Issue 50 - March 2008

• Consumer rights: mobile phones
• Domestic/de facto relationships
• Resale price maintenance
• Managing disputes about parenting time
• The Verdict 
   

Phone companies have a responsibility to be good corporate citizens  Consumer rights: mobile phones

The Australian Competition and Consumer Commission has issued a new fact sheet entitled “Your consumer rights: mobile phone handsets” that explains to consumers what they can do if problems arise with their mobile phone handset.

The consumers rights apply to all purchases, not only mobile phones, however given the number of handsets in Australia (around 20 million), the fact sheet is tailored to that product. The consumer rights are statutory, enshrined in the commonwealth Trade Practices Act 1975 and state and territory fair trading laws including the Fair Trading Act 1987 in New South Wales.

ACCC Chairman, Mr Graeme Samuel says that the legislation in effect “requires that the handset must do what it is supposed to do and meet a level of quality and performance appropriate to the phone's price” and "if these rights are not met, and the problem wasn't caused by the consumer, then they may be entitled to seek a refund, even outside their contract or the manufacturer's warranty period."

The intention of the law is to give businesses and consumers a fair go. It is not designed to protect consumers if they are careless with their handsets or have just changed their minds.

These fact sheets are available free of charge from the ACCC website or by calling the ACCC Infocentre on 1300 302 502.

If you require our assistance with respect to any consumer complaint or dispute, please contact Craig Pryor or email craig@wmdlaw.com.au.

Are you in a de facto relationship that puts your property at risk?  Domestic/de facto relationships

A party to a domestic or de facto relationship has the right to apply to the Court for orders:

adjusting interests in property owned by the parties in the relationship;
for the payment of maintenance; or
for both an adjustment of property interests and the payment of maintenance.
The relevant law defines a domestic relationship as a de facto relationship or a close personal relationship. 

A de facto relationship is then defined as a relationship between 2 adults who live together and are not married to one another or related by family. This is not measured by time although the Court will take the duration of a relationship into account as well as other factors, such as the nature and extent of a common residence, the degree of financial independence between the parties, ownership, use and acquisition of property and the care and support of children, in determining whether a de facto relationship exists.

A close personal relationship is defined as a relationship between two adults living together, whether or not related by family, who provide the other or each other with domestic support and personal care. This care cannot be provided for a fee or on behalf of another person or organisation. This definition includes same sex couples.

For the Court to make an order for the adjustment of interests in property, the parties must have been in a domestic relationship for at least 2 years unless there are children involved or if there is evidence that a party has made substantial contributions to property or to the running of the household. 

These are factors you should bear in mind if you are living with someone and don't have a formal agreement in place as to your property ownership.

If you would like further information in regards to seeking orders under the Property (Relationships) Act 1984 or advice on how to protect your assets when in a domestic relationship, including the option of entering into a private binding agreement, please contact Greg Dickson or Jodhi Coady or email greg@wmdlaw.com.au or jodhi@wmdlaw.com.au.

Is your supplier forcing you not to discount the goods you sell?  Resale price maintenance

The Trade Practices Act 1974 (Cth) provides that a corporation or other person must not engage in the practice of resale price maintenance.

Resale price maintenance covers a variety of conduct, which includes where a supplier withholds supply from a buyer because the buyer is likely to sell the goods at prices less than those specified by the supplier. A simple example of this conduct is where A sells a product to B on the condition that B does not sell the product for less than $1 and if B is going to sell it at 90c then A will not supply B.

It has been stated by the courts that the object of the Act is to create conditions in which the public will benefit from traders competing with each other in respect of prices, unfettered by price restraints imposed by suppliers.

This part of the Act was recently considered by the Federal Court in Australian Competition and Consumer Commission v Navman Australia Pty Ltd [2007] FCA 2061, where the judge held that: “The policy which underlies the Act is that competition is an important feature of the distribution of goods.  Resale price maintenance, as a form of vertical price fixing, eliminates the competition which Part IV of the Act seeks to achieve.”

In that particular case, the company admitted to contravening the Act and the Court summarised the breaches as:

Inducing or attempting to induce dealers not to sell goods at prices less than the price specified by the supplier;
Withholding the supply of goods because the dealer was likely to sell the goods at prices lower than those specified by the supplier; and
The supplier making statements to the dealer that were likely to be understood by the dealer as prices below which the goods were not to be sold.
One of the communications between the supplier and the dealer included the following statement:

“It is not acceptable to have dealers discounting heavily with a good product that is already well priced.  If you can’t sell our products without discounting, then I suggest it’s time to sell any of our competitors’ products – simple as that!!”

A penalty was imposed of more than $1 million on the company for contravening the provision and individual penalties were imposed on 2 of the senior executives for being involved in the contraventions. It is therefore important to consider what message you are sending to your buyers on pricing of your goods to ensure you are not contravening the Act.

