Who Gets The Dog? – Part 1

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Who Gets the Dog?

Have you ever wondered what would happen to your pet in the event that you and your partner separate? Have you gone as far as actually discussing who your pets would live with, and would it be a shared-time arrangement?

Approximately 69% of Australian households own pets, with over $33 billion spent on pet products and services in 2022 and an average of $3,218 spent per dog per year. It is therefore not surprising that “what happens to my dog?” is one of the most common questions we get asked.

How are Pets Treated in Family Law Disputes?

When determining parenting arrangements for children, the main consideration of the Court is “what is in their best interests?”. Unfortunately, the same approach does not apply to your fur babies.

The Family Law Act 1975 (Cth) (“FLA”) provides no specific guidance to the treatment of pets in family law proceedings. Therefore, pets are treated as property and form the overall asset pool that can be divided, just like bank accounts, houses, and cars. This usually comes as a surprise to people who have emotional attachments to their pets, as opposed to their other personal items.

Further, pets are not generally valued like other possessions such as cars, boats and business interests, unless the pet is used to derive an income, such as in racing, breeding or in competitions. If pets are racing or breeding animals, they are treated as a business asset.

The position that pets are property was affirmed in the matter of Downey & Beale [2017] FCCA 316 where a couple had agreed on every aspect of their family law dispute, except for the ongoing ownership of their dog. The critical evidence was such that whilst the couple was dating but before they lived together, the husband purchased the dog for the wife as a gift and the dog lived with the wife at her parents’ house. The Court ruled in favour of the wife, declaring that she was the owner of the dog as it was purchased for her as a gift. This case shows the approach that the Court will take, in identifying pets as property that can be transferred, gifted and sold, and not as members of the family.

How can Southern Waters Legal Help?

Southern Waters Legal can help in the event you require assistance with your pet custody matter or your family law matter generally. Our team of Solicitors can assist in negotiation, mediation, and proceeding to Court if required. We understand that pets are more than simply “property”, they are your family.

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Frequent Flyer Points and Divorce: Who Gets What?

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When people think of addressing a property settlement in light of their separation, they often think of addressing items such as the family home, cars, bank accounts and the like. However, a less commonly considered asset that can be divided as part of a family law matter are frequent flyer points.

To the surprise of many, notwithstanding the fact that frequent flyer points do not necessarily hold a dollar-for-dollar value, they can still be considered to be an asset available for distribution following a separation.

At the outset, it is firstly important to research whether your specific frequent flyer airline allows flyers the ability to transfer points to another person. Airlines will generally stipulate in their terms and conditions whether points are able to be transferred across from one account to another, and whether there is any cap as to the number of points that can be transferred.

One reason that it can be a more difficult task to address frequent flyer points within a property settlement, is due to the fact that valuing the points for the purposes of a balance sheet can be quite difficult. It is not often that frequent flyer points have a set dollar-per-point conversion value and as such, parties are often left with the difficult task of trying to prove or evidence what they assert the estimated cash value of their frequent flyer points are.

If the parties or one party only holds a nominal amount of frequent flyer points, it might not be beneficial to include such points in the pool of assets available for division. However, if a significant number of frequent flyer points are held, it certainly may be worth trying to ascertain what their monetary value might be.

Once it is ascertained what the frequent flyer points may be worth for the purposes of the balance sheet, parties are able to negotiate their property settlement bearing in mind that such points form part of the asset pool and it may be appropriate for a portion, if not all of the frequent flyer points be transferred to the other party. Otherwise, in the event that one party seeks to retain the entirety of the frequent flyer points that they may have held in their sole name prior to separation, an adjustment may need to be made with respect to the division of the remainder of the pool of assets to the other party, to account for that person retaining all of the frequent flyer points.

Should you require any assistance in your family law matter, please do not hesitate to contact us on (02) 9523 5535. We are more than happy to help, and our extensive experience in family law matters enables us to provide a high quality service designed for your needs.

