on factors including:

  1. Your financial circumstances;
  2. The type of matter; and
  3. Which barrister they believe is most suitable.

A barrister can be perfectly suited to one type of case but not another.

If you need any legal advice or assistance we are here to help. If you would like to discuss the involvement of a barrister in your legal matter contact us today.

Alternative Dispute Resolution: Mediation and Settlement Conferences

Alternative Dispute Resolution: Mediation and Settlement Conferences

Lawyers are often stereotyped as being interested in prolonging an expensive court action, however more often the opposite is true, due to the availability of alternate dispute resolution avenues such as mediation.

Lawyers know that court cases are expensive and that clients are fearful that legal costs could escalate to an intolerable level. Lawyers interested in preserving long standing relationships with their clients will often recommend alternative dispute resolution options. Mediation is one of those options.

There are various types of mediation

  1. Pre-litigation informed settlement, or a round table conference
  2. Informed settlement conference after the court proceedings have commenced without a mediator
  3. Courted ordered mediation with a mediator

What exactly is mediation?

Mediation allows parties to remain in control of their own disputes and outcome while facilitating parties to tell their side of the story to the other party and the mediator. It is conducted on a ‘without prejudice basis’ which means that whatever is said during the mediation is confidential and cannot be used in court against you. It rules out the uncertainty and risk of court litigation and allows the parties to make certain compromises to achieve a commercial outcome.   

Mediation is one form of alternative dispute resolution. Others include Early Neutral Evaluation, Expert Determination and Arbitration.

In essence, mediation is an informal conflict resolution process brought before an independent, neutral third party. Mediation gives the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement in a way that would never be possible in a court case.

Mediation is often voluntary. Typically the mediator has no authority to make a binding decision unless both parties agree to give the mediator that power.  This is dealt with in advance of the mediation commencing. Mediators are accredited under the National Mediator Accreditation System.

When parties should consider mediation

In practical terms mediation is likely to be quicker and more cost-effective than the more formal processes of arbitration or litigation (in court). Mediation should be considered as early as possible after a dispute has arisen. It is particularly appropriate where a dispute involves complex issues and/or multiple parties.

In addition, mediation can be implemented prior to, or in conjunction with, other forms of dispute resolution such as arbitration or court proceedings.

In circumstances where privacy and confidentiality are important, mediation enables parties to preserve these rights without public disclosure. This often leads to more satisfactory outcomes for both parties.

Advantages of mediation

There are many advantages. In summary these can be described as:

You get to decide

The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator does not make the decisions, and you do not need to “take your chances” in the courtroom.

In doing this however, you need to understand your legal rights so that you can make decisions that are in your own best interests. It is very important to seek legal advice from a competent litigation lawyer so that you do not agree to an offer that is much less than you are entitled to.

The focus is on needs and interests

Mediation examines the underlying causes of the problem and looks at what solutions best suit your unique needs and satisfy your interests.

For a continuing relationship

Colleagues, business partners, and family members have to continue to deal with each other co-operatively. Going to court can divide people and increase hostility. Mediation looks to the future. It helps end the problem, not the relationship.

Mediation deals with feelings

Each person is encouraged to tell their own story in their own way. Discussing both legal and personal issues can help you develop a new understanding of yourself and the other person. You are encouraged to see things from the other person’s perspective.

Higher satisfaction

Participants in mediation report higher satisfaction rates than people who go to court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. Mediation ends in agreement about 80% of the time and has high rates of compliance.

Informality

Apart from court ordered mediation in a large court, for complex litigation in which parties would follow a set structure such as submitting position paper and a mediation bundle to the mediator ahead of the mediation, informal settlement conferences are less intimidating process than going to court. Since there are no strict rules of procedure, this flexibility allows the people involved to find the best path to agreement.  Although it is normal for any dispute resolution to be taxing emotionally, mediation is a process that is much less confronting and is conducted in a much more comfortable environment than litigation

Faster than going to court

Years may pass before a case comes to trial, while a mediated agreement may be obtained in a couple of hours or in sessions over a few weeks.

Lower cost

The court process is expensive and costs can exceed the benefits. It may be more important to apply that money to solving the problem, repairing damages, or paying someone back. Mediation services are available at low cost for some types of cases. If you can’t agree, other legal options are still possible. Even a partial settlement can lessen later litigation fees.

Privacy

Unlike most court cases, which are matters of public record, most mediations are confidential.

Where mediation is not the solution

With mediation, a resolution is not guaranteed. There is the potential that parties may invest time and money in trying to resolve a dispute out of court and still end up having to go to court. Ultimately, it is a call that should be made in consultation with an experienced lawyer.

Mediation should not be a solution in circumstances where it is not appropriate. For example, where a court remedy is necessary such as an injunction or seeking specific urgent court orders.

It must also be remembered that the mediator has no power to impose a binding decision on the parties. Therefore, even after the mediation the matter may be unresolved and you may still need to go to court.

Fundamentally, mediation rarely produces a satisfactory resolution unless all parties to a dispute are committed to a resolution.

Navigating the court system can be a financially and emotionally costly and time-consuming process. Mediation is an alternative. It is suitable for people who are willing to communicate with the other party and attempt to better understand and settle their dispute with the help of a trained third party.

To find out more call us on (02) 9963 9800 or contact us here.

How to Protect Yourself from Being Scammed

How to Protect Yourself from Being Scammed

Every year scams cost Australians millions of dollars as well as considerable non-financial harm, therefore it is crucial that you remain alert so that you are not the target of the next scam. In 2019 alone, there were over 353,000 reports of scams, and Australians lost over $634 million. In this blog, recent trends in scam activity and methods to protect yourself from being scammed are outlined.

