Angela Tondelstrand, Principal Lawyer of STOLaw, part of the Slater and Gordon Group at North Lakes, explains the importance of engaging a lawyer when separating and that not all matters will end up in court if all appropriate avenues and steps are been taken.
Q1. Why is it important to engage a lawyer in the early stages of separation? So that you can be aware of your rights and responsibilities upon separation, the likely effect of changes in circumstances, and can take steps to protect your rights if there is a risk that time and changing circumstances can have a negative effect.
Q2. How can a lawyer assist someone going through a separation? By advising a party of their options, tailored to the circumstances of the client, whilst also informing of the various opportunities, risks and costs that those options pose. The lawyer would then follow the client’s instructions to navigate a resolution, usually by negotiation with the other party.
Q3. What is the most important factor/s to consider when separating? Obtaining timely advice from a specialist legal advisor who is not afraid to tell you what you need to know, and not necessarily what you want to hear.
Q4. There is a common misconception that seeing a lawyer will mean you will have to go to court. Is that correct? Absolutely not! In my experience most matters do not require a court process to resolve, and except in limited circumstances, lawyers should attempt negotiations if reasonably and practically possible, to avoid unnecessary waste of a client’s time and money.
Schultz Toomey O’Brien Lawyers are seeking an energetic and motivated Lawyer with both experience and a passion for Family Law to commence at their Sunshine Coast office (located in Birtinya).
Schultz Toomey O’Brien Lawyers is the Sunshine Coast’s largest legal firm with offices also located at North Lakes and Brendale.
For more information on the firm, please visit www.stolaw.com.au
The position is full time and the successful applicant will need to have 2 to 3 years post admission experience in Family Law.
You will have a mix of private and Legal Aid family law work. Travel to and from Brisbane will be required for Court appearances, mediations etc.
You will need previously demonstrated experience in:
- Conducting initial consultations;
- Advising clients in Family Law matters;
- Court appearances;
- Drafting documentation;
- Negotiating matters to settlement;
- Attendance at formal mediations;
You will be supported by a dynamic Family Law team, led by one of the Partners of the firm who is an Accredited Specialist – yet still maintain the flexibility to “manage yourself”.
The salary package is negotiable and will be commensurate with the experience of the successful applicant. You will also be able to participate in a bonus scheme for your efforts.
To apply for this position, please forward an up to date resume to our Practice Manager, Wendy Faithfull, at email@example.com
by Leisa Toomey
As Grant Hackett tries to sue his lawyers for failing to ensure a Binding Financial Agreement (pre nuptial agreement) was prepared correctly it is a timely reminder that these documents must be carefully written, prepared and executed – this also means that the other party must also receive advice to ensure they understand the implications of the agreement they are signing. The ageing couple in the story below also found themselves in a situation where the husband organized …his separation and divorce with the ex wife compelled to accept the agreement he had his lawyers draw up – that was until 26 years later when she sought ownership of the house he had promised to put in her name. He didn’t keep the house and she ended up with $1.2million.
The bottom line is you should seek the expertise of an Accredited Family Law Specialist who has been trained in this highly complex area of Family Law as it is something you simply cannot afford to get wrong. At Schultz Toomey O’Brien Lawyers we have accredited family law specialists that can help you get it right the first time, please contact us for an initial free consult.
For family lawyers, Christmas and the ensuing holiday period is one of our busiest times. People who have been thinking of separating often wait until Christmas is out of the way to instigate divorce proceedings and those who are already separated can have family issues relating to the custody of children.
For the people going through it, family issues are incredibly emotional. Couple that with a few drinks, the fact that your ex has a new partner or that they have not returned the children on time and it can make for quite an unhappy holiday. To stay on track and avoid turning what can be a nice break into a Christmas nightmare I have put together a list of things to remember these holidays:
- Plan access visits as soon as you can and put them down in writing so that there are no misunderstandings. If you are not on friendly terms with your ex have an impartial third party assist you to do this.
- Try to put aside your own feelings and encourage your children to make a special gift or card for the other parent. Even if this is not reciprocated you have helped the children do something nice for your ex and also been a good role model.
- Make an effort to keep old traditions alive and start new ones. If you used to go to Carols by Candlelight as a family try and continue the tradition but add a twist like having fish and chips by the beach first.