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Navigating Divorce: Five Handy Tips to co-parenting post-separation

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It’s possibly one of the most difficult aspects of a separation: co-parenting with your not-so-significant other. As a divorced mother of four-year-old twins, I am no stranger to co-parenting (or attempts at it). Here are some tips collated from my own experience as well as from my family law clients who are navigating the same:

1. Remember: it’s not about you

Often so much has happened between you and your ex-partner at the point of separation, and afterwards, that it is difficult to imagine your children having a positive relationship with that person. Their actions may be unforgiveable for you. But unless there are significant issues of risk and a threat to your child’s safety, very often co-parenting is about putting your issues with the other parent aside and remembering: Parenting is not about you; it is about your children. You are both their parents, and they love you both, and want to be loved and cared for by each of you.

Try to compartmentalise what has happened between you and your ex-partner, and any negative feelings you may have towards them. Instead, focus on the primary aim of co-parenting, namely, to enable your children to have a positive and blossoming relationship with both of their parents, whom they love very much. Children are often at the centre of their parent’s wrath and research shows that exposing children to conflict can have negative effects on their mental health and development.

2. Learn the art of compromise

All separated parents experience this: “sorry, I can’t do this weekend because of X,Y,Z, can I change my weekend with the kids to next weekend?” Cue red-faced me, having already planned my child-free weekend, now having to change all my plans and swallowing a response like “no, too bad”.

Remember, compromise can be your friend. In a months’ time when YOU are the one who has that event or appointment and you need to swap days or you want to spend a specific day with the children that happens to be on the other parent’s time, you will need the other parent on your side.

3. Have clear and consistent arrangements in place where possible

This is where we come in. Children thrive on clear and consistent parenting arrangements; they know what’s happening when, and Mum and Dad aren’t fighting at the school gate about who is going to take them home. There’s often a period where that’s not possible; perhaps you’ve just separated and you are trialling what works between you. That’s ok so long as when you find what works, you draft a clear and thorough arrangement that you both understand. This can be in the form of a parenting plan, or parenting Orders sealed by the Court. The key is to be detailed: detail what will happen with changeovers, how will your arrangements re-start after school holidays, have some fall-back arrangements if you are unable to agree. It is always better to be proactive than reactive.

When you both have a written document to work off, you don’t need as much back and forth between you, and it can reduce snarky arguments about who has the children when or what time pick up is.

4. Try to be open and transparent in your communication

This is really important. If you don’t communicate when school events occur, what day is sports day, when a child has a fever or didn’t go to school today because they had a stomach bug, co-parenting quite simply will not work. The best way to communicate is freely and without conflict, but that is not always possible. Many of our clients are assisted by a parenting App such as MyFamily Wizard. This has a communication function and a calendar function where you can input your respective times with the children and any other significant dates. Communicating openly and transparently enables a smoother co-parenting arrangement and can reduce conflict.

5. Don’t micromanage: try to Let It Go

This one is HARD. My ex has a habit of giving the children lollies in the morning. It gets me every time. But in the grand scheme of things, a red frog is not going to de-rail their health or development, so unless there are real issues of risk I often need to tell myself to Let. It. Go.  (yes, I just referenced Frozen: four year old kids, remember).

If you allow yourself to get hung up on what the children are eating or doing with the other parent, or the other parent being 15 minutes late bringing the children home, you risk creating a breeding ground of mistrust and an unhealthy power dynamic, neither being good for an amicable co-parenting relationship. You and your ex may have different parenting styles; you also will be now leading different lives. You may well not agree on whether lollies can be given in the a.m. Equally, they may not agree on you allowing the children to eat on the lounge (guilty). But these are not issues of risk. Arguing over them can throw compromise out the window (see Tip 2), but more importantly, this can create conflict that the children will often pick up on.

Finally, go easy on yourself!

Separation is a traumatic experience, made all the more difficult when children are involved. Co-parenting is far from easy no matter how amicable the situation. Go easy on yourself. Seek help when you need it. It is hard, but trust me, it does get better.

If you need legal advice on parenting, property or divorce matters upon separation, please do not hesitate to contact us on 95 235 535. We are more than happy to help, and our extensive experience in family law matters enables us to provide a high quality service designed for your needs.

