About Leisa Toomey

Leisa Toomey is a Partner at Schultz Toomey O'Brien Lawyers. Find more about Leisa Toomey on Google +.

Domestic violence – the real ‘emergency’ facing Australia

Leisa ToomeyThis week has tipped the scales further for serious and immediate intervention for people in domestically violent situations and even as I write this another domestic incident has taken place in Victoria.

Whilst I understand the need for the Government to concentrate on drug related issues such as the ice epidemic, the real emergency is in our homes and those toxic relationships that are tearing apart families and placing untold strain on the resources available to assist people in crisis.

There are many reasons people don’t leave their very, very difficult home circumstances from a misplaced sense of loyalty to fear of the unknown which of course is understandable.  Now more than ever its imperative focus on offering a safe haven without the red tape that currently exists for emergency accommodation.

Domestic violence has become our national emergency, not the budget, and until we as a nation concentrate on supporting families in crisis we will continue to see the tragic types of incidences from this week alone.

As lawyers we are conscious of assessing people in crisis and learn to pick up on what is not being said rather than what is being told to us by our clients who are considering separation or are separating.

It can become abundantly clear that some clients don’t realise they are in the middle of something that can lead to tragic consequences.  We as lawyers can only guide our clients but what would make our role easier in providing advice to clients in these circumstances is a proper government frame work that can offer real hope to break free.

If you need help you can contact DV Connect via 1800 811 811 or if you are in danger now call 000.

Leisa Toomey is a Practice group leader of Schultz Toomey O’Brien Lawyers – part of the Slater & Gordon Group. She is an Accredited Family Law Specialist with the Queensland Law Society

Infidelity – how do you overcome it when it’s not a person?

Leisa Toomey 2012As a family lawyer I have seen what Sexual Infidelity can do to a relationship.  However, wounds heal and people move on with their lives.  But be warned, there is another type of infidelity that you may never recover from if it is not discovered in time.

Financial Infidelity is a relatively new term coined to describe the activities of a partner who is hiding the real financial picture from you.

It comes in many guises but in its simplest form it could be anything from secret shopping to having secret credit cards.  However, at the other end of the scale it could be gambling debts or a business venture that has gone bad – and it could be eating away the equity you have in your home – and all without your knowledge.

It appears we all expect honesty from our partners, but a survey by Harris Interactive of 1796 people aged between 25 and 55 says, whilst we might expect it, we don’t always give it.  According to the 2005 survey, 29% of people in a committed relationship admitted to lying to their partner about their spending habits. And it appears that women have more to hide than men with 33% of women saying they had something to hide as opposed to 26% of men.

As one would expect, 96% of those surveyed believed that it was the responsibility of both partners to be completely honest about financial issues, with 24% believing it was more important than being faithful.

Lying about the price of a pair of shoes is one thing.  Lying about the financial losses of a company is another. Francis* came to see me after discovering the business her husband had set up was actually in liquidation, with debts in excess of $50,000 and an overdraft of $20,000.  She had no idea the company was in trouble as he had told her everything was fine.  Her husband had genuinely tried to make a success of it but once he started borrowing to stay on top, his problems just got worse.  Francis was in turmoil as she has felt betrayed by her husbands’ actions. “Had he come to me to say things were not going well, we could have worked it out together” she said.  By not involving me he has exposed me to the debt and not treated me as a valued partner in this relationship. Sadly, the marriage dissolved, along with a significant portion of their savings.

The bottom line is that whilst lies may start off small, they can quickly take on a life of their own which only leads to bigger problems.  The best solution is to be honest about your actions as the truth will eventually surface anyway.

Magellan Program – what it is and how it works

Last month I talked about Family Violence and the Best Practice Principles that have been developed to protect both the children and parents who are victims of family violence and abuse.  The Best Practice Principles recognises that where there are allegations of sexual or serious physical abuse of children that the Magellan case management system be followed.

The Family Court of Australia introduced the Magellan Program which “was developed to deal with Family Court cases involving serious allegations of physical and sexual child abuse.” To ensure action is taking quickly to protect those who are often the most vulnerable in our society, a fast-track program was introduced by the Family Court.  The program includes, but is not limited to:

  • Rigorous judicial management including imposing strict timeframes
  • The appointment of an independent children’s lawyer
  • Obtaining information from the relevant state or territory welfare authority early in the trial process
  • Close liaison on case management between external information providers and a small team of judges, registrars and family consultants

To ensure that Family Court cases involving serious allegations of child abuse are handled as quickly as possible, and if a Notice of Child Abuse and Family Violence is included in the Application to Court, the matter goes straight into the Court’s Magellan program.