If you have an enquiry in relation to a consumer complaint or in relation to commercial transactions generally, please contact Craig Pryor or David Nicoll on 9525 8688 or email craig@wmdlaw.com.au or david@wmdlaw.com.au.

What can you do to work with your ex-spouse for the benefit of your children?  Managing disputes about parenting time

Some of the most common disputes that we see involving parenting concerns what is commonly known as visitation rights; in other words, who has the children and when. 

Often a consent arrangement or court order will specify a schedule for the time that the children are to spend with each parent but unfortunately the parent’s lives (and those of the children) don’t always fit within Court prescribed parameters.

Typical arrangements might call for one parent to have the children every alternate weekend, perhaps one night mid week and alternate holiday periods.  For most people, such a regulated schedule cannot always be adhered to.  Special events and emergencies may call for the need to change these times.  This sounds reasonable but if your ex-spouse is one who insists upon living by the book and will not budge when you want to make a time change, it causes problems.  It is not easy to overcome this difficulty however there are ways to handle an inflexible ex-spouse.

The following tips can help to reduce the disputes and maximise the opportunity to be flexible about parenting times.

Adhere to the schedule as best you can because it is important not to disrupt the children’s sense of continuity.  It is hard enough for kids to go back and forth between their parents – changing times can make it even more difficult.  Children need a routine and they need order.  You are likely to find that if you are insisting upon flexibility regularly your ex-spouse may become even more inflexible.

Assuming that you are constant with the schedule as far as possible and your ex-spouse won’t “give” – what do you do?  This is where negotiation and diplomacy skills come to the fore.  Just because the marriage is over, raising the children isn’t, so here are some suggestions:
Letters - If your ex-spouse is inflexible, try writing kind and thoughtfully worded letters that reflect your requests.  A spoken dialogue on the subject may spark an altercation.  Respectful correspondence could be a great start – assertive is fine; aggressive is not.

Conversations - If you do contact your ex-spouse regarding any changes by telephone or in person, be polite and courteous at all times, especially if he or she isn’t.  This approach could play a major factor in getting you what you want.

Calendar credits - If letters and calm conversations don’t work, try a bartering system.  Some type of trade off can be very effective.  Issue your ex-spouse a “credit” (put in it writing) for the time slot that he or she is changing for you in exchange of a time that he or she may want from you in the future.  Let your ex-spouse “bank” these credits and utilise them.  If you adopt this system you must practice what you preach.  You will have to be flexible when asked to redeem these credits.  This approach enables the other parent to feel as though he or she is getting something in return for being flexible and getting it right away.    With credits in the “bank” your ex-spouse is likely to feel a sense of power rather than being imposed upon.  Don’t ask to trade too often – abusing the process will cause it to fail.

Legal intervention - You may need to contact your lawyer if the above procedures don’t resolve the issue.  You may need to do so if there is an extended period in which your ex-spouse won’t make any reasonable schedule changes.  Using the legal process to overcome these difficulties can be stressful and costly and it is best to exhaust the other options we have recommended beforehand if you can.

This article was taken from an article written by Stacey Phillips entitled “Visitation and the Inflexible Ex” which appeared on the website www.divorcemagazine.com.

If you have any questions concerning the above please contact Greg Dickson, Kevin Dwyer, Jodhi Coady or Amanda Solomon or email greg@wmdlaw.com.au, kevin@wmdlaw.com.au, jodhi@wmdlaw.com.au or amanda@wmdlaw.com.au.

Your questions answered

The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously, we are not able to provide specific legal advice or advice in relation to a current legal matter. If you have a question you would like us to answer, please submit it by email to rebecca@wmdlaw.com.au.

I have been issued with a notice from the RTA regarding my licence - what should I do?

A recent RTA suspension notice has been declared void by the Supreme Court paving the way for potential challenges to other RTA notices of suspension of licence. 

In dismissing the Appeal by the RTA, Adams J awarded costs to the driver who was charged with driving whilst suspended in December 2006.  It was not in dispute that the driver was driving.  Initially, the Magistrate at Burwood Local Court dismissed the charge on the ground that the Notice of Suspension was invalid since it specified 2 inconsistent dates of suspension and effectively added 2 days to the suspension period.

The notice was a standard one which identifies a Suspension Period but includes an alternative start date for recommencing driving if the driver elects to take a Probationary Licence rather than the suspension in full.

The Court found that a licence holder should not have to be the one to construe the Notice of Suspension by disregarding or interpreting a part of it.  He noted that a Suspension Notice needs to be clear and that the need for clarity was implicit under the Regulation.

It is important to seek legal advice as soon as possible regarding any notices issued by the RTA that may affect your right to drive.   If you are currently suspended or facing suspension for further information please contact Kevin Dwyer on 9525 8688 or email kevin@wmdlaw.com.au 

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