Law for All podcast series

There are a lot of times throughout the year where we all experience financial stress, whether it's the start of a school year, mid-year sales, extra periods where we've just got to pay our bills, or even coming into Christmas. And there is a really strong temptation to use those Buy Now Pay Later schemes.

We're having a chat today to one of Legal Aid’s consumer advocates, Paul Holmes about Buy Now Pay Later and what's it all about and what are some of the pitfalls.

So Paul, let's just start with what is Buy Now Pay Later – isn’t it just a lay-by?

Paul: So, Buy Now Pay Later is actually a bit different to a lay-by. I know in the shops it's marketed as being an alternative to a lay-by, but in reality, it's very different. And the reason is this; Buy Now Pay Later is a scheme that allows you to obtain goods from a shop, or services from a shop without immediately having to pay for them – you take the goods away and you pay the amount back in fortnightly payments. The difference is [with] a lay-by, you didn't get those until you fully paid for them.

Who would use it the most?

Paul: In our experience, we see a couple of groups who use it the most - one is young women who spend a lot of money using Buy Now Pay Later in clothing stores. They get the instant gratification of being able to get that latest style immediately and then pay it back at a later date. Another group, we've seen use it a lot recently are young families who are using it to pay for basic expenses, or are using it to fund the return to school expenses.

I guess there's the rub, isn't it? Because you've just come off the back of Christmas. You're trying to pay for school products, which have a set deadline don’t they?

Paul: Absolutely. And there is actually research released in The Courier mail which suggested that in Queensland the average Buy Now Pay Later debt that Queenslanders have has actually dramatically increased in the last year.

So why do people use Buy Now Pay Later?

Paul: I think there's a couple of reasons. One is the instant gratification that you can get whatever it is you need now without necessarily having all of the money that you would otherwise need to buy the good using another form of credit or loan. And I think the other thing is Buy Now Pay Later does not have the same legal requirements, placed on it as other credit products when it comes to assessing your ability to successfully repay a loan without such.

You've seen some pretty crazy examples of Buy Now Pay Later, haven't you?

Paul: Yes. My favourite one was coffee and the prospect of being able to Buy Now Pay Later a coffee, which depending on where you go, is, what somewhere between five and ten bucks. You were paying this particular product back at I think it was at $1.75 a week.

What other things can you buy?

Paul: I've seen dental surgery, I saw recently a report of beauty treatments and I haven't seen this yet, but somebody suggested to me plastic surgery on Buy Now Pay Later and then there's your run-of-the-mill services that you see in shops; hairdressing is a common one. If you look on eBay there is a Buy Now Pay Later option now offered on eBay.

So pretty much it's everywhere through our society now.

Paul: It has made it pretty much everywhere in our society.

There've got to be some pitfalls here.

Paul: One of the attractions Buy Now Pay Later uses to market itself is they say there's no interest charged and that differentiates, it say from a credit card, or a personal loan. But the sting in the tail, we find for a lot of our clients who will end up with five, six, seven different Buy Now Pay Laters they're paying back is that if you miss a payment there [are] late fees. And in some buy now pay later schemes there are other fees such as administration fees or account keeping fees that are charged each month. And when you add all those up, they can add up to substantial additional fees in some cases.

March 2021 saw a new code of conduct introduced to try to counter some of the issues that everyday people experience dealing with Buy Now Pay Later products. What does this code mean for these people?

Paul: Industry codes are quite common across all industries and they aim to provide consumers with a complaint mechanism that they can use to complain when companies in that industry aren’t doing the right thing. Typically, in our experience, we see industry codes, like this one work really, really well when they work in conjunction with legislative regulation as well. In this particular instance, it remains to be seen how effective the Buy Now Pay Later code is. We obviously hope that it will provide effective remedies for consumers who are experiencing financial hardship and those other associated issues that come with being overextended with Buy Now Pay Later products.

So on that topic, what can people do if they are in trouble with their Buy Now Pay Later products?

Paul: First Port of Call, I would suggest is talking to ourselves at Legal Aid Queensland on 1300 65 11 88, and also talking to a financial counsellor who you can get in contact with on 1800 007 007, and both of us can talk you through how to approach your Buy Now Pay Later providers and what you can reasonably ask for under the existing legislation and this new code that's been introduced.

Okay, there you have it. So if you're experiencing issues with Buy Now Pay Later or have other debt related issues, you can get help through Legal Aid Queensland on 1300 65 11 88, or through the National Debt Helpline on 1800 007 007, or jump on to Legal Aid Queensland's website www.legalaid.qld.gov.au for more information.

In Queensland, it seems if we're not experiencing Cyclones and storms with high winds hail and flooding, we've got fires. And occasionally, they both even happen at the same time in different parts of the state.

Today one of our senior lawyers. Paul Holmes is going to chat about what his legal tips are when it comes to dealing with natural disasters; what you can do beforehand and of course afterwards. And we hope these tips will help reduce your stress if you live in a high-risk zone.

So Paul, let's start at the beginning. You are a consumer advocate when it comes to a natural disaster, why does Legal Aid end up getting involved?

Legal Aid Queensland's there for people when Queenslanders are in trouble and following a natural disaster, people's lives get turned upside down and so Legal Aid’s in a great position to help them with issues such as debt and bankruptcy, employment issues that often happen following a natural disaster, your family law issues, crime and insurance.

So you've worked with quite a few big natural disasters…

The first major one I was involved in was flooding that started in regional Queensland at the end of 2010; the Brisbane and Ipswich floods and Lockyer Valley in early 2011 in January, and then 10 years ago now Cyclone Yasi was hitting North Queensland. And since then we've been involved with every natural disaster that's happened in Queensland and have been helping people with their insurance along the way.

So why is it that you end up seeing people about insurance?

What we see regarding insurance complaints is people who’ve either had their insurance refused when they've made a claim, or for some reason their insurance has lapsed and a seeking help about whether they have any rights. Let's be honest following a natural disaster, we see it will take people anywhere between three to five years and sometimes longer to get their lives back on track both financially and dealing with the trauma that happens in a natural disaster.

So tell us about some of the pitfalls that you've seen – what are some things that people shouldn't do?

Unfortunately, one of the things about natural disasters is that in addition to seeing the best in people, and you see some wonderful people following actual disasters, there are always people that come out offering to help for a fee and don't necessarily come good with that help they are promising. So for example, they might offer to manage your insurance claim for a fee or percentage of the claim you getting paid.

It's worth remembering that it's free to lodge an insurance claim and it's also free to complain if you feel your insurer is not doing the right thing about you to the Australian Financial complaints Authority. You shouldn't have to pay anybody any money in order to have a successful insurance claim.

The other thing that happens is you might get what I'll kindly describe as unlicensed workmen coming around to your property offering to fix your property for a fee. Generally speaking, they don't do a very good job and the added problem for you is if they do the work you don't get the benefit of the guarantees that insurers offer when they're approved workmen fix the damage to your property.

Similar thing happens with cars. If your car gets affected by a flood or a bushfire only give that car to somebody sent by the insurer, for example, the government won't pay to tow your car away for you and if somebody says that's happening, they're not telling you the truth.

Unfortunately, we've seen that as recently as last year following some storms in Brisbane.

Let's have a look at what people if they live in a high risk area, what should they be thinking about doing before any natural disasters could happen?

In our experience people don't tend to look at their insurance policy until something's gone horribly wrong. And that's often too late to work out whether you're covered by what's happened to you or not. I always think it's a great idea to check your insurance policy yearly to make sure it covers you for what you want because in our more mobile society people move property a lot more than they used to and what protects you at one property, like on if you're in a low lying area you need protection from floods, might not protect you if you move to a more arid area of Queensland where bushfires might be a risk.

So it's always important to have a yearly look at your insurance policy and make sure it protects you against these major hazards. Work out what you covered for and if you're not sure, ring up an insurer and ask, “Am I covered for this?”

What if times are a bit tough financially and say for example, you're renting, and you can't afford to pay your insurance for your house and contents.

Be careful just going for the cheapest policy because the cheapest policy doesn't always give you the best coverage and having insurance for some things is always better than having no insurance at all. Particularly following COVID, there are still a lot of us in financial trouble and times are tough, but it's important to prioritise where you can protecting yourself and your property from as much potential danger as you can afford to.

I guess I've heard people say, oh, well, I don't really have much that's worth anything to ensure anyway, but is it the cost of replacing that you know, the cost of replacing is pretty huge… and I think that's one of the hardest things for people to conceptualise.

In today's society, mostly we all have a lot of stuff. If we had to write it all down and we’d probably struggle but when you add it all up, it adds up pretty quickly and having that sort of conversation with an insurer about what amount of content [coverage] you need is a really important one because it's only once you have to start replacing things that you realise how costly it can be.