The whole aim of the program is to protect the victims and the court recognizes that time is of the essence in these matters.  As such it is preferred that the team handling the case remains the same throughout the whole process with a further aim of completing the case within 6 – 12 months.

When a case has been referred to the Magellan program interim orders will be made to protect the child until the matter goes to trial and the child will have an independent children’s lawyer appointed for them.  Other actions may include obtaining a detailed family report and psychiatric assessment and ordering a subpoena and/or requesting a report from the child protection agency as to whether they have previously investigated the allegations.

The introduction of the Magellan program was a significant change for the Family Court of Australia and has resulted in “cases going through the court system more quickly” and that fewer cases are going all the way through to judgment.  So whilst early indications are that the introduction of this program has resulted in significant, positive change for children who have suffered severe abuse there is still more work to be done.

Grandparents Rights

Leisa ToomeyThe relationship between a grandchild and a grandparent can be a wonderful thing. In our busy world they are often a necessity as well, particularly when both parents work. However, what happens when the parent’s relationship fails and one of them decides they no longer wish the grandparents to be involved in the children’s lives?

Aside from the hurt the grandparents will feel, the children may also be left bewildered and upset that they can no longer see a person who was so important in their lives. Sadly, for many grandparents this is a reality that they have little choice but to accept.

Whilst the concept of Grandparents Rights is relatively new it has been proven on a number of occasions that grandparents do have rights and many are now seeking legal avenues to assert them.

In 2009 the Federal Government implemented changes that were designed to encourage grandparents to maintain links with their grandchildren, particularly where there were messy family breakups. Under the changes grandparents are able to obtain advice on family law issues and potentially become involved in court proceedings if they believed it would benefit the interests of the child.

Many judges believe that grandparents can often provide a solid foundation for children, particularly where the parent’s relationship is dysfunctional. Grandparents can provide real alternatives as far as living arrangements and child care is concerned and can offer the child or children some stability when their world appears to be crumbling around them.

Grandparents now have access to the Parenting Order Program where families, that are separating and who are going through difficult disputes, are given access to counseling and dispute resolution services. Grandparents also have the right to participate in counseling and family dispute resolution with the children’s parents.

However, it should be noted that a court will consider all aspects of the role a grandparent has played in a child’s life prior to the separation of the parents. Factors such as a documented relationship with the child and whether the grandparents have served as custodial parents or served the role of parents all strengthen their claim to see their grandchildren. If the relationship between the primary caregiver and the grandparents is so bad that it will adversely impact the child the court may not allow the grandparents rights particularly if prior to the separation of the parents the grandparents played no role in the child’s life.

As much as the courts would love to see stability and family in the lives of children, who are going through the traumas of their parent’s divorce or separation, a parent’s rights will generally be greater than that of a grandparent unless the parent is proven unfit. However, for the sake of the children, allowing grandparents to be part of children’s lives can be a beneficial and enriching experience and if

 

Overseas travel and relocating with children

Leisa ToomeyWhen relationships fail it can a difficult time for all involved. Children in particular will feel the stress of having to potentially change homes and schools. And if sorting the day to day issues aren’t complicated enough throw into the mix one parent wanting to relocate or another wanting to take the children on an overseas holiday and issues are bound to arise.

Relocating the children

If you are planning on moving and relocating children to another town, city, state or country you should try and discuss this with the other party to attain their permission. You should also apply for consent orders before you move.

You should not assume you have the right to just move the children with seeking consent from the other party as a court may require you to return until it has considered the case. In the situation where there is already a court order in place, if you relocate the children without consent, you will be breaking that order.

If you cannot agree, you can apply to a court for a relocation order to allow you to move. You will need to bear in mind that if moving the children is going to limit the time the children live with or spend with a parent or another significant person in their lives, a court may not give permission for you to move them. When reviewing your case the Court will consider what is deemed to be in the best interests of the child.

Overseas Travel

If you are planning a holiday, you should advise the other parent (and any other person with parental responsibility) of your intention to travel as soon as possible. It is important that you trip is well planned so that you can provide the other parent with as much detail as possible. Things to include will be where you are going, where you will be staying and all relevant contact details. A copy of your itinerary should also be included.

When applying for a passport for a child written consent is required by both parents. If written consent is not provided by all parties with parental responsibility, you can make a written request to the Approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing the passport due to ‘special circumstances’.

Sometimes I see cases where there is legitimate concern that a child may be taken out of Australia without permission and not returned. It is important that in these circumstances legal advice should be sought as soon as possible.