- Don’t make the children feel guilty if they are holidaying with your ex. Tell them how you can’t wait to hear about their holiday and try to enjoy your “me” time.
- No matter how much you dislike your ex, during the holiday season put on a happy face for the sake of your children. You may not feel like being happy but it’s important to the children and you may end up getting into the swing of things.
- Watch your spending over this period. Many of my clients say they wanted the kids to feel everything was “normal” and over spent try to achieve this.
- If your ex has your children and you are not going to be at work, try volunteering. It will take you mind off being alone and may give you fresh perspective.
- Don’t face the prospect of being alone for the holidays with dread. Have a bubble bath with a glass of wine, read a good book, watch your favorite movies, order take away, catch up with friends or go for a walk along the beach.
- And finally, Christmas and the holidays is just one time of the year. There are so many more things to look forward to, so enjoy any free time you have and make the most of having some precious moments to really relax!
By Angela Tondelstrand
Christmas is supposed to be an enjoyable time of year but, for some, it can highlight loss and be stressful, particularly if your family circumstances have recently changed.
Below are practical suggestions for improving your Christmas time experience, if you find yourself in his situation.
Look after your children
Be sure to remember your children are suffering a loss too, so do what you can to help your children through this period. Not only will your children benefit, but it will give you a sense of purpose which is in itself a reward to see them happy for the positive experience you have provided them with.
- Contact Arrangements – Do your best to plan in advance any arrangements for your children to see you or the other parent on or around Christmas day. If you can’t do this personally with the other parent, try email or a third party. Be clear about the transportation arrangements and times the children will come and go between your households. A lack of clarity about these details can be a cause of angst and dispute. If the children aren’t seeing the other parent (or you) on Christmas day, have the phone ready for the children to make a call to the other parent (or you) first thing (or all day if necessary).
- Celebrate the other parent – Be sure to do something special that helps the children know its okay to love both parents even though not living with both. For example, set aside time before Christmas to make a card or gift for the other parent, then have your child/ren personally deliver or post it. This also demonstrates your own generosity of spirit at this special time, and may have the added benefit of improving future relations with your ex.
- Remain positive – whilst it’s natural to feel disappointment and hurt about your circumstances, it is not fair to spoil your children’s Christmas with your own feelings. You are the adult and, as hard as it might be, try to keep any negative feelings and thoughts to yourself when you are with or within earshot of your children.
Look after yourself
- Your own feelings are valid – take the time to acknowledge how you feel about your changed family circumstances with other adults, when your children are not around. However, don’t dwell too long on your own emotions and try to move on and be upbeat. It’s not fair to ruin everyone else’ Christmas with your tales of woe, and it won’t ultimately improve your Christmas experience.
- Traditions – consider and plan in advance what “new” traditions you can create by virtue of your changed circumstances. Failure to plan can result in increasing your sense of loss, and make it harder for you to move on and celebrate opportunities that the festive season has to offer.
Consider your charitable side
If you are likely to be spending time on your own over the special Christmas days, consider whether donating your time to local charities or hospitals is something that appeals to you. Christmas, after all, is about giving, and your selflessness in doing so may give you immense pride and emotional reward, whilst taking away some of the loneliness or loss you are feeling.
Remember Christmas consists of only a few days of the year, and is an opportunity to celebrate all that is good in your life. Try and grasp that opportunity and make it a positive experience for you and those around you.
By Danielle Sturgeon, Lawyer
Parenting can be difficult at the best of times, but parenting with your ex-spouse can be downright impossible. Despite the obvious difficulties facing parents who have separated, the law places great weight on a child’s right to have a relationship with both their parents, even after their parents have separated and even if the child spends more time with one parent than the other. As a result of this focus, the law presumes that in most cases it is in the child’s best interests that there be ‘equal shared parental responsibility’ exercised by both parents. But what does that actually mean?
Shared parental responsibility relates to ‘major long-term’ issues only and the legislation addresses parents who have shared parental responsibility for a child, ‘consulting’ the other parent and making a ‘genuine effort’ to reach a joint decision.