The other thing that's worth talking about in that space is the importance of if you've got a house and you've got a mortgage even if times are tough, there's still usually a requirement in your mortgage to keep your house insured and it's really important to be aware of that because if you have an uninsured house and your mortgage says you must have insurance, you're actually in breach of your mortgage. And if you're in breach of your mortgage, there's a risk that the bank might try and repossess your house from you because they are trying to protect their assets because if it's uninsured and it was to go up in flames you might end up owing the bank a lot of money.

Once you decide on insurance, what should you do?

I would keep a very clear record both of the policy and any of the important details and I'd keep that in a safe place with other important documents, like for example, your passport and other important ID documents like that because in the middle of a natural disaster, the last thing you want to have to do is madly scramble around the house to five or six different places trying to find these documents when you really should be getting out.

What's the very least in information that should be keeping in that one central place?

I'd have a passport, I'd have my insurance documents,  the other thing I keep and this is a personal thing, I keep a list of the valuable property in my house so that if it happens and I'm under a lot of stress, I don't have to stress myself out even more by trying to remember what's there.

I guess keeping a document or keeping contacts in the phone of who your insurer is as well. Particularly, you know if you go through a more an insurance broker or whatever. You may not necessarily easily. Remember? No, no, no particularly a traumatic situation too.

And the other important bit about that is don't necessarily feel you need your issurance policy number there. As long as you've got your insurers name, they should be able to identify you through other means rather than the policy number.

Could you scan copies of documents and keep them on the cloud?

I think it if you're comfortable with technology and you've got a safe place online – not a bad idea at all. The thing to remember there is if you're going to do that, make sure it's cyber secure and it's not at risk of being hacked.

What we just chatted about is what you can do before a disaster happens. Is there anything you can do at the time?

The priority should always be keeping yourself and your family as safe as possible in a natural disaster. And then as soon as you can after an event jot down some notes about what you've seen, what you remember because that can be really important information if an insurer was to question the validity of your claim.

And so once things are safe again, you've been able to work out, what's been damaged or destroyed. What are the first things you should be doing? Talk us through that process.

So I would always as a first port of call make sure I lodged a claim. There's often following a natural disaster lots of rumours that go around in the community about “Oh you'll only be covered if this happened or you won't be covered if the rain hit after a particular time”. You're not the experts in the weather and you're not the experts in your insurance policy.

No listening to the bush Telegraph, lodge the claim and let the insurer make that decision based on what you've experienced and what's happened to you in your local area.

[Should] You take any pics of your property?

Absolutely the more pictures the better because it gives you as close as possible a contemporaneous record of what happened to you and that can be really important.

How soon should you do that?

Do you mean making the claim? Yeah - day after A day after would work, absolutely and be aware that sometimes following a natural disaster, there can be a bit of a wait time on the phone and if your insurer’s got an online claim option and you have access to a computer and a lot of us have internet on our phones now, that can often be an easier way. And I've spoken to some people that thinking an online claim was less stressful for them because it didn't feel like they were having to tell the story again, to somebody else, but that's a very personal decision depending on your experience.

What should you expect once you've lodged your claim then?

The first thing that happens usually is the insurer will send out an assessor to your property to look over the property and the damage that has happened to it.

At that point, I always encourage people to tell the assessor the story of what they saw if they have videos or photos of what happened that's really important information. And the reason I say that is people often think “Oh, well the experts are looking at what happened to the ground and the runoff and things like that.”

But sometimes the story that presents can be different to what people experience and that's not the assessor trying to do you out of an insurance claim, it's just sometimes the ground doesn't tell the full story of what happened to a property. So always give that information because it's so important to the success of your claim. So things like where did I see the flames come from, or in a flood the water came up down the road or out up out of the drain down at the next corner. All of those things are really important.

The other thing that will happen at that point is if your property has been totally destroyed, you're going to want to make a claim on your contents that we were talking about earlier. And if everything's gone, I'm seriously questioning what value it would be if an insurer would ask you to give you a list of everything you've lost. To me that's unnecessarily traumatising people when they're already traumatised enough and if that happens to you following a natural disaster seek legal advice about that immediately because I don't think that's an appropriate thing for an insurer to be doing and unfortunately in the past – it’s occasionally – something that clients have experienced.

What happens then is the assessor will write a report for the insurer and the insurer will look at that and make a determination around whether the damage that happened to you or your property fits under your insurance policy. If it fits you get paid if it doesn't fit, then they will deny the claim. The thing to remember is sometimes there can be a bit of a delay between you lodging a claim and you get a notification about whether you're going to be paid or not.

What kind of delay we're looking at?

The thing about natural disasters is the usual time limits that apply under the insurance code – the general insurance code of practice – don't usually apply and so it's difficult to give you a precise time there just that the insurers are expected to work through those claims as quickly as they possibly can and in the majority of cases they do do that quite quickly; where it can go wrong is when for example, they don't have enough assessors to go out and assess all the damage and unfortunately in Australia, that's a reality of what happens.

And so if your claim is paid, I understand you've got options?

If your claim is paid most people think okay, great. I can get some money and there's actually a couple of different options.

One is a cash settlement and the other is having your insurer rebuild the property for you. And there can be pros and cons to both options. The thing for me is that there are certain circumstances that if you fit into them a cash settlement can be a good idea. But if you don't fit into them, it's not such a good idea.

Give us the pros and cons for a cash settlement.

So the thing about a cash settlement is it gives you some money up front and if you're somebody that wants some control over the rebuild you would then have that control.

The danger there is most people underestimate how much work it takes to organise builders, various other tradesmen, get them to the property at the right time to do the work in the right order that's needed to properly start rebuilding the house.

And also if there are variations in cost… exactly and that's the other thing if you're asking for a cash settlement make sure it reflects the cost you will have in rebuilding the property and not the insurer because the insurer being as large as they are can get what's called economies of scale and can get that labour often and that work done often cheaper than you would be able to go as a person yourself into the community.

The other thing to be aware about a cash settlement is if for example, you've been a victim of a bushfire and you don't want to rebuild in that area, then it can be a good option for you because it allows you some cash maybe to look at moving somewhere else and building somewhere else and then you can sell the property.

The danger there for you is following a bushfire, the properties that have been affected generally aren't worth as much as they were before the bushfire.

What happens if you get the insurance, to rebuild your property then?

I'm personally a fan of getting the insurer to rebuild it because of the guarantees they offer on their work. Various insurers and some of them will offer a lifetime guarantee on the work that's done by their approved Builders not all of them, but that's pretty damn good because it allows you some peace of mind that the rebuild has been done to a really high standard.

The risk or the feedback I've had about people not liking that option is sometimes they feel it can take a really long time. I would balance that out with the idea that if anybody's got the ability to get tradesmen to an area and to get work done, it's big insurers who have logistical capability that you and I could only dream of.

Now in this process though there's some furphies out there that often come out on that bush telegraph.

So if you agree to have your insurer build the property, or have the insurer pay somebody to rebuild the property, what happens next is a scope of works will be done. And that's a complicated name for a document that is essentially a project plan which will list all of the things that the insurer says, were damaged and are covered by the insurance policy.

So you might get a list of 10 or 20 pages saying “Rght rear window needs replacing… strut on this particular portion of the roof needs replacing.” When you get that, that can initially be a little overwhelming and people are often worried about “Have we covered everything and what happens if I find something that goes wrong later on?” Let's let's lay to rest some of that stuff.

I think the key bit when you get a scope of works is usually by this point most people are pretty clear on which parts of the house are damaged and which parts aren't, so I always recommend having a good look at the scope of works and saying, okay do I think all the damage is covered, and if you don't understand some of the technical language, ask them what it means and if they can't tell you, ask more questions until somebody can explain what it means because that's the only way you'll feel comfortable that your property is being repaired properly and most insurers and builders I’ve encountered don't have a problem with people asking reasonable questions to make sure they’re covered.

The other thing is though, when a rebuild starts often further damage comes up as builders start delving into the slab and starting to rebuild. If that happens, that's okay because then what you say to the insurers is we need to vary the scope of work or we need to add to it.

So there's no problem with saying look we've uncovered more trouble?

No problem in the world. Yeah, because one of the furphies that's out there is that your scope of work has to be 100% right before a builder starts to rebuild your property. And the practical reality of that is that's just not possible in a lot of cases because not all damage is immediately apparent.

So be confident in that. There's also, and this is going back to cash settlements, just for a minute, there's also a clause in the General Insurance code of practice that if you take a cash settlement within a month of a natural disaster, you've actually got 12 further months to raise other issues that become apparent to you that the natural disaster caused.

So the doors haven't closed behind you?

Yeah, the doors haven't closed yet.

Even though they've got your money?

Even though you've got your money, so long as that extra damage can be shown to be linked to the natural disaster. If for example the damage was already there, that's not the insurer’s fault and that's where the cash settlement will often come in that we haven't talked about because an insurer might work out that they can't do their proposed fixing of the property without you fixing the existing damaged first. And so they'll often in that scenario, they will offer a cash settlement and it falls on you to fix the property in that way.

