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.

How to Protect Your Assets during a Financial Crisis

How to Protect Your Assets during a Financial Crisis

The COVID-19 pandemic has shocked the financial markets and created difficult situations for people who own assets that have fallen in value. In this article, we explore three tips that could help protect your assets and finances throughout the COVID-19 crisis.

Disclaimer: This article has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, financial advice. We recommend that you should consult your own finance advisors before engaging in any transactions. 

Protecting Personal and Family Assets

A discretionary trust (also known as a family trust) can be used to protect assets in the event of a financial crisis or bankruptcy. A typical family trust operates as a legal relationship between a trustee and beneficiaries, where the trustee is under an obligation to hold property for the benefit of the beneficiaries. The trustee is the legal owner of the trust property and the beneficiaries only hold an interest in the trust property. Therefore, if a beneficiary were to experience financial hardship, trust assets are protected from the beneficiary’s creditors as they do not own the trust property.

However, trustees on the other hand may fail to achieve asset protection if the predominate purpose for the administration of a trust was for a tax benefit or other considerations. For example, it is common for family trusts to have a corporate trustee as this structure brings tax benefits and can exist indefinitely and can appoint multiple directors to control the trust.

There are many events that risk exposing the assets of a trust, including where loans are made from a family trust, when there are unpaid allocations of trust income and capital, and when companies are beneficiaries. Many deficiencies stem from a poorly constructed Trust Deed, therefore it is important to consult a legal professional to carefully draft a deed with relevant clauses included to ensure asset protection.

Protecting Business Assets

One of the greatest risks during economic downturns is for a business to become bankrupt. Creating limited liability companies or corporations is the most common strategy to help protect your personal assets from the reach of creditors. Businesses can also use the structure of a trust to protect assets that have value, such as machinery, equipment or intellectual property, to prevent them from being taken in the event of a lawsuit.

Professionals that are at risk of personal liability must be careful as the risk of insolvency and/or lawsuits frequently arise during a financial crisis. Thus, it is important to check your business and professional indemnity policies for inclusions and exclusions. One way you could protect yourself is to increase your professional and public liability policy premiums and cover more extensively the events that are likely to occur in the current environment.

Pension and Superannuation Funds

Most pension and superannuation funds can allow you to shift your investments across different asset classes. As volatile market movements have resulted in falling share prices, shifting your investments could substantially reduce the current value of your portfolio. If you are older or rely on income from your fund, you could consider reducing the risk of your investments by shifting holdings from equities to bonds and cash. However, it is important to note that moving your investments could mean that you sell at a lower than usual price and therefore miss out on opportunities for future price increases. As such, some financial advisors may suggest to sit out of the market and wait until things blow over. If you are middle-aged or younger and will not need to rely on a fund income within the next ten years, attempting to time the markets is risky and a series of rash decisions could lead to a loss in the potential future value. Many suggest that the key is to maintain a balanced portfolio that spreads risk across different asset classes to reduce your downside risk and also ensure exposure to upside risk when the market outlook improves.

Further Information

If you would like more information on how we can advise you about trusts and protecting your assets, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au.

COVID-19: Witnessing Legal Documents Electronically

COVID-19: Witnessing Legal Documents Electronically

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (The Regulation) is another government initiative in response to COVID-19. The Regulation officially came into force on 22 April 2020 and aims to provide clarity on how some documents can be witnessed by an eligible witness via audio visual link. One of the most critical aspects of the Regulation is that it does away with the requirement for a witness to be physically present to witness the execution of documents. In this blog, we answer some of the most common questions regarding the new method of witnessing legal documents electronically.

What does audio visual link mean?

Audio visual link means any technology that enables audio and visual communication between two persons who are not physically present in the same room. This usually consists of the classic video conferencing platforms such as Zoom, WhatsApp, Skype and FaceTime.
What documents can be witnessed by audio visual link?

The below documents can now be witnessed through an audio visual platform:

  • a Will;
  • a Power of Attorney or Enduring Power of Attorney;
  • an Appointment of Enduring Guardian;
  • a deed or agreement;
  • an affidavit (including any annexure or exhibit to an affidavit) except for the purposes of divorce; and
  • a statutory declaration.

How do I witness a document by audio visual link?

In order to have a validly witnessed document it is imperative that the Regulation is followed correctly and carefully. In accordance with the Regulations, a person witnessing the signing of a document using an audio visual link must:

  1. Observe the person signing the document in real time (i.e. not via a pre-recorded video) to confirm the signature is legitimate.
  2. Next, the person witnessing the document must sign the document (or a copy) as soon as possible after the witnessing via audio visual link to confirm they witnessed the signature. This could be done on a hard copy of the original document that the signatory signed which is either sent in the post or electronically to the witness.a.
    • It is important to note that the person witnessing the document must be reasonably satisfied that the document signed by the witness is the same document signed by the signatory.
  3. The person witnessing must then state on the document the method of witnessing (either countersigned or counterpart) that was used and that it was witnessed in accordance with the Regulation.
    • For example: “I, [insert name here] attest that this document was signed in counterpart and witnessed by me by audio-visual link via Skype in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”.