At the crux of this legislation is what the definition of ‘major long-term’ is. In essence it relates to issues about the care, welfare and development of the child of a long-term nature and examples include decisions to be made regarding the child’s education, religion, cultural upbringing, health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with one parent. This definition however has been interpreted widely and an issue which often comes up is one parent arranging for the child to attend counselling without consulting the other parent. At first glance, a decision like that made by one parent solely for the purpose of helping their child seems reasonable, however it can cause difficulties if the other parent is left out of the decision making process. The reason is that the Court considers attendance of a health practitioner in relation to a long term health issue, including a counsellor, a decision which both parents should be involved in.
But what happens when you cannot agree? The place to start is a Family Dispute Resolution (FDR) provider such as Lifeline, Centacare or Family Relationships Australia who can arrange for a mediation facilitated by a FDR practitioner who can aim to assist parents come together to make a decision which is in the best interests of their child. Of course, it may be that parents cannot agree, even after proper consultation and a genuine effort by both parents to come to a decision, and a Court may be asked to make the decision. However, every effort should be made to reach a solution prior to reaching that point as it would mean leaving an important decision, in relation to your child, to a complete stranger.
by Leisa Toomey, Partner
Accredited Specialist – Family Law
Legal matters can be complex and confusing to the lay person. Family law is not exempt from this and as legal practitioners we try to ensure our clients understand what is going on and what processes we need to follow.
When it comes to matters that involve family violence and abuse, regardless of whether it is alleged or proven, there is a Best Practice Principal in place to assist all parties involved in the case. This includes, but is not limited to, the courts, legal practitioners, service providers and litigants.
Developed by the Family Court of Australia and the Federal Magistrates Court of Australia they aim to strengthen the courts efforts to protect children and any other person who has suffered from family violence and abuse.
In essence the Best Practice Principles recognises that family violence is an issue and has a place in the Family Law Act (1975). It also recognizes the harmful effects it has on its victims. It also specifically recognizes that where there are allegations of sexual or serious physical abuse of children that the Magellan case management system be followed[i].
All Family Law cases that involve family violence or child abuse are required to be assessed under the Best Practice Principles as they act as a tool for gathering and subsequently providing important background information for all those involved in the case.
At the heart of this document is the courts desire to ensure both children and parents are protected from all forms of harm resulting from family violence and abuse. This includes protecting a victims’ rights to feel and be safe when having to deal with the court on Family Law matters. The courts are able to create an individually tailored safety plan which may provide them with options for how they appear in court. Various options such as appearing by video, staggering the appearance times (so they do not come face to face with the alleged abuser), attending with support persons and in some instances with security are all available to ensure the safety of those who require it.
Safety planning is a big issue for those who are living in fear as a result of family violence. The Family Violence Best Practice Principles goes a long way to assisting those who are victims and the legal practitioners and courts who are trying to ensure their safety.
[i] The Magellan program was developed to deal with Family Court cases involving serious allegations of physical and sexual child abuse. As these cases involve the most vulnerable children, the family Court has implemented this fast track program in all of its registries.
By Leisa Toomey, Partner
Accredited Specialist – Family Law
Does harassing your ex into agreeing to something they don’t really want to agree to constitute bullying? That was one of the many factors a judge had to recently consider when deciding whether to set aside property orders.
In the recent case of Hogan & Hogan Ms Hogan alleged that throughout her marriage of 17 years she had suffered stress and anxiety as a result of the violence she had been subjected to at the hands of her husband. When the marriage was over she alleged that she had continued to be subjected to stalking and abuse by her ex Mr Hogan in an attempt to get her to agree to the property orders which she subsequently signed.
The Consent Orders in question provided for Ms Hogan to receive approximately $58,000 in assets out of a pool said to be worth approximately $583,000 at the time.
In his judgement his Honour had to consider what did and did not constitute “duress” in the context of family law litigation. Whilst not agreeing that Mr Hogan’s persistent telephone calls and text messages were sufficient enough to be described as “duress” the judge deemed them to constitute “unconscionable conduct”. Mr Hogan knew Ms Hogan did not wish to speak to him and as they both had their own legal representation he should not have been contacting Ms Hogan at all.
Ms Hogan was ultimately successful in her application to have the deed of settlement set aside. However, in setting aside the orders the judge also took into consideration that Ms Hogan’s legal advice at the time was not “appropriate in the circumstances” and that the disproportionate percentage Ms Hogan was provided for in the Consent Orders, given the length of the relationship was not equitable. In fact the judge described Ms Hogan’s entitlement under those orders as “manifestly inadequate”.