So what happens if say for example, I disagree with the scope of works or with the cash settlement figure that the insurer is offering to me then?

So if you are not happy with what you're offered, your first port of call is to ask your insurer’s internal dispute resolution area to have a look at your complaint and they’re a separate section of the insurer to the claims area and they effectively have a secondary look at your claim to see whether the insurer made the right decision originally.

It's usually not enough to say to the insurer “Look I disagree with you.”

Usually it's nice to come up with some evidence...

Yeah, it usually helps if you're able to say look you made the wrong decision because the water came from the other direction, or you made the wrong decision because the damage wasn't already there and here are photos of my house before it happened. So they will have a look at that. They generally have 45 days from when you make a complaint to review it and they'll come back to you with a decision either saying “yep we agree with you and we're paying you more” or “No, we don't agree with you, what's been offered is all we're doing” and if that happens your next option is to lodge a complaint with the Australian Financial Complaints Authority and me being me, I'm lazy and nearly always call them AFCA.

Right So how do you do that then?

So they have an option of you ringing them up, or lodging a complaint on their website, which is www.AFCA.org.au and there's a really easy to follow online form that you can enter your details in and lodge the complaint. AFCA is a free service and an independent Ombudsman who take an independent look at what's happened to you and whether they think your insurance policy covers what happened to you.

What happens if your claim is refused?

So if your claim’s refused the same complaints process applies.

Why would a claim be refused – let’s firstly touch on that?

Typically in our experience, a claim will be refused if there's an exclusion to your insurance policy. So, some people for example, will have a flood insurance exclusion in their policy, which means that if their property’s affected by a flood as opposed to a storm, then they're not covered. And the reason we recommend seeking legal advice in that scenario is it can often be a very technical discussion about whether the water but first came on your property, fell from the sky or came up from a river.

 Another reason will be that your insurance policy has lapsed and that might be because – common scenarios – you might have moved and not got the renewal notice or forgotten to make the payment. The thing about that scenario is there's really specific rules in the insurance contracts act about when and how and insurer can cancel the policy and what notice they need to give you. So if that's the reason given to you for your claim not being paid, it’s often really important to get legal advice to make sure that the insurer’s done the right thing and followed the right procedures.

What if you're still insured and you've moved, but you forgot to update your address?

That's very much a case-by-case discussion about exactly what happened and what sort of notification was given, but there is a risk in that scenario that if you haven't changed the insurance policy over it doesn't apply to your new your new property.

And what also – I'm playing devil's advocate here – what also if you know there's a natural disaster on its way and you call and you get yourself a cover note?

Yeah and the thing about cover notes and applying as a natural disaster is coming is that many insurers have what's called an embargo, which means that if you ring up from a particular area within say 48 hours of that natural disaster trying to get a policy they'll probably still give you the policy, but it won't apply until a date in the future.

So reinforces what we're talking about earlier, it's important to be on top of what insurance you've got and what it covers you for, because if it gets to the stage where a natural disaster’s nearly here, it's nearly impossible to get insurance that will cover you for what's coming.

The insurer’s access to weather data and what's coming and where it's coming is highly sophisticated and often far better than any data you or and I will have access to.

We went off on a bit of a tangent there… So what does happen if your claim’s refused then?

So you make the same complaint to an internal dispute resolution area and if that doesn't change the insurer’s view you make a complaint to the Australian Financial Complaints Authority. And in the past when we've lodged a complaint with the Australian Financial Complaints Authority, we've been successful in resolving and turning around some refusals and we've lost plenty of cases too.

The thing about AFCA in my experience though, is they do their utmost to get the experience of everybody involved in the disaster, so that they can make the best possible decision they can.

And that in the past has often involved decision-makers at AFCA actually going out to your property and having a look at what happened for themselves. Not in every case, but they have done that in the past in a number of cases and to me that's a really important thing because then you know, the decision makers actually been on the ground and has a bird's eye view of the property and what could have happened to it.

 So going back to an earlier comment, we were discussing the pitfalls. We've seen companies advertising that they can get insurers to pay claims. What's the deal with that?

These companies purport to be able to make insurers change their mind when they refused your claim, or they purport to be able to get them to pay more than they've offered you for resolving a claim. Sounds too good to be true… In a lot of cases I've seen it is too good to be true. The complaints processes for disputing an insurance claim refusal are completely free and they don’t require a lawyer.

You're actually able to do the work that they purport to be able to do for free and these companies will often charge a significant amount of money, or a percentage of any successful claim in order to do work that you, with the assistance of ourselves and the insurance law service are able to do for free. I'm always wary of claim services promising the world because often many of them can't deliver.

So finally, where can people go if they need help because they're not happy with their claim outcomes resulting from a natural disaster?

If you've had any legal problems arising out of a natural disaster and you want to discuss them, please call our natural disaster line, which is 1300 527 700 or jump on our website legalaid.qld.gov.au/naturaldisasters

We're having a chat today with legal aid Queensland consumer advocate Paul Holmes about some of the pitfalls and warning signs to watch out for when you're buying a new but used car.

So Paul, before we get started tell us about some of the types of calls you might get during the year about car purchases?

I think the most common one we get is where people have bought a car they drive it away and as they're driving away from the car yard, it will break down or it will break down within, say a week of purchase and quite understandably those consumers are very upset that the car has lasted all of about five minutes before they have to spend money on it.

The other classic that we see is when people buy a car privately the person they buy it from doesn't tell them that the car is secured against the loan and somebody knocks on their door a few months later saying they're repossessing the car.

So maybe now is the time to talk about the difference between buying a car a used car privately and use car through a car yard. Let's start with private.

If you're buying a used car privately. Have you got a checklist that perhaps people could consider?

Look the first thing I always say is get it inspected if they're not going to let you get it inspected, I'm concerned about what's there, that they don't want you to find.

I'm a very cautious person. I would do that even if there's the appropriate safety certificate issued because the only way you have complete peace of mind is if you go and get it checked out yourself.

The other important things to look at are make sure you check the market value because depending on the condition of the car and how many Ks (kilometres) it’s done, the price of the same make of a car and model of a car could vary by thousands of dollars.

The other thing to check and this goes a little bit to the loan problem I was talking about before – have a look at the Personal Property Securities register. It's a register that has a list of everybody that's got an interest in that car on it. So obviously if it's clear you're in the clear and it's just the owner who's got an interest in it, but let's say there's a bank name on there, that means the bank has that car as security against a loan, and so if you buy it, you're buying not a clear title. And there's a risk that the bank could come knocking on your door a few months later to try and take it.

How would you check that register

There is an online website. It's www.ppsr.gov.au you do have to pay a fee to do the search, but from memory, it's like under 20 bucks and to me spending that sort of money to give yourself peace of mind is well worth it.

With an independent report, how would you go about doing that?

I always recommend well-known people and the classic in Queensland is RACQ. They for years of offered for their members the ability to have evaluation done but failing that you might have a trusted mechanic or a trusted person who knows about cars who you'd get to go and do that report for you.

So, say the deals done and you’re happy with it, you've had all full ticks of approval, what do you have to do then?

Look the big one is to make sure the registration gets transferred. And so that unsurprisingly requires a chat with Department of Transport. The key bit about making sure that happens is it's not until that transfer happens that in reality, you've got that clear title and clear interest in the car and (The Department of) Transport and Main Roads of course is also interested because they then know where to send the rego to get their money for you having the car registered in the coming year as well.

So we've had a bit of a look at the checklist of things need to do if you're looking to buy a used car from a private seller. What are the pitfalls though?

Look there are a number of pitfalls that you need to be aware of when you're considering buying a car privately. The big one is when you're buying a used car there's no cooling-off period. Additionally, you don't have the protection of the consumer guarantees and those consumer guarantees look at things like when you buy in this case a car it must be of an acceptable quality. Now, what's an acceptable quality will differ if it's a new car you would expect that new car to last potentially for a couple of years without requiring any major repairs done to it. Whereas if it's an older car with say 300,000kms on it, you still should you still should be able to drive it away from the car yard and drive it successfully for a month, but you could reasonably be quite cranky if it breaks down when you're driving down the road after buying it from the car yard.

So those things are a bit harder sometimes for consumers to assess and it's always good to get some advice, if you're unsure from us at Legal Aid. The other thing about it is there's a risk you won't get clear title. And when I talk about clear title, we talked about the Personal Property Securities Register earlier.

And on that register if there's say a bank with an interest in the car when you buy the car that bank’s interest stays there and so you don't have the car owned in your own right, the bank also in a sense owns the car.

So, to be really specific here, does that mean that if somebody has a loan on that car and they haven't paid it, but you've bought that car, you are potentially responsible for that?

Well, it's not that you're responsible for the loan. What could happen though is if the person you bought the car from doesn't pay the loan. In theory the bank could come and repossess the car you bought because they had the ownership, well they had that security interest in the car. And the other thing about that is if things go wrong such as that, your recourse is to sue the person you bought it from, the private seller and depending on their assets and their income, it might well be very difficult to recover any money from them.

