Tag Archive for: separation

Changing Your Child’s Surname After Separation: What You Need to Know

,

We frequently see situations where two parents end their relationship, and the parent who has reverted to their maiden name, or never actually took their partner’s surname to begin with, wants to know whether they can change their children’s surname. For example, common requests are to hyphenate the children’s name to include both parents’ surnames, or sometimes to change their surname completely. The short answer is that a parent cannot change a child’s surname without the other parent’s consent.

If parties are not able to agree in relation to the proposed change of name and there is no previous Order of the Court allocating sole parental responsibility to one parent, the parent hoping to change the children’s surname is required to file a Court application in the Federal Circuit and Family Court of Australia asking the Court to decide. In making this such decision there are several considerations the Court must consider, however ultimately, the Court must weigh up whether it is in the children’s best interests to change their name, some relevant factors in making this decision include:

• The short–term and long-term effects to the child of the change of name;
• The extent of contact with the parent whose surname the children currently have (past and future);
• The extent to which the child identifies with the parent whose surname they have;
• The extent to which the child identifies with the parent whose surname they do not have;
• Any embarrassment likely to be experienced by the child with the proposed name change;
• Any confusion of identity that may arise for the child, if the surname is or is not changed.

Ultimately as with every family law matter, there is no one guaranteed outcome, and the Court assesses each Application for a change of name on a case-by-case basis and with the best interests of the children at the forefront of its decision–making.

If you’re dealing with a family law matter or want to learn more, our dedicated and highly experienced team of family law solicitors is here to assist. Get in touch with us at (02) 9523 5535 or email us at info@southernwaters.com.

/0 Comments/by

Who keeps the pet after a breakup?

,

Historically, furry friends were given little consideration with respect to formalising a settlement following the separation of a couple. They were generally classified as property and if they were included in a settlement at all, they were considered to be a “chattel”. In practice, however, it was not very common that much consideration was given to pets when formalising an overall settlement.

However, by way of the Family Law Amendment Bill 2024, the government has recently proposed further amendments to the Family Law Act to place a greater emphasis on addressing pets when finalising a settlement.

The specific amendments proposed apply particular consideration to pets in determining who will continue to own the pet as a part of a property settlement, which will allow the Court to make Orders providing for the ownership of the pet to one party following separation. The government has suggested that the proposed amendments will work towards ensuring the safety of all family members following separation, including pets, in circumstances where regrettably pets are often used and abused in cycles of family violence.

To enable the Court to make such an Order with respect to the ownership of a pet, it will have to consider some specific factors, including:

1. any history of family violence during a relationship and who the perpetrator of said violence was;

2. the extent to which each person has cared for the pet historically;

3. any history of cruelty to the pet by either person; and

4. the relationships of either person, or a child of the relationship, with the pet.

These proposed amendments hope to solidify the significance that pets have in many Australian families and recognise them as a unique type of property in a way that they have not been recognised historically.

If you have a family law matter, please reach out to us at 02 9523 5535 or at info@southernwaters.com.au. At Southern Waters Legal we have an experienced team of family law solicitors who can assist you.

/0 Comments/by

Navigating the Complexities of Child Support and Tax Compliance: What You Need to Know

,

The child support system in Australia plays a crucial role in ensuring that financial responsibilities are met between separated parents. However, recent revelations highlight significant issues within this system, particularly concerning the manipulation of tax returns to avoid child support payments. At Southern Waters Legal, our Family Law team is dedicated to helping clients navigate these complexities.

The Growing Problem of Non-Compliance

Recent data reveals that over 160,000 parents in Australia’s child support system failed to lodge their tax returns last financial year. This non-compliance has significant implications, as Services Australia, which administers the child support scheme, referred 168,082 parents to the Australian Tax Office (ATO) for overdue tax returns in 2022-23.

Failing to lodge a tax return is a common tactic some parents use to reduce their child support obligations. This practice often involves underreporting income, using cash-in-hand work, or complex business structures to evade proper child support assessments. Such actions can be seen as a form of economic abuse, significantly impacting the receiving parent, who is predominantly female and already facing economic disadvantage.