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Choosing A Family Lawyer

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Choosing a Family Lawyer is a crucial decision, here are 5 things to consider:

1. Expertise

Ensure your lawyer specialises in Family Law. They should be familiar with the complexities and nuances of this field. Seeking the assistance of an accredited specialist in the field will ensure that you have someone with specialised knowledge.

2. Communication

The lawyer should be able to explain legal jargon in plain English and keep you updated on your case. The law is complex and a good lawyer will explain it in a way that you are not overwhelmed or lost in the process

3. Comfort

You should feel at ease discussing personal matters with your lawyer. Trust and comfort are key. It is not uncommon for us to meet clients who “just did not feel right” with their initial lawyer or who felt misunderstood. It is important to find the right fit when that person will be advocating for you.

4. Cost

Understanding the fees and ensuring there is transparency around them is really important in making any decision about who your lawyer will be.

5. Reputation

Check their track records and reviews. A good reputation in the legal community is a positive sign. It will also give you some comfort that others have been assisted by this individual.

We have a team of 7 lawyers at Southern Waters Legal who all practice solely in Family Law, 2 of those lawyers are senior accredited specialists in this area. Please do not hesitate to contact us should you require any assistance in relation to your family law matter, including an initial free 15 minute consultation.

Call us on 02 9523 5535 to have a confidential discussion, or email us at info@southernwaters.com.au to organise a call back at a time that is suitable for you.

 

 

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Capital Gains Tax and Family Law

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When some couples separate and enter into a final property settlement, they may have to consider any potential Capital Gains Tax (CGT) implications. It is really important to ensure that when negotiating and formalising a property settlement with your former partner you are aware of any potential CGT issues and obtain the relevant advice in relation to these issues.

What is CGT?

CGT is a federal tax that is payable on the profit of the “capital gain” that a person makes on an asset, generally by virtue of the increase in the value of the asset during the time in which it was held. For example, common instances in family law where CGT may be triggered are in relation to the sale of an investment property, the sale of shares and the sale of cryptocurrency.

If a couple purchases a property early on in their relationship which is ultimately utilised as an investment property and later, the couple agrees as part of their final property settlement to sell the investment property, if there has been an increase in the value of the property since it was purchased, this would trigger a CGT liability. Alternatively, if a couple agrees as part of their final property settlement for one of the parties to retain an investment property, they may be eligible for a CGT rollover.

CGT Rollover

As indicated above, a common scenario dealt with in family law is a situation in which a couple agrees for one party to retain an asset, such as an investment property or shares. If an asset is transferred from one party to the other in accordance with Orders sealed by the Court or a Binding Financial Agreement, such transfer will usually qualify for a CGT rollover.

In short, this means that a CGT liability is not triggered at this time upon the transfer of the asset, however, if and when the person who is retaining the asset ultimately sells the asset at some point in the future, only then will the CGT liability be triggered. In this situation, CGT will be calculated as though the person who had retained the asset owned it from the time that it was originally acquired.

Importantly, this CGT rollover will not occur in the absence of sealed Court Orders or a Binding Financial Agreement and as such, if an agreement has been reached for one party to retain an asset such as this, the agreement must be documented in the appropriate way to be eligible for the CGT rollover.

Former Matrimonial Home

There are some assets that are exempt from CGT regardless of whether it is sold or transferred as part of a final property settlement. One example of this is the former matrimonial home in which a couple lived. However, the exception to this exemption is if there was a period of time in which the former matrimonial home was not utilised as the main residence of the parties, such as if the property was rented out as an investment property for a period of time. In this circumstance, the CGT liability will apply only to the period of time in which the property was not utilised as the primary place of residence.

If you require assistance with your family law matter, please do not hesitate to contact a member of our Family Law Team.

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Child Support, what is it and how does it work?