So you could be left without a car and without the money that you paid for it?

That is a risk. Yeah. Okay doesn't always happen, but we've certainly seen it happen.

If I bought a used car from a car yard, do I have better rights in this situation?

I would say yes. And the reason I would say yes is there is a number of protections both in our State legislation and Federally that protect you when you're buying a car from a car yard.

If I'm buying a car from a car yard and it's a licensed dealer, what am I entitled to do as far as checking it and ticking those various boxes.

So, the big one is you're allowed to test drive the vehicle.

But be very careful what you sign when you say your test driving a vehicle, because you're allowed to test drive it and occasionally in the past. We've heard stories where our car yard has required you to sign a contract before test-driving it. It's fine for you to say sign something saying yes, I'm taking this for a test drive, but make sure there's not anything more in there such as you committing to buy the car or anything like that. You don't have to commit to buy a car in order to take it for a test drive.

And if you sign that document are you also potentially signing for any damage that you might do if say somebody bumps into you?

Yeh potentially, but under the test-driving conditions that car should be ensured by the car yard and should be protected. So that's not so much for a risk in my view.

The other really important stuff is unlike that private car sale we were talking about you've, got a clear guarantee. You've also got a one business day cooling off period for second hand cars and I should be very clear here that cooling off period does not apply to new cars.

And the other trick that will happen in the cooling off period is they might try and get you to drive the car away. If you agreed to complete the sale and drive the car away, no more cooling off period, so be very, very careful about that.

The other big advantage if something goes wrong, is there's motor dealers legislation that was passed by our State Government and amongst other things is in certain circumstances when things go wrong, you've got access to what's called a claims fund that may provide you with some compensation if you lose money because the dealer’s done the wrong thing. That doesn't apply in all circumstances and all situations, but it's there and it provides some good protection.

So, there were some more changes relatively recently here in Queensland about buying a second-hand car from a car dealer, tell us about the “lemon law” changes?

So, a couple of years ago the Queensland Government introduced some changes that were designed to protect people when they buy a car and it's not of the appropriate standard and when we're talking lemon laws, I liken it to when the car spends more time in the garage or car repairer getting fixed, than it actually does on the road and adding to that recently in addition to the fact that you can go to QCAT (Queensland Civil and Administrative Tribunal) over a motor vehicle dispute for up to $100,000, the Federal Government has changed the Australian consumer law as well and it’s amended one section that deals with minor and major defects. So previously one of the problems with accessing help regarding a lemon car is proving that so many minor defects actually made a major defect which is starting to get a bit jargony, but it's essentially if you've got some constant problems with the car, you're entitled to say this car as a lemon. That's what it's designed to do and that change helps that because you no longer have to argue that 10 minor defects makes a major defect, this legislation really clearly sets out the number of defects and the type of defects it takes for you to be able to say this is a lemon.

But lemon laws don't apply to private sale?

No they don’t.

So, should I still get an independent check done before I buy a car from a car yard then?/p>

I'm a lawyer. I'm risk-averse. I'm always going to say get an independent check because that way, you know, you've done everything possible to make sure what you're purchasing is of an appropriate standard.

What do I need to watch out for then if I'm buying a used car from a car yard?

I think over the years we've probably all seen the (A) Current Affair horror stories around odometers being fixed, fiddled with to reduce the kilometres.

There are also stories of, as we touched on earlier, people getting the car out of the car yard and it literally breaking down in the gutter a hundred meters down the road. Most of those problems you can address by getting an independent person to look at it because and this is the risk averse lawyer saying again, I'm more likely to trust somebody I've spent a little bit of money on to go and get something checked because I know who they are and I know what their reputation’s like.

Most car yards are fine, but the problem is as consumers. it's very difficult for us to identify which car yards are not doing the right thing. And so the way to protect yourself there is to take these steps such as the independent check.

When it comes to contracts give some tips there.

The biggest one is if your husband / wife / partner or significant other is at the car yard with you and they ask you “Just sign so I can get the loan, you won't have to pay any of it.” Be very careful there because the classic one there is if they could afford the loan they wouldn't need you to sign as well and the chances of them are not paying is of great risk to you because either you're being signed up as a joint borrower to the loan, in which case you're what's called jointly and severally liable for the loan, which means you could potentially have to pay at all, or you might be being signed up as a guarantor loan, which means if the other person doesn't pay, the finance company can chase you for the full amount of the loan as well.

The other classic that happens a lot is they just want you to put a hold on the car so nobody else can buy it. Be very careful of those contracts because they often have more in them than you just putting a hold on the car.

And then the other one is there are many car yards out there that will keep you there for a long time and it wears you down being in the same place for hours on end. And we have had cases where people have signed a contract just so they can get out. If you feel like that, don't sign anything – it’s okay to walk away.

But that's just dealing with the car. Don't get me started on the finance. We're all keen to get a car and when we want a car and we see something we like, we’ll do almost anything to have it there and then. And add a bit of pressure too from sales people. Yep. Salespeople are excellent at their job. No question about that. So the hard bit is taking the time to find a finance deal that’s actually suitable for you. There are a lot of car yards that will have an in car yard finance person and my experience of the loans that those in car yard finance people can offer is that they tend to be far more expensive and have higher interest rates and often higher fees than if you had a chat with your local bank and found out what they could offer.

There is nothing and no restrictions on you from saying to the car yard, “Look, don't want to sign up now, want to go and investigate what my best options are for finance”,  or alternatively, before you go to the car pop into your bank and say, “Look I’m looking at buying a car, what's the most you think I can borrow? What interest rate you're going to charge me?” Because then at least you know, what's affordable for you, you know what the best deals are and you don't end up paying more than you have to when you're getting that finance loan.

And the final thing to watch out for and I'll be honest, this drives me crazy, is insurance. It's an absolute must I think to have insurance that protects the car and there are various things there from third-party insurance to comprehensive that is designed to either protect you, your car, or anybody else's car, or their body that you might hit in a car accident.

Where I struggle with and where a lot of people struggle with, is they're often signed up to a lot more insurance when they buy a car and we call it add-on insurance and over the past two years ASIC has ensured that companies offering add-on insurance have paid back literally over a hundred million dollars to consumers in insurance that ASIC believes, and I believe too, people should not have been signed up for.

There’s scaremongering in action.

Yeah and look the classic ones are consumer credit insurance. There are extended warranties, there is shortfall insurance, there is tyre and rim insurance, that like we could spend minutes me listing all these insurance and generally speaking, they're not needed or they don't provide a benefit to the consumer and the classic is consumer credit insurance and over the years I've seen pensioners signed up to consumer credit insurance. What is it? Generally speaking, what it does is it protects you by being able to pay your loan while you're unemployed. Now the problem with that for pensioners on the pension is they were never employed in the first place and so they can't access it.

Similarly, extended warranties – we were talking before about the Australian consumer law and the consumer guarantees under there. Often those extended warranties that you're paying hundreds of dollars for give you no more rights than you get for free under the Australian consumer law. So it pays to check whenever you signing a car contract or a finance contract, what are these extras that they've added and do I actually need them? And if the answer is no, get them taken off because the worst thing you can do is get a dodgy insurance and then be paying interest on it because it's part of your loan and the Consumer Action Law Centre has a really great Demand a Refund website, go back and have a look at your loans and see insurance that you didn't know you had, or you don't think was ever going to be of any use, to demand those premiums that you’ve paid back from the insurer. I highly recommend having a look at that website.

So say you end up buying that car from the caryard that you liked and you're pleased with that process, what happens if something goes wrong afterwards? What can you do?

The first step is always to complain to the motor dealer and see if they're able to resolve your complaint without you having to take it any further. Office of Fair Trading also offers what's essentially a mediation service between yourself and the service provider.

Is there any time limit on any of this?

I always recommend doing it as soon as possible because the longer you leave it the harder it is to prove that if say in the case of the car not being roadworthy, that the car yard ought to have known that it wasn't roadworthy. If talking to the motor dealer or seeking help from the Office of Fair Trading doesn't work, then your next step is to take the matter to the Queensland Civil and Administrative Tribunal which is a mouthful and why I always end up calling it QCAT. QCAT has a jurisdiction for motor vehicle disputes of up to $100,000 and it will look at the entirety of the circumstances and make a call about whether or not you as a consumer were sold a car of the appropriate standard. When you're going to QCAT it's always good and always adds to your case if you've got an independent mechanic who's able to comment on not only what the damage was or is, but also when they think it should have been apparent to an appropriately qualified person because if it should have been apparent to somebody before the car was sold, then that's a good argument for you. But if it's something that could only have been picked up after the car was sold, that weakens your case.

And if that fails then are there any further options for you?

If you lose a case in QCAT you have rights of appeal to court, but the reality is for most of us buying second-hand cars, we don't have the thousands of dollars it would take to progress matters to the District, Supreme, or Magistrate's Court, depending on where it needs to go.