A Judge is entitled to turn parties away if that Judge is presented with an agreement that presents as grossly unfair after taking in all the facts of the marriage/relationship. A Judge can also set aside Binding Financial Agreements if the circumstances allow for it like a grossly unfair settlement. This type of power is available to the court to overcome the power imbalance in some relationships.
The upshot in all of this is that good legal advice is absolutely essential before you sign any form of contract. A good lawyer will advise you whether it is in your best interests to agree to what the other party if seeking. If you find that you are being harassed into agreeing to something you don’t want to agree to you should contact your lawyer without delay.
Source: Federal magistrates Court of Australia – Family Law, Hogan & Hogan  FMCAfam 1255 (9 September 2010)
By Leisa Toomey, Partner
Accredited Specialist – Family Law
Colin* recently came to see me as he had separated from his partner of two years. He was a hard working young guy and had saved well. He had purchased a small unit, had a nice car that he had paid off, and had some money in the bank. His girlfriend had a part-time job and was studying. She had not contributed to the relationship in any real financial sense but now she was now seeking half of everything he owned. Understandably Colin was worried about his future as he had never really given a lot of thought as to what would happen if their relationship ended.
There is a lot of misconception about what people are entitled to when a relationship fails so this month we will briefly look at what a Binding Financial Agreement (BFA) is and when it might be necessary. In short a BFA is something that married couples or couples living in a de facto relationship can enter into before, during or after a marriage or de facto relationship. You will often hear people refer to them as ‘prenuptial agreements’.
A BFA can be set up in a number of ways and can specify things like the financial settlement or break up of the asset pool, the level of financial support one spouse will give the other and any incidental issues, after the breakdown of a marriage or a de facto relationship. In Colin’s case he could have had a BFA that clearly specified that should the relationship fail, the girlfriend would not be entitled to make a claim on any of the assets he had prior to the relationship.
By having a BFA in place couples can have some certainty over how the asset pool will be broken up when the relationship ends. However, it is strongly recommended that they be reassessed at least every two years and in particular after a significant event has occurred in the relationship such as the birth of a child or one party inheriting a sum of money.
Since their introduction Binding Financial Agreements have come under quite a bit of scrutiny so it is essential that both parties must also have sought and received independent legal and financial advice prior to signing the document and, as stated above, they also need to be reviewed by your solicitor on a regular basis.
Going to court to settle a divorce can be expensive and time consuming, particularly if there is a large asset pool to divide. A BFA may remove the need to go to court at the end of the relationship, but in itself can be a time consuming and costly exercise to complete. However, for those with a large asset pool it may be a worthwhile investment.
*Not his real name.
One of the wonderful things about the technology that is available to us these days is that we can be in touch with each other, at any time of the day or night. We have the world at our fingertips and we can source anything we want from anywhere in the world – all at the click of our mouse. However, the downside to that is that there is no such thing as flying under the radar when you use social networking sites like Facebook and Twitter. Such was the story of a man recently served legal documents via his Facebook page.
This is the second time this has happened in Australia, and by no means will be the last. In April 2010, Federal Magistrate Stuart Brown decided in the case of Bryne & Howard that a paternity test order be served via Facebook. In this case the man in question had a brief relationship with a woman who later had a child. When she sought child support she was unable to prove the child’s paternity as the father was not listed on the birth certificate.
The woman’s lawyers tried unsuccessfully to contact the man who moved regularly and did not respond to their letters. However, it was discovered that the alleged father was a regular Facebook user and after being advised that a private message could be sent via Facebook the magistrate made the order that the documents be delivered to him electronically.
The documents were duly sent and soon after, the man closed his Facebook page down. However, the story does not end here. As a result of closing down his profiles on both Facebook and MySpace the Magistrate said “I am satisfied Mr Howard has been properly served with the documents and the parentage test can have only one outcome because he is (the child’s) father.” The mother was ultimately found to be entitled to child support which was payable by the now confirmed father.
Whilst this particular case has made news headlines this year, five years from now it will most likely be accepted as a normal means of contacting and serving legal documents on people who think they can remain elusive, yet still maintain a profile on social networking sites like Facebook.
Leisa Toomey is a partner at Schultz Toomey O’Brien Lawyers. Leisa is also an Accredited Specialist in Family Law. To speak with Leisa or one of our other Family Lawyers call us on 1300 STO LAW.