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One very important consideration in a family law matter in which a couple has children is what child support arrangements are going to be put in place in relation to the costs of the children moving forward. There are 3 main ways to document a child support agreement, set out as follows:

  1. an ad hoc arrangement agreed between the parties;
  2. a Child Support Assessment issued by the Child Support Agency; and/or
  3. a Binding Child Support Agreement.
Ad hoc agreement

Some parties are able to reach an agreement in relation to child support amongst themselves, which may involve one party paying the other party a set amount per week. Often, an ad hoc agreement is a verbal agreement between the parties and not formally documented in any way.

Whilst ad hoc arrangements are often suitable for very amicable couples, the risk associated with an ad hoc agreement is that there is nothing binding the paying party to continue paying child support in accordance with the agreement moving forward. In the event that the paying party were to cease making payments in accordance with the ad hoc agreement, the receiving party would have no recourse to compel the paying party to continue paying in accordance with the agreement. It is for this reason that ad hoc agreements in relation to child support are not recommended.

Child Support Assessment

A Child Support Assessment is issued by the Child Support Agency and is determined using a specific formula that addresses a number of variables. These variables include the number of children and each of their ages, the annual income of each party and the number of nights the children are in each party’s care.

If one party applies for a Child Support Assessment from the Child Support Agency, the Agency will issue an assessment which the paying party will be liable to comply with. Child Support Assessments vary if any of the above-mentioned variables change. For example, as the children grow older and specifically, once children turn the age of 13, the Child Support Agency will likely increase the assessment in circumstances where the cost of children increases as they grow older. Alternatively, in the event that either party’s income changes or the care arrangements for the children change, the Child Support Assessment will alter to reflect these new arrangements.

The benefit of a Child Support Assessment is that they are a legal obligation and the Child Support Agency will chase the payer in the event that they cease making payments in accordance with the assessment. However, in circumstances where child support assessments are dependent upon the above-mentioned variables, a Child Support Assessment amount can change quite regularly in the event that there are changes in care arrangements or income.

Binding Child Support Agreement

The final way that parties may agree to document a child support agreement is by way of a Binding Child Support Agreement. Binding Child Support Agreements set out both periodic amounts (ie weekly, fortnightly, monthly etc.) as well as non-periodic expenses that arise sporadically throughout the year (such as school fees and expenses, private health cover, extra-curricular costs, gap medical costs etc). Similar to an Assessment, Binding Child Support Agreements impose a legal obligation upon the parties to pay child support in accordance with the Agreement.

Unlike Child Support Assessments, Binding Child Support Agreements once entered into are binding and not variable. As such, obligations in accordance with Binding Child Support Agreements do not alter in the event of change in circumstances such as reduction or increase of income, change of care arrangements etc (unless a clause is included to specifically provide for such change in the agreement). The parties can expect to be bound by a Binding Child Support Agreement until the children reach the age of 18 years or finish their high school education (whichever is later), unless agreement is reached to alter the Binding Child Support Agreement prior.

If you require assistance with your family law matter, please not hesitate to contact a member of our Family Law Team.

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Failure to Repair and Maintain Common Property in Strata

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The recent NSW Court of Appeal Decision of The Owners – Strata Plan No. 74232 v Tezel [2023] NSWCA 35 (“Tezel”) determined that the two-year limitation period imposed by section 106(6) of the Strata Schemes Management Act 2015 (“SSMA”) begins from the time at which the owner was first aware of the type of loss that is the subject of the complaint…

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Preparing for your first meeting with a family lawyer

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We understand that your first meeting with a family lawyer can seem very daunting, especially during a challenging and emotional time. However, taking that first step to schedule this meeting will ensure you are able to obtain clear and tailored advice as to your rights, obligations and the various pathways available to you in order to reach a fair outcome.

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What Happens to Your Digital Assets When You Die?

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You may have heard of using a Will to protect your physical assets when you pass away, but what about your digital assets? Understanding which digital assets you have ownership of may assist your friends and family with accessing them on your death. Read on to find out more…

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How can I ensure my pets are looked after when I die?

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As Australia has one of the highest rates of pet ownership you should consider the likelihood of your pet outliving you in your will…

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