If people need advice when they're going through this process, where can they go to?

I always recommend our first port of call should be the Legal Aid Call Centre whose number is 1300 65 11 88 because we have some excellent client information officers there who can direct you to either the appropriate section in Legal Aid, which will often be the consumer protection unit, or a Community Legal Centre.

Caroline: While many of us understand domestic violence isn't always physical, people can often find it difficult to recognise and understand the more subtle forms of DV. Legal Aid Queensland's lawyers work every day with people who have experienced all forms of domestic violence. Today, we are chatting with two of our consumer law experts, Paul Holmes and Loretta Kreet, both senior lawyers in our Civil Justice Services, about one of the lesser understood forms of DV, financial abuse. Paul and Loretta, why don't you tell us about the areas you would normally cover as consumer advocates?

Paul: Okay. Thank you, Caroline. So, we're a part of the Consumer Protection Unit in Civil Justice Services. So, what that means is we help people having trouble with credit, debt, insurance products, and other products like that. So, what that means is we help people in trouble with mortgages, credit cards, car loans, personal loans, consumer leases, insurance products, and other small amount loan type products.

Loretta: There's even more, Paul. There are energy contracts, body corporate fees, council rates, and those pesky Buy Now Pay Later schemes or products.

Paul: Very true. Buy Now Pay Later though is a subject for another day, I think Loretta.

Caroline: And I'm assuming that would also include the general utilities as well.

Paul: Absolutely.

Caroline: So as consumer advocates in the civil law area, obviously there must be a bit of a crossover into the realms of family law and domestic violence.

Loretta: So, what generally happens is that people often don't want to talk about domestic violence. And so, they often come to Legal Aid and present with one problem, which might very well be that they have a debt issue. And [then] when you dig around a bit, you find that there are underlying issues. And one of those underlying issues might be domestic violence. That's right, isn't it Paul?

Paul: It is. And in some cases what we get are referrals directly from the family lawyers who've seen the DV and have picked up that there are debt issues associated with that. It [the referrals] could come to us in both ways.

Loretta: And that's very true. Yeah, or from the community, and in fact, as well.

Paul: Absolutely.

Caroline: So, what you're saying is financial control is a recognised form of abuse in the Family Law Act 1975.

Loretta: That's so true. It's all recognised both in the Family Law Act 1975 and under the state legislation as well. So, in the Family Law Act 1975 it singles out two areas where a person might be suffering from economic or financial abuse. And those two areas are where they... where the person unreasonably denies the family member their financial autonomy that he or she would otherwise have had, or unreasonably withholds financial support needed to meet family expenses. The state Act also refers to having people forced into signing for loans or signing guarantees. So, it's even broader and goes into more detail.

Paul: [In] a lot of ways though, the state Act unpacks a bit those definitions in the Family Law Act 1975. Because the Family Law Act 1975 definitions are very legalistic, let's be honest. And [it] talk[s] about financial autonomy and things most people don't understand. What people in community understand is being forced to take out a loan, or only being given $50 a week to spend and having to justify all of those expenses and things like that, and the state Act I think does a really good job of trying to explain that in a way that the community can better understand.

Loretta: It's one of the other things that I always think about is where the person may take the other person's goods and dispose of them or destroy them, or especially when there's loans in relation to those, or guarantees.

Paul: The classic [example] being driving the car away, [and] crashing it, knowing that the car loan is in the person experiencing the violence’s name, and knowing that the loan company can't come after very easily the person who's done the damage.

Caroline: Okay. So we're starting to get into the area of recognising what financial abuse is, and it can be really hard to recognise it, but there are obviously some warning signs as well, whether you're experiencing it, or whether you're watching it as a bystander. In your view, what should people be looking for?

Paul: I think the big one to start with is if you've had to give up passwords to your bank accounts. That's a big one because that's the first sign, I think, of somebody trying to restrict your ability to do anything financially. And when I say ability to do anything financially, [I mean] what they're seeking to do is make it really hard for you to leave the relationship. And if they know what you're spending because they've got access to your bank accounts then they can do their very best, and often be very successful, at making sure you don't have the financial capability to leave them.

Loretta: In our work, particularly because it's around people coming to us who have mortgages, car loans, or those sorts of things, the warning signs are often when people have left the relationships and the debts [are] left behind. We used to call it “sexually transmitted debt”, because that's exactly what it was. It was a phrase coined in the 90s. But the sort of things that we talk about and that are not so obvious are, like you said, restricting access to money so you only have a certain amount of money to go and do things, and it's very tightly controlled about how that money's spent.

Paul: And wrapped up in that is the idea is you've got to justify what you've spent the money on so they can track your spending.

Loretta: Mmm.

Paul: Which makes it really hard to do or take steps to escape a relationship that's gone bad. It's also very difficult, I guess, to have any money to leave if you're not able to go to work, for a variety of reasons. I've certainly seen examples where there’s... let's say there's been pretty close to continual pregnancy over a number of years and that sets up a relationship where the person experiencing the violence is either forever pregnant or looking after young children. And let's be honest, most people are very reluctant to leave young children at the best of times, let alone when there's a risk of the young child being exposed to that type of violence if they... particularly if they leave.

Loretta: Just recently, I heard about someone who had gone to the supermarket and had been asked to buy two things from the supermarket, and rang up their partner and said “There's not enough money in the bank account,” and the partner said to the person experiencing violence ”Well if you put back the thing back that you're purchasing, that's extra [then] you'll have enough money in the bank account to pay for this.” We were talking about something that costs two dollars. So, it wasn't like a whole lot of money.

Paul: So, we're not talking situations where we're dealing with hundreds or thousands of dollars.

Loretta: No, it can be very small amounts of money. And it can be... and in situations where it's not necessarily the case where the person's at home, this was the person that was working, so [they] should have really had access to their own money. It was combined income of the family’s.

Paul: But even in those situations, as you just highlighted, people who outwardly would appear to be in control actually have very little control in the relationship. And that's a really important thing to remember. Just because public-facing, they look like they have some financial control, the reality is in these relationships, they don't.

Paul: There's no one thing that highlights the control in this financial abuse scenario. It can be any one of a number of things, or it could be all of those things that are impacting that particular relationship and that person experiencing the violence.

Loretta: And that's why sometimes you have to do the digging — it's not sometimes obvious on the surface. Sometimes you just say, “What did you say? Is that really what happened?” I mean that was the case in that particular one about the spending. I was very taken aback by hearing that story.

Paul: But they're... that's in a way... they're the good scenarios because that's where somebody trusts you enough to say that information.

Loretta: Yes.

Paul: And that's a really big thing for people in the space — to be able to trust [you] enough to tell at least some of their story.

Caroline: Okay, so let's break this down to some pretty clear examples that you see on a daily basis. So, you know say a couple has a home loan or a car loan or say a personal loan even, what are some examples that you've seen around abuse with loans and debt?

Paul: Okay. So, the classic [example], I think, is joint mortgages.

Loretta: Absolutely, and it's a big one because often one party is very interested in staying in the home, because they might have family responsibilities – this is the only home that the children might have had. And they're very concerned that they maintain that residence for their children, but at the same time that they protect themselves from abuse that they might be under.

Paul: So, two classic scenarios. One is you've got the person experiencing the violence [who] stays in the home, and the other party in the relationship leaves. Often in that scenario the person experiencing the violence either hasn't been working or doesn't have enough income to service the mortgage by themselves. What that means is the other party leaving the relationship senses a way to keep control over the person experiencing the violence. And how do they do that?

Loretta: There might be a number of ways. So, there might have been an arrangement where the person who's left the home has said that they will pay their share of the mortgage and then they don't end up paying the mortgage. And so that puts an enormous amount of stress on the person that stays in the family home, because they think how are they going to be able to pay for this. And in other cases, there might have been an arrangement that they would pay in lieu of child support. So again, they might have entered into an informal arrangement thinking that would keep the other party happy, and they end up in a much worse position because they can't afford that payment on their own.

Paul: And this can even be contrary to existing family court orders.

Loretta: Absolutely. How does that person manage the abuse that's happened or the economic abuse, but also manages to get themselves into a situation where they can either keep that home for themselves or find somewhere else they can live.

Paul: And then the contrary scenario is the person experiencing the violence actually has to leave the house and the other party to the relationship stays. And the classic we see there, and I've heard this threat made a number of times, “I'm going to stay in the house and ruin you financially until the police come and remove me.’” That's the classic scenario there, isn't it?

Loretta: Absolutely, and it's very difficult to do something about that in the short term. Yeah, obviously in the long term, there are things that can be done, but it often means  the person who's coming to see us who's left the home and is saying, “How can I sell this home or how can I make sure he or she pays the mortgage?” It's a really difficult situation. And they’re often [already] struggling to rent.