Are there changes to who can act as a witness?

The Regulation has altered who can witness a Statutory Declaration. Traditionally, only Justices of the Peace and Solicitors could act as a witness to a statutory declaration.

The Regulations have been amended to allow the below persons to witness a statutory declaration

  • financial advisors;
  • pharmacists;
  • nurses;
  • accountants who are a member of Chartered Accountants Australia, CPA Australia or the Institute of Public Accountants;
  • psychologists;
  • veterinary surgeons;
  • police officers; and
  • teachers (only those employed on a permanent full time or part time basis at a school or tertiary education institution).

Further Information

With so many changes happening in the legal sector due to COVID-19 it is important to be fully aware of how these may practically impact you. 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. Check out our blog for further information and analysis on the restrictions and rules in place during COVID-19.

Recent bushfire crisis: My home insurer refused to renew my policy. What do I do?

Recent bushfire crisis: My home insurer refused to renew my policy. What do I do?

The recent bushfires across the country have had devastating effects on the lives of so many Australians. Many have lost homes, treasured possessions and most terribly, a family member or friend.

Recently, we have had clients call us to seek advice on their rights in respect of their home insurance. Some overlooked paying their insurance premium. When they were told to evacuate their homes, they rang their insurer to check that their policy was current and were told that they had not paid the premium and therefore the policy had expired. They asked to pay the premium immediately to renew the policy. However, their insurer refused to renew the policy due to the high risk of bush fires in the area.

Notice Provided by Your Insurer

The Insurance Contracts Act provides that an insurer must notify an insured customer in writing no later than 14 days before the expiration of their policy stating that their policy will expire if not renewed or negotiated in that time.

It is important to note that if the insurer did not provide this notice, even though you did not renew your policy, the policy is taken to continue as if you had renewed for the period of the original policy. So it is important to check first whether you have received this notice.

In August of 2019, a similar event occurred where Coles Insurance declined to continue coverage for properties classified in high-risk flood zones in NSW. Coles Home Insurance informed customers with properties in Waterside Estate that it would terminate policies in the area at their time of renewal due to the outlined flood risks in the region. The customers could elect to have the decision reviewed.

Special Circumstances

However, you might be able to show that there were special circumstances that made it impossible for you to renew your policy. These may include that you were overseas, or severely ill and in hospital.

Seeking Legal Advice

It is important to be fully aware of your insurance renewal date and ensure your insurer is keeping you accurately informed about the status of your policy.

If you would like further information regarding building insurance or general litigation or insurance advice, please do not hesitate to contact one of our experienced litigation solicitors on 9963 9800 or via email at law@etheringtons.com.au.

The team at Etheringtons would also like to extend our heartfelt sympathies to all those affected by the recent bushfires and commend the hard work and sacrifice by the fire fighters.

5 Costs to Factor in When Buying a Home

5 Costs to Factor in When Buying a Home

ATTENTION ALL BUYERS!

If you are currently in the process of buying, looking or saving for a house, there are extra costs beyond the property’s price tag that you need to know about.

1. Transfer duty (previously known as stamp duty)

When you purchase a property in NSW, you are required to pay transfer duty. This is a tax on property which varies depending on the value of the property. Generally, you will pay more transfer duty if the property you are purchasing is expensive.

2. Pest and building inspections

Before purchasing property, it is recommended that you have pest and building inspections to determine the property’s condition and to avoid problems and extra costs in the long run. These inspections are especially important for older properties. Make sure you appoint a qualified person such as a licensed builder, surveyor or architect.

3. Mortgage registration

You are required to pay a fee to formally register your mortgage in NSW. This mortgage registration payment is required by the state government to register the security for a home loan. This is important as it allows any potential buyers to check claims against the title of your property.

4. Loan application or establishment fee

When you take out a home loan, you may be required to pay an establishment fee. This payment may be required by the bank to pay for the setting up of your home loan. However, some lenders will waive this fee, so it may be worthwhile to ask.

5. Mortgage insurance

If you are borrowing more than 80% of the property value, you may be required to pay ‘Lenders Mortgage Insurance’ (LMI).  The lender’s valuation of the property determines this fee.

Further Information

It is important that buyers are aware of any additional costs which may be required when purchasing a property. If you have any questions or concerns, we can provide additional information and advice to you regarding your situation. If you would like to discuss your concerns with a legal professional please contact us on 9963 9800 or at law@etheringtons.com.au

The benefits of mediation in a commercial dispute

Lawyers are often stereotyped as being interested in prolonging an expensive court action. More often the opposite is true.

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.

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.

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.

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 doesn’t make the decisions, and you don’t 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.

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

Mediation can be a 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 benefits. It may be more important to apply that money to solving the problem, to repairing damages, or to 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. (This is where the selection of the Mediator requires careful consideration by all parties).

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

Conclusion

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 email law@etheringtons.com.au.