To prevent this from happening we can apply to the Court for an order that will prevent a passport being issued for a child. If a passport has already been issued we can apply for an order that requires a person to deliver a child’s or accompanying adult’s passport to the Court. An order can also be made that will prevent a child from leaving Australia.

Infidelity – of the financial kind

Leisa ToomeyFinancial Infidelity is the new phrase for when one spouse secretly spends family money or creates debts without the knowledge of the other spouse. This can be anything from secret shopping, gambling addictions, secret credit cards or compulsive ebay purchasing.  Such spending is normally funded from family savings, hidden credit or store cards or even from using the redraw facility on the home loan.

Essentially this, for many people, is a breach of trust which often results in separation. With separation comes property settlement and divorce.  It is still common in relationships for one party to be the “financial controller” and in these relationships it is particularly easy for such behaviour to occur.   Sometimes this is one of the causes of a separation.  If the financial infidelity is not discovered until after separation it is commonly referred to as a STD or “Sexually Transmitted Debt”.

As a general rule any spending during the relationship will be born equally by the parties regardless of who did the spending and who did the earning.    There are ways you can protect yourself before the event such as by having a carefully drafted “pre-nuptial” (before marriage) or “post-nuptial” (during marriage) financial agreement.

Parties who fall victim to financial infidelity need to take steps, pre and post separation to protect and preserve the remaining family assets.  Sound legal advice early on or even prior to separation can give a person tools and techniques to protect assets and discover financial infidelity before there is nothing left to divide.

Some hints and tips to uncover and avoid financial infidelity:

  • Become actively involved in family finances;
  • Watch the mail – be aware of sneaky behaviour eg opening mail in private;
  • Go through the filing cabinet – become aware of what the family finances consist of;
  • Get on internet banking and regularly check statements and transaction histories;
  • If you discover financial infidelity – keep copies of the evidence it may just come in handy in your property settlement;
  • Change permissions on redraw facilities and credit cards to restrict spending limits;
  • Protect savings by creating an account with limited access – eg passbook only;
  • If it is necessary to preserve funds, transfer them to an account that can’t be controlled by the irresponsible party.
  • Seek legal advice and counselling.

 

Narcissism and Family Law

As a family lawyer I have seen a lot of manipulative behavior in my time from and from both men and women. However, the most disturbing type of behavior comes from those with a Narcissistic type of personality, but often they go undetected to the outside world and the spouse or partner of a narrcissit is often not believed at first due to the very clever and manipulative lies told by the narcissist.

So what is the deifinition of a narcissist? According to the Macquarie dictionary a Narcissist is someone who has “extreme admiration for oneself or one’s own attributes”. I have come to understand that it is much more than that. A narcissist is so preoccupied with ensuring that his world appears (to everyone else) perfect in every way – they believe they are superior to others and have little regard for other people’s feelings.

I have seen firsthand how a narcissist behaves and it is quite disturbing. From the outside they look no different to you or me but it is their behavior that gives them away. In a divorce situation a narcisist will do anything to avoid looking like the “bad” party and may go to incredible lengths to make the other party look like the bad guy – and there is no subject that is “off limits” to them. Additionally, wanting to appear the “better” parent if children are involved, they will fight tooth and nail for custody – even if they were not that involved with the prior to the separation.

To counter a narcissist you need to keep records and notes about everything they say and do as this can be documented proof to what they are up to. A narcissist does not like to get caught out and when challenged or made to feel inferior or inadequate will usually respond with anger, but has generally told so many lies as part of their fabrications that they will slip up when faced with factual information. This is usually their downfall.

Sexually Transmitted Debt – don’t be caught out!

Leisa ToomeyAs a Family Lawyer two of the most common questions I am asked when a relationship breaks down, and there are assets and debts to be sorted, are “who is responsible for the debt?” and, “why should that responsibility be shared?”

Debts of a relationship can be packaged into many forms but the key principles are these:

  1. when the debt was incurred
  2. for what reason
  3. the debt that existed at separation and those incurred after separation.

WHEN THE DEBT WAS INCURRED

If your partner had debt before you met him/her and that debt carries on into the relationship and still exists at the time of separation it may be omitted from the pool of net assets.  However if you both take that debt, and add to it during the relationship, then both parties become responsible for it and it can be taken into account at the end of the relationship.

If debt is created during the relationship, regardless of what name it was created under, or for what reason, the court usually says it’s a debt of the relationship that both become responsible for.

FOR WHAT REASON

People usually incur debt in a relationship to buy a house or car or on credit cards.  However, if debt was incurred and only one party to the relationship benefited, the Court will treat is as a joint debt.

The purpose of the loan/debt is not relevant in most cases. The key is the timing of the debts and if they were incurred during the relationship, it is more than likely to be deemed a joint debt.