Paul: And the reason is when you've got a joint mortgage, you're both responsible for the entirety of the loan. And the people experiencing the violence aren't in a position to pay the loan, because by leaving the relationship they're not only having to look at trying to pay the mortgage, they're looking at paying rent on top of that. It's just not possible for most people in that position.

Caroline: I’m assuming also if there are kids involved, they are also paying for the children's upkeep as well and running a household outside of that other property.

Loretta: Exactly.

Paul: Yeah, exactly.

Loretta: And this is a way of maintaining control in the relationship because the person that's left the home wants to ensure  they don't have any defaults on their credit report and also want to maintain the equity in that property. Because the longer the person stays in the property – the  co-borrower stays in the property – [and] the more the equity is stripped out of that property. And especially if they force the bank to go and take the legal action... of course, there are huge legal costs added.

Paul: And when we say, equity, Loretta, we're saying that's the amount of money you'll get after the mortgage gets paid out and the house is sold. So, what's left over after all the debt is paid associated with the house.

Loretta: And the reality is if people can sell their property themselves, they're much more likely to get a much better price than if the bank forecloses and sells that property.

Paul: When we’re talking foreclosure it's where the bank takes action to take the property from you and sells it themselves.

Loretta: I think foreclosure is a much better word, Paul. It encapsulates that principle.

Paul: It does for lawyers. But my experience of clients is, it's not a word that most of our clients have heard. They better understand the practical outcome, which is that they have to leave the house, and [understanding] the importance of finding alternative accommodation before the bailiff comes knocking on the door and physically takes you out of the house. Because there's nothing worse for a person than experiencing somebody removing you from what was your safe place

Loretta: But sometimes in those situations where the person who has...

Paul: …the person who's remained in the home after the person experiencing the violence has left...

Loretta: That person, may often not realise that this may be the ultimate thing that happens to them, that in fact, they are evicted. But they are so into controlling the other party that they're willing to put themselves through that as well.

Paul: Yes.

Caroline: Moving on, people obviously have other loans and financial commitments as well. What are some of the examples of financial control there?

Paul: I think guarantees is another big one.

Loretta: Mmm.

Paul: We will often see people who are in a relationship and one party in the relationship already has bad credit and the only way they are able to go and get — it's usually car loans, or all horribly to me who doesn't like motorbikes — we see an awful lot of females who experience violence guaranteeing motorbike loans.

Loretta: In fact, the people think that they’re guaranteeing the motorbike loans, but they're actually either the main borrower or the joint borrowers, or the whole loan is in their name. And like you said, they don't even ride a motorbike.

Paul: Your point there highlights the control though. And that's the idea that they're pressured into coming along to the local dealership and signing whatever documents are put in front of them, not given usually by the person they’re in the relationship with the opportunity to even read them. They’re just told “Sign here or you'll get it when we get back to the house.” And so, they sign up not understanding what it is they've even signed up to. And down the track when they’re finally able to leave the relationship, they find out they're either heavily indebted under the loan, as you point out, or have guaranteed the loan. And the person they've escaped from knows that full well and will often not pay, knowing that that's a way to ultimately ruin the person who’s left [the relationship’s] credit report.

Loretta: And especially because the good, in this case a motorbike, is something that's easily hidden...

Paul: Absolutely.

Loretta: If the lender can't find the motorbike, they might be able to find the other person, but can't find the motorbike...

Paul: And the thing about the guarantee idea is it can follow you for a number of years because it's only once the creditor realises they can't recover the full amount of the money from the borrower, that they then go after the guarantor (or the person who’s given the guarantee). And what that means is it's possible that it might be four or five years after you've left the relationship, you suddenly get a phone call from a lender saying “pay up”, because the person you gave the guarantee for hasn't paid. And that sort of trauma that long after you've managed to leave a relationship can have a really big impact on people's ability to move on and recover.

Loretta: Lease goods are a pet hate of mine because they have really serious effects on the person escaping a domestic violence situation. And that's because with lease goods they’re often easy to dispose of.

Caroline: What type of lease goods are we talking about?

Loretta: Oh, we could be talking about TVs, phones, furniture, white goods.

Caroline: White goods?

Loretta: White goods. So, there's a number of issues. One is when the person leaves a relationship (the person experiencing violence) they leave the goods behind — they have to go. So, they have no more access to the goods. The [other] person might have destroyed those goods. And because they’re security for the loan or for the lease, if they can't come up with those goods, they often  have been threatened in the past with the police, with criminal charges. And that is particularly serious, because we've seen people pay for goods that they no longer have, because they've left a domestic violence situation, or the other party has destroyed those goods. And they could be paying for those goods for years and years and years after those goods have been long gone.

Paul: And that's because under some of these contracts, there's really large, what are called termination fees, for ending the contract, which are often replacing the full value of a new good. Because that's the loss that the consumer lease company has suffered. They no longer have the good to re-rent out, or re-lease out. But those contractual terms don't really reflect or adapt themselves to people experiencing family violence very well at all. Do they?

Loretta: And these are, I think, particularly used to exercise financial control. Because the other party often knows that if the person doesn't pay then the consequences might be a complaint to the police, or may have more serious consequences than other loans — where there's no security attached to it [and] where you might have other options.

Paul: Or the other variation on that, is rather than the police, the idea that you can get a default listed on somebody's credit report [which] has the practical effect often of... we've seen clients saying, “I now can't afford to leave the relationship because I can't borrow enough money to actually escape.” And if you've got a default on your credit report, the reality is you're not being able to borrow from anybody.

I guess the other thing we should explore, that happens a fair bit more in this space, is toll debts. And I think it's really important to cover that as well. Because the consequence of a toll debt going wrong and ending up with SPER, or the State Penalties and Enforcement Register, is very serious. And so, the classic scenario there is, the toll account [which] may be in the person experiencing the violence’s name. The car may still well be in the other person's name in the relationship. And they may well drive deliberately through the tolls trying to rack that toll debt up, knowing the person can't pay it, knowing that when they can't pay it, administrative fees get added to the debt, which means the debt becomes very large. If the debt remains unpaid, the debt could end up with SPER. And one of the difficult consequences there is potentially your license can be suspended. Now, I should add the tolling companies are getting a lot better in this space at dealing with that scenario. And they have financial hardship [telephone] lines where people in that position can ring and seek help. But you've got to know to go there. And I guess that's why we're talking today, is because the importance of people dealing with any of these debts as early as possible is really high. Because the earlier you approach them, the easier it is to work your way through them.

Caroline: I guess also if you are experiencing domestic violence and your ex has taken the car and they're running up and down the tollway, are you able to even call the toll people and say “Hey, listen, this is my rego, or this is the rego?”

Paul: ...shut the account off.

Caroline: Yeah.

Paul: Absolutely, you can. Assuming the toll account is in your name...

Caroline: Well, that's the problem. And I suppose you only find out later, don't you... in that case when you start getting the bills accruing?

Loretta: I suppose if the car’s still registered in your name, the problem is the tolls are still being raised against the person in whose name the car is. So, this is a really good way that somebody can exercise financial control over another person. And that's actually quite complex in terms of wiggling yourself out of that. So, yes, you can cancel your toll account. But if the car's still in your name... you need legal advice, you know.

Paul: Absolutely, the other thing to be really careful of, about tolling accounts, is if the person who you've left has access to the tolling account, potentially they can track where you've moved to, and that's another really important thing to be aware of in this space.

Loretta: And if you've left and you haven't updated your address details because you've left suddenly and the last thing you'd be thinking about is tolls — that you think are only three dollars or whatever — you know, one toll. And you don't tell the tolling company that you've moved then those debts can add up very quickly without you even knowing about it.

Paul: And worse still, the account gets to the address where you've left.

Loretta: That's the problem... where the person who can...

Paul: … now be aware of where you've been driving...

Loretta: ...or if they're the ones doing the driving, can just not pass on the information that...

Paul: Absolutely.

Caroline: So, what about things like Centrelink debts as well?

Loretta: Centrelink debts can be challenged. But we just suggest that people get legal advice about that. If Centrelink raises a debt against them, get some legal advice. And in fact, this is always an important thing. I know we're going to talk about where you can go for help, but I always think get help early and you know, make sure to ring Legal Aid. It's a really good resource. It really gives you lots of information about what you can do and where you can go. And I know we're going to talk about that a bit later, but I just thought in relation to Centrelink debt, it's such an important message.

Caroline: We do have specialists in that area, don’t we?

Loretta: Absolutely.

Paul: Yes, we do.

Caroline: Yeah, and so when it comes to people's financial health, how about telling us about some of the other forms you've seen, like say restricting access to money, just in general?

Paul: So this goes back to the idea I was talking about earlier around passwords often. And either you have no accounts in the person’s (experiencing the violence) name, or if they do have an account, they're forced to give up the password, so that the person controlling the relationship has access to everything they're doing in a financial sense. And they often end up picking at every purchase that the person experiencing the violence makes, with the idea of making them think they're not able to handle their own finances. And so [they] gradually give up their control to the person who ends up controlling the relationship. And once that happens — when you've got no access to money — you can't go anywhere, or it's extremely hard to go anywhere. And the other ways they do that, and this is one we started to talk about earlier, is credit reports. That's a really big one Loretta, isn't it?