Business Scams

Business email scams accounted for the highest financial losses in 2019, costing businesses $132 million according to the ACCC’s Targeting Scams report. A common technique scammers use is to intercept legitimate invoices and change the payment details so that the recipient will not realise that they have been scammed. Scammers may also impersonate staff to request the transfer of funds for purchasing gifts for other colleagues or for other business related expenses.

Small and micro businesses reported more scams than medium and large-sized businesses. The average loss was $11,000, however, some businesses lost up to $200,000. Scams have become increasingly complex and difficult to identify with the aid of technology. Therefore, it is essential for businesses and staff to remain alert and to familiarise themselves with common scams they may encounter.

Consumer Scams

Consumer scams succeed because they mimic genuine deals and catch consumers off-guard. By taking advantage of new technology, new products or services and major events to create believable stories, it is simpler for scammers to target their audience and capture their money or personal details. Scamwatch has received over 2,000 reports about COVID-19 scams and reported losses of more than $700,000.

Scammers set up fake websites, ads on trusted platforms and false social media accounts in the guise of selling real products. They often ask for upfront payments or an initial deposit, plus additional costs such as administration or transportation. Consumers must also be alerted to common scams such as online shopping scams. These scams do not have a verified payment system, offer free products in exchange for personal details and lure you with unexpected winnings or an investment scheme.

How to Protect Yourself from Being Scammed

Scams target people of all backgrounds, ages and income levels. With increased socio-economic vulnerability during COVID-19, scammers have the opportunity to target a wider audience. For example, with many people feeling lonely during isolation, Scamwatch has seen a recent spike in the activity of puppy scams resulting in Australians losing around $300,000.

The best way to combat online fraud is to stay one step ahead of scammers by learning how to protect yourself. Here are some tips from Scamwatch to help you remain alert:

  • Be alert to the fact that scams exist.
  • Know with who you are dealing.
  • Do not open suspicious tests, pop-up windows or click on links or attachments in emails.
  • Keep your personal details secure.
  • Choose your passwords carefully.
  • Requests for personal details or money should be red flags.
  • In particular, be alert to law enforcement scams.

Unfortunately, scams are becoming more sophisticated and are often very difficult to trace, so in most cases, the money can never be retrieved. For further assistance on any matter relating to scams or competition and consumer law, please contact one of our experienced solicitors on 02 9963 9800 or via our contact form here.

Elon Musk names son “X Æ A-12” – Would this name be allowed by law in New South Wales?

Elon Musk names son “X Æ A-12” – Would this name be allowed by law in New South Wales?

With the recent announcement of SpaceX CEO Elon Musk and Canadian singer ‘Grimes’ naming their son “X Æ A-12”, many people are left confused regarding the legal constraints for naming children. It is common for celebrities and public figures to push societal bounds by naming their children unconventional names, but how far can one go until the name is rejected by the law?

Elon Musk and Grimes have changed ‘X Æ A-12’ to ‘X Æ A-Xii’ in an attempt to comply with Californian laws. However, despite the slight change, it is likely the name will still face issues in California as you can only utilise the 26 characters of the alphabet in a child’s name (excluding apostrophes for names such as O’Neil). Such restrictions call into question what would happen if such a situation were to occur in NSW. This article will address what you can and cannot name a child pursuant to NSW naming laws.

Child Naming Laws in NSW

Once a child is born, the parents must register within 60 days the child’s name with the NSW Registrar.  Under the Births, Deaths and Marriages Registration Act (‘the Act’), it is prohibited to give a child a name that:

  • is obscene or offensive;
  • is too long;
  • includes symbols without phonetic significance;
  • resembles an official title or rank, such as judge, saint, king, prince; or
  • is contrary to the public interest for some other reason.

Specific naming restrictions include:

  • The maximum length of a name, including spaces that can be registered is 50 characters each for the family name, first name and any other middle names.
  • Names cannot contain numbers or symbols, which includes roman numerals, prefixes or suffixes, such as the name “Anne Marie the 1st!”.
  • It is also not possible to register a name which bear a resemblance to a title, such as “Duke of Edinburgh Smith”. However, it is possible to register a name which has a title as a name such as “Edward Duke Smith”.

The state will not register a prohibited name, and can assign a name to a child if the name is a prohibited name, or where each parent lodges a birth registration statement because they are unable to agree on the child’s name.

Changing your child’s name following separation

Changing the surname of both child and spouse has been customary at marriage. Many women may choose to revert to their maiden name upon separation or divorce, however both parents must usually provide consent to change their child’s surname. An agreement can be reached privately or through alternative dispute resolution. The child must also consent to the change of name, unless they are unable to understand the meaning and implications of the change of name.

However, one parent can apply alone to change their child’s name if:

  • they are the only parent named on the child’s birth certificate; or
  • the other parent has passed away; or
  • a court has approved the new name for the child.

Changing Names

Names recognise your individual identity and are a significant part of your personal brand. If you are not happy with your name, in NSW you can only change your name once in a 12-month period, and three times in your lifetime.

You may apply to change your name if you are an adult (over 18 years old) and:

  • your birth is registered in NSW; or
  • you were born overseas and have been a resident in NSW for 3  years when you apply for the name change; or
  • your birth is not registered in NSW and a protection order has been made to protect you and/or your children from domestic violence.

Further Information

It is important to be aware of the laws surrounding name changes in NSW if you are considering changing your name or your child’s name. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or via our contact form.