THE DEBT THAT EXISTED AT SEPARATION AND THOSE INCURRED AFTER SEPERATION

At separation debt on mortgages and credit cards have to become someone’s problem.  If you continue to use the credit card post separation, the debt you have incurred can become your sole responsibility. This is a very different principle to debts incurred in marriage.

When you start talking division of assets, the debts that exist at the time of separation are the relevant debts to be taken into account and it is important when establishing debt levels, post separation, that those loose ends are met with an agreement sooner rather than later.  Ideally, you should consult a lawyer as soon as practicable to understand the implications of debt and how it may affect you in the wash up of a property settlement.  Every case is different so it is vital you seek advice to help you understand what applies in your particular circumstances.

Top 10 Reasons for getting a divorce

Leisa ToomeyGetting a divorce is a painful but not unexpected occurrence in today’s world but for most of the 20th century this was not the case.  At the start of the 20th Century, there was a slow but steady rise in the crude divorce rate (the number of divorces in a calendar year per 1,000 population), increasing from 0.1 divorces per 1,000 population for each year between 1901 and 1910, to 0.8 divorces per 1,000 population between 1961 and 1970. According to a recent report released by the Australian Bureau of Statistics[i], the introduction of the Family Law Act 1975 was by far the most important contributing factor involved in the higher divorce rates in the latter quarter of the century.  The Family Law Legislation, which came into effect on the 5th January 1976, requires only one ground for divorce – irretrievable breakdown of the marriage, measured as the separation of the spouses for at least one year.   It was the 1970’s and a time where, all over the world, changes in technology and lifestyles were happening faster than ever before and this new legislation was about to be embraced by a society that, until then, had few options when faced with an unhappy marriage.

Following the implementation of this law, there was a large increase in the divorce rate in 1976. The rate then declined over the next three years as the backlog of applications was cleared. Since then, the crude divorce rate has remained between 2.2 and 2.9 divorces per 1,000 population.  In 2008, the crude divorce rate was 2.2 divorces per 1,000 population.

Interestingly, in 2008, 6.0% of divorces involved separation within the first year of marriage, 32.7% within the first 5 years and a further 21.7% were separated within 5 to 9 years of marriage. Of divorcing couples in 2008, 16.8% were married less than 5 years, 24.6% between 5 and 9 years and 58.6% were married for 10 years or more. Around 17.2% of divorces occurred to couples who had been married for 25 years or more.

So, bearing all of this in mind, what are people citing as the most common cause of their marriage breakdown? From my own experiences in Family Law I have listed (in no particular order) the ten most common reasons people seek a divorce:

  • Financial Issues
  • Infidelity
  • Communication Breakdown
  • Physical, Psychological, or Emotional Abuse
  • Sexual Incompatibility
  • Boredom
  • Religious and Cultural Strains
  • Child Rearing
  • Addiction
  • Differences in Priorities and Expectations

There are other reasons which come up, but less so than the ones listed above.  Interfering in-laws, controlling behaviour by a spouse and extreme fatigue are other reasons couples cite when ending a marriage.

Financial Infidelity – it is real and it can happen to you!

I have previously discussed this topic but as a result of the number of clients I see who are victims of this financial infidelity I thought I would raise it again.

In layman terms “financial infidelity” is a term coined to describe the activities of a partner who is hiding the real financial picture from you.

It comes in many guises but in its simplest form it could be anything from secret shopping to having secret credit cards.  However, at the other end of the scale it could be gambling debts or a business venture that has gone bad – and it could be eating away the equity you have in your home – and all without your knowledge.

There are many reasons people seek to hide the truth from their partner.  They range from being ashamed of their actions, a sense of entitlement to being scared about what their partner will say or do when the truth inevitably comes out.

Unfortunately many people don’t know that there partner has been financially unfaithful until it is too late and there is a large debt to be paid off or they no longer have an asset worth what they thought it was.

However, you can have some degree of protection by ensuring you and your partner have a basic understanding of where each other is at financially. Even if one person handles the finances in the relationship, the other should at least understand the basics of how much is being spent and how much is being saved.  It is important to also seek the advice of your accountant or solicitor when committing to large business dealings to ensure you fully understand your obligations, especially if you will not be actively involved in the business. I see way too many couples who did not realize the implications of acting as a guarantor for their spouse only to find that they ended up with a massive debt after they separated and the business subsequently collapsed.

The bottom line is that lack of honesty can and does ruin marriages, especially when it comes to finances. So be up front with each other, obtain independent advice if necessary, and ensure your financial future is as protected as it can be.