Loretta: Yes, and I mean this would be a generalisation across the community, but for most people their credit report is very important. They do not want a default on their credit report. And therefore even if there's an arrangement that the other party pay for an account, if the debt collector or the lender says [to] the party escaping family violence that if they don't pay, they're going to get a default on their credit report. Guess what? They pay. And if the other party knows that, they're going to use that, in terms of controlling them.

Paul: And that happens not just across loans. That also happens across telecommunications contracts for phones. Happens across utilities as well. It's not just in loan contracts that behavior happens. Does it?

Loretta: Absolutely. And because to get access to a credit report, you have to belong to an ombudsman scheme. It's really important to go and ask that creditor for help early on. If you can get in early on (before the default is listed), you're much more likely to be able to negotiate with the creditor as to what might be a solution to the issue. But it's really important to get in early on.

Paul: You mentioned ombudsman. For people who haven’t experienced an ombudsman before, what are we talking about?

Loretta: It's really a complaints body. So, the general thing in our area, particularly with loans and utilities and energy contracts, those sorts of things, everybody.... there is a complaints body that you can go to. We used to always call them ombudsman schemes, but now there's. there's one big one for financial services - that's the Australian Financial Complaints Authority.

Paul: And there's one for telcos.

Loretta: And there's one for energy contracts as well.

Paul: But I guess the question is, why would our clients bother using them?

Loretta: Well because they might be able to help them. If their creditor doesn't help them, they can go there with their complaint.

Caroline: So, let's take it back to basics. If you are struggling to pay your bill because your ex has stopped helping you financially, or that bill’s just marching on, because you've had to leave that house. And you contact that provider and you explain that to them, are they by law expected to work through some hardship policy with you or what's the process there?

Loretta: They are expected to work through a hardship policy with you, in financial services, in relation to telecommunications accounts, and in relation to energy accounts. And if they don't work with you then you have the right to go to the complaint service and ask the complaint service to work out a workable solution for you. I did want to mention this because sometimes people come to us, particularly in the mortgage space, and say “Well I'm in hardship. I've had a separation. I'm a victim of domestic or family violence, and I should never have to pay this loan back — my situation isn't going to change.” It doesn't mean that you get to walk away from the loans because you're in hardship. It just means that, if it's possible, and you can pay the account in the long term, they should work with you to work a solution. But it's not about release of loans.

Paul: And the solution can involve giving you time to sell the asset or the house yourself. Can't it?

Loretta: Definitely.

Paul: Because that solution involves you paying the loan.

Loretta: Yes.

Paul: The other thing worth saying quickly about complaints bodies, that's really important for our audience, is that they’re free, even if you lose. So, there's no risk, like could happen sometimes in family court proceedings, that you have your complaint heard and you end up having to pay costs. It doesn't happen with any of these complaint bodies. And that's really important, I think.

Caroline: And so still talking houses and say, you’re  not in a mortgage situation, but you’re both renting, there's always the risk of being blacklisted. Isn't there?

Loretta: If you don't do the right thing with your rental agreements — yes, there is. And the biggest listing company in Australia is a private company called TICA. And that's a database real estate agents can access about tenants. So, tenants can be blacklisted for a number of reasons. And the problem is that often where there's domestic violence, there's more likely to be issues where there's termination for poor behaviour. So, tenants can be blacklisted for a number of reasons. And the problem is that often where there's domestic violence, there's more likely to be issues where there's termination for poor behaviour. So, for example, if there's a lot of shouting or damage to the property... 

Paul: Damage to the property is a big one. 

Loretta: ...by one of the joint tenants. And that makes it nearly impossible, even if the person experiencing violence [is the one] who may not have damaged the property, to actually get a tenancy. 

Caroline: And you also hear about people who've had to flee the house, but the house is in their name on the rent. And yet the house is still being lived in, and they're still being charged rent, but they can't afford to pay for it.  

Paul: Yeah and terminating the lease in that scenario can often prove very difficult for somebody who's fled the relationship, having experienced violence. The important thing is to communicate with your real estate as early as you possibly can, if you find yourself in this position. And try and head off the prospect of being listed. Because in our experience, once you are listed on the TICA database, it can prove very difficult to get yourself back off it. 

Caroline: Because there is a period where you're blacklisted for, isn't there?  

Loretta: Three years... But that's a long time to be on that, [and] to not be able to find rental accommodation. 

Caroline: Particularly if you're in a smaller town too, where the accommodation’s difficult to find to start with. 

Paul: And let's be honest in smaller towns, those sorts of experiences arguably become more easily known than they do in a larger city.  

Loretta: And the complaints mechanism for TICA listings are not that good. So, you don't have the access to a complaints body like AFCA. You only have one avenue which is through the Privacy Commissioner, which can be a very difficult process. 

Paul: And you end up there in the Queensland Civil and Administrative tribunal. Don't you? 

Loretta: For some issues, yes. 

Caroline: And I suppose the best place, really, if you need advice for this is the Tenants Queensland - QSTARS. 

Paul: Yeah, completely agree there. They're the experts in this space.  

Caroline: And so looking at telecommunication companies, I know we've looked at this briefly, that also poses a problem for people wanting to deal with their accounts in future too, if they've got outstanding debts there? 

Loretta: Unlike some of the lenders and creditors where there's proper domestic violence policies (even at the bank level), telephone companies don't generally have those policies. And we have seen people have five [or] six mobile phones that have been given to one of the parties. And they've been sold — either hawked by the other party or you know, pawned at a pawnbroker [and] sold, or they've — when they've left the relationship obviously — they've taken the phone with them. But the contract is still payable by the other party and they can't get the phone back. So often what's happened in the past, is sometimes telephone companies have suggested it will think about releasing or waving that debt, but we want the phone back. And so, it's really not a solution — a workable solution. Or, they sell the phone or hawk it, which breaches their contract. And again, that's one of the things that might mean that they could make a complaint to police.  

Paul: So, let's just separate that out a bit Loretta. 

Loretta: Oh good. Because I like to talk a bit!  

Paul: Yes. So, there's a couple of scenarios in the telco space. You've talked a little bit there about them hawking the phone. Yes, the issue with them hawking the phone comes up when they're leasing the phone, because when they're leasing the phone, they don't actually own it.  

Loretta: Yes. 

Paul: And so, by selling it, they're arguably dealing with that phone in a way they're not entitled to, because they don't own it. It's a different scenario if they're buying the phone as part of the contract.  

Loretta: Yes, but often in [the first instance], when it's under contract, they're not allowed to sell the phone either, because it's security for that contract.  

Paul: Yeah,  but what I'm saying is that's a different discussion to it's a rental contract.  

Loretta: Absolutely. Yes.  

Paul: So if it's a sale contract the thing that goes wrong there is it's often hard to get a resolution that doesn't involve the person experiencing the violence having to pay some, or all of the cost of the phone.  

Loretta: Yes. Or the other party may destroy that phone as well. So, they either take it, or destroy it. Those sorts of issues. 

Paul: Because that's just another way of exerting control. 

Loretta: And one of the things that they often do, is that when people go in, and they're asked to be the reference and they sign for these contracts, is that they're not [the contract holder] the other party is. So, they're the ones providing their email address. Obviously, they've got the phone, so it's their phone number that the telephone company is calling. And they often have authorisation on the account. So, the things that I've particularly seen in my practice is that the person experiencing the domestic violence only is aware of what the problem is, once the contract’s already been cancelled, and there's been a huge bill. Now that bill might be, you know, $1,500. If you're on a pension that might as well be $15,000. So, it's a really serious problem  for the person who's fled that domestic violence situation. 

Caroline: So let's look now at not just organisations failing to look after people who are experiencing domestic violence, but potentially, creating more problems for them, particularly when it comes to their privacy. Tell us about some of the issues you've seen there? 

Paul: Well, I guess the starting point is for people experiencing the violence, they can get confused by the fact that different companies can have very different approaches to how they deal with people experiencing violence, and what sort of information they want. And that can create confusion. You can have companies who just accept the person's word — that they're in the violence. And companies right at the other end of the spectrum, who want various Federal Court [of Australia] orders showing that there's evidence of the violence. And having to rehash that experience in trying to get a real resolution can be really confronting. Second issue is a privacy one, particularly on joint accounts. And companies are getting much better at this, I think it's fair to say, but in the past we have seen examples where inadvertently a person experiencing violence’s new address gets sent out on a letter that has [the] person controlling the relationship’s address and then the person experiencing the violence address, and both sets of addresses are on both letters sent out to both parties.  

Caroline: Ouch. 

Paul: And companies, particularly the banks, are doing a lot of work to try and make sure this doesn't ever happen again. And that's to their credit. But in the past, it has happened. And it has a really detrimental effect on people who are trying to leave a relationship like that.  

