Protecting your property

Leisa Toomey Leisa Toomey, Practice Group Leader of STOLaw, part of the Slater and Gordon Group 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?  To understand your rights and obligations and to ensure you make an informed decision on matters regarding children and property settlement.

Q2. How can a lawyer assist someone going through a separation? By providing relevant advice and guide them through those things that have to be considered to ensure a fair and just outcome for them.

Q3. What is the most important factor/s to consider when separating? Seeking out skilled and informative advice from a lawyer that specialises in this type of work to understand what options are open to you to resolve your matters.

Q4. There is a common misconception that seeing a lawyer will mean you will have to go to court. Is that correct? No, this is not correct. Lawyers in this area of law should always investigate settlement prospects through mediation to avoid unnecessary expense and the wasting of valuable time for the client.

Samantha Quinney Takes Part in RACQs Careflight HUET Demonstration

Samantha QuinneyA couple of weeks ago, Lawyer Samantha Quinney who is also the President Elect of the Brisbane Airport Rotary Club, volunteered to take part in the Helicopter Underwater Escape Training demonstration at RACQ Careflight’s training centre at Aviation Australia.

Sam and a few other volunteers went through a pre-briefing involving the intended procedures, which were to include a simple submersion in the helicopter simulator, a submersion with a complete inversion of the simulator, and a submersion whilst blindfolded.

“The whole experience was extremely exhilarating and it was not until you are actually inside the helicopter, being submersed, holding your breath and then turning upside down, do you realise and appreciate the invaluable training provided by the RACQ Careflight team” said Sam.

“The procedure to open the door and get of your seat becomes an automatic process. I would certainly volunteer to do it again. I’m so proud that our Rotary club can support such a great cause.”

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.

Binding Financial Agreements at a glance

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.

Family Law and Facebook

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.