Loretta: I must say it's a tricky thing for banks and lenders to negotiate, because they don't know when they're dealing with someone, particularly in a couple situation, where there is domestic violence. So sometimes if you're in a relationship, you want your partner to have access to that information, or you don't like to have unnecessary roadblocks put in the way of obtaining the information for your joint accounts.  

Paul: What I would say there though is that's a very different scenario, when there's clearly two separate addresses.  

Loretta: They've really tried to work their way through that, so that they don't put unnecessary roadblocks, where one party might be the person that has, not control, but it has, you know, that's the party in the relationship that they've determined will deal with the finances. Or where there is financial control and they have to make sure that they're not disclosing information to one party — that the other party shouldn't know about. So, one of the other things that we saw is often one party might be asking for financial hardship. They, you know, the person experiencing the violence might have remained in the home [and] they've gone to the bank and said ‘look, I need some hardship assistance’ and they've said you have to speak to your ex-partner. Which... 

Paul: ... which the law doesn't support that view.  

Loretta: No. 

Paul: The law is really clear. To get financial hardship, you don't need the ‘okay’ of the other person who's jointly on the loan. 

Caroline: And I believe the Australian Financial Complaints Authority has laid that out pretty clearly. Haven’t they? 

Loretta: There is actually a guide that you can access. And that website is a very good website to access if you need help around loans and you're experiencing family violence. 

Caroline: We will make sure we provide a link to that along with this recording. So, we've  spent a lot of time discussing a range of situations people have found themselves in because of domestic and family violence and financial control. Lots of time spent talking about their problems. Why don't we have a bit of a chat about solutions? If people are having trouble dealing with their creditors, what are some tips that you might have, or do you have a checklist that they can use for dealing with creditors? 

Paul: I think the big one and the really important one is, seek help as early as you possibly can. And by seeking help, it can be enough to say to them, “I can't pay.” It doesn't need to be any more complicated than that, because these organisations now have processes that should be able to deal with somebody going “I can't pay.” And if they don't, you're able to take that to higher levels within the bank or the company and then on to the complaints bodies, like the Australian Financial Complaints Authority we were talking about. There are mechanisms there to protect you, but you've got to feel comfortable accessing them. And what we're saying is it's okay to say, “I need help.”  

Loretta: I also like to add it's okay to ring somebody like Legal Aid. Even if you're going to the creditor, sometimes you don't know what options are available. There might be an option offered to you by the creditor, which you're not entirely comfortable with, or you think you want something better or something different if you have the advice as to what might be possible, you're much better able to have that conversation with the creditors. Get advice, get legal advice early on. All financial counselling advice is a good thing too, but get it as early as you can, because you're much more able to make the choices that you need to make. And the earlier on that you make the call, the more options you have.   

Caroline: If somebody's making a call to whoever answers that telephone call, and they feel that they're just not being listened to, and they [can] feel pretty powerless, don't they? I mean, what can they do in that situation to perhaps escalate the need to listen to the reason they can't pay? 

Paul: The really good news in this space is companies on the whole, have set up specialist units within those companies for dealing with issues associated with people experiencing family violence and the debts that come with that. So, in our experience, if you're not referred to those more specialist people, feel free to ask. If you're not comfortable with the initial experience at the call centre, I'd ask to speak to a manager. And if you're saying, “I'm experiencing family violence”, that should be enough to trigger the manager to deal with it appropriately. And if they don't, then you'd bump it up to the next level, which is what's called the ‘internal dispute resolution area’ of the company. And if they don't deal with it successfully, that's why the complaint bodies like AFCA, the Telecommunications Ombudsman, the Energy and Water Ombudsman exist — to be that circuit breaker when the communication between people experiencing violence and the company is not working as well as it should. Having said that, my experience over the past few years is [that] companies are now actually getting quite good at dealing with people experiencing family violence and all of the issues that come with that. And that's to their credit. Are they perfect? By no means. But are they significantly better than they used to be? Absolutely. And I think that's something that's really important for people to hear, because there is a lot of negative press about particularly financial institutions around the place at the moment. On this issue, I think they've done a good job. And in my experience, they're trying to get better at dealing with these issues.  

Loretta: I think where the problem mostly is... that we've seen on a practical basis, is when people go into branches or the little shops. They're not so good at dealing with these complaints. And I mean that's unfortunate because they [these people] can often be the most vulnerable in the community. Generally, if you ring these companies, their processes on the phone are a lot better. I think if there’s an area that companies have to work on, it's that outward-facing service, like the little telco shops. 

Paul: That's a fair call, Loretta. 

Caroline: So, you've... we've... had a chat about not being afraid to ask for help. I think that's such an important step that people can take, and particularly with financial control issues with a number of organisations, where else can people get help?  

Loretta: I always like to say Legal Aid Queensland is the best place for people who live in Queensland to go and call. Or if you live in one of the other states, to call that Legal Aid Commission for advice as a first port of call.  

Paul: So what number is that Loretta? That's the key bit, isn’t it? 

Loretta: In Legal Aid in Queensland it’s 1300 65 11 88. But also there are community legal centres, both in Queensland and across the country. There are some specialist community legal centres that have been set up in the financial services area, and they're in New South Wales and Victoria. The other number that people can call, particularly if they have financial debts, is the James Bond number. 

Paul: Who is the James Bond number?  

Loretta: It’s financial counsellors across Australia. And you just have to ring one number. It's 1800 007 007.  

Paul: And the good bit about that number is if you're calling from within Queensland, it's answered by financial counsellors in Queensland. If you're calling within New South Wales, it's answered by financial counsellors in New South Wales.  

Loretta: That's exactly right. And you might want to go and check out some Money Smart stuff. And that's at the Money Smart website set up by the Australian Securities and Investment Commission. And I think we'll put something...  

Caroline: We’ll provide a link for that on the page. 

Paul: And don't forget Legal Aid has a lot of very good resources on its own website,  around family law, family violence and debts and family violence. So that's another good place to call. 

Caroline: And for community workers who are perhaps supporting a lot of people who find themselves in this situation, who's best for them to call?  

Loretta: Well again, Legal Aids are a very good resource. And if you're in Queensland, it's that 1300 65 11 88. Or you can also look at the AFCA website and they have a guide. They have some special guides about family violence and how lenders should deal with family violence issues.  

Paul: Why they're important is that AFCA uses them in making their decisions. So, they put them out there to say to industry and people experiencing family violence, if you bring a complaint to us and it looks a bit like this, here's how we're likely to resolve it. And the good bit about that is, it draws people towards trying to make a resolution along those lines without you having to go to AFCA. And that's really important. Because one of the things that tires people out in this space is having to tell their story again and again, and again. And so, anything that avoids that is just so important.  

Caroline: So, it could be said the examples we've discussed today are just a small part of a very, very large list of many behaviors that fall into the scope of domestic violence. Domestic violence is common and very harmful and happens in all sections of the community across all cultures. It's one of those things we say is across all borders. And being abused isn't a normal part of a healthy relationship. And the law acknowledges living free from violence is both a human right and a fundamental social value. So if you, or someone you know, is experiencing domestic violence, it's important to know what legal, financial and housing options are available to you, and that you can rely on someone to support you in the choices you do make. And finally, if you, or someone you know, is experiencing domestic violence, you're not alone, and domestic and family services can help you work out a plan to leave early. So, if you need support at any time, day or night, you can contact DV Connect on 1800 811 811. Or during work hours, you can get in touch with Legal Aid Queensland, a family relationship centre or the family relationship advice line. And Legal Aid Queensland's number yet again is 1300 65 11 88. And don't forget if you or your children are at immediate risk of harm, please call the police, don't muck around. So, in an emergency call triple zero. And I'd just like to thank Paul and Loretta very much for all your time in the chat. And we'll pop some of those handy links for everybody on the page.

Paul: Thank you.

Loretta: Thanks Caroline.

Caroline: Thank you.

Useful links

If you are in immediate danger call the police on 000.

For problems with:

• Telephone and internet bills - Telecommunications Industry Ombudsman - www.tio.com.au
• Traffic fines, tolls, council rates or fines - Queensland Ombudsman - www.ombudsman.qld.gov.au
• Mortgages, loans and debts, insurance, or general banking - Australian Financial Complaints Authority - www.afca.org.au
• Water and energy bills - Energy and Water Ombudsman - www.ewoq.com.au
• Rent - Tenants Queensland - www.tenantsqld.org.au

For legal and financial information and advice:

• DV Connect - www.dvconnect.org - 1800 811 811
• Women's Legal Service - www.wlsq.org.au - (07) 3392 0644
• Community Legal Centres Queensland - www.communitylegalqld.org.au - (07) 3392 0092
• Financial Councillors - www.ndh.org.au - 1800 007 007
• Money Smart - www.moneysmart.gov.au - 1300 300 630