The Impact of Non-Compliance

The failure to lodge tax returns can severely affect the calculation of child support payments. Without accurate tax returns, Services Australia estimates income based on previous returns or average earnings, may not reflect a parent’s true financial situation. This discrepancy often results in unfairly low payments, depriving children of the financial support they need.

The repercussions are far-reaching. According to an interview conducted by the ABC with Lara Freidin from Women’s Legal Services Australia, this issue is a form of ongoing violence and economic abuse. It undermines the stability of children’s lives and places undue stress on the receiving parent, who must often initiate investigations or legal proceedings to address these discrepancies.

An additional impact on those who are tardy and have yet to update their income with child support is that the child support agency can issue a debt if they discover you have not been paying child support at the correct rate and your income bracket.

Government Response and Reforms

In response to these challenges, the recent federal budget allocated $5 million for reforms aimed at improving compliance and enforcement within the child support system. The reforms include enhanced scrutiny of tax return compliance and measures to better enforce payment obligations.

Despite these efforts, the ATO’s enforcement program only managed to recover a fraction of the outstanding child support debts. For many parents, navigating this complex system can be daunting, especially when dealing with hidden income or intricate business arrangements.

How to Address Child Support Issues

If you’re facing challenges with child support payments—whether as a payer or a recipient—seeking professional legal advice is crucial. A family law lawyer can assist in several ways:

  1. Reviewing financial disclosures: Ensuring that all income and financial information is accurately reported to prevent disputes and discrepancies.
  2. Navigating complex cases: Dealing with hidden income, business structures, and cash transactions requires specialised knowledge to ensure fair assessments.
  3. Enforcing payments: Legal action may be necessary to enforce payment obligations and recover owed amounts.
  4. Appealing assessments: If you believe the current child support assessment is unfair, a lawyer can help you appeal and seek a revised assessment.
Get the Support You Need

At Southern Waters Legal, our experienced Family Law team is here to help you navigate the complexities of separation and child support. We understand that every family situation is unique and requires a tailored approach to ensure fair and just outcomes.

If you are struggling with child support issues or need assistance with your family law matter, contact us today for a consultation, and let us help you secure the support you deserve.

/0 Comments/by

What Options Do I Have To Determine My Pets Future Post Separation? – Part 2

,

We recently posted a blog titled ‘Who Gets the Dog?’. We have received many questions about pets and how they can be dealt with. As such, we have created this blog to consider what options you have to determine your pet’s future post separation.

  1. Binding Financial Agreement

Binding Financial Agreements (“BFA”) can be entered into at any stage in a relationship – before cohabitation, during cohabitation, or post separation. A entered into prior to or during cohabitation will have the effect of pre-determining what will happen to each person’s property in the event that you separate in the future. This gives you certainty about what will happen to your assets, and you can include your pet in such agreement.

  1. Negotiate

Negotiation between the Parties directly or between their respective legal representatives is usually the first step to settle a property matter. This could save a lengthy legal battle and costs. Further, you have raised your pet, you know what is in its best interests. One option may be that the pet moves between each parent’s house with the children.

  1. Mediate

In the event that negotiation does not work, the next step is generally to attend a mediation session with an independent third party who will assist with settlement discussions.

  1. Make an Application to the Court including Orders for your Pet

In the event that your matter proceeds to Court, the Court will consider a range of factors including:

  • who purchased the pet and what the purpose of such purchase was;
  • who is the legal owner of the pet, that is, whose name is the pet registered to;
  • who cared for the pet;
  • who spent more time with the pet; and
  • who took on more of the responsibilities such as feeding, walking and training the pet.

These considerations, however, are based on who should receive ownership of the ‘property’ rather than what is in the best interests of the pet.

It is important to keep in mind that the Court has wide discretion in the Orders that it makes. The Court could Order that one party keeps the pet, that the pet moves with the Children, or that the pet be sold and the proceeds divided.

Further, the Court cannot make an Order for shared time with a pet. In Davenport & Davenport (No 2) [2020] FCCA 2766, the Court decided it could not make a shared custody order which was sought by the Husband, as the FLA provides no statutory basis for the “shared custody” of property following separation (at [38]).

Link: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2020/2766.html

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.

/0 Comments/by

Who Gets The Dog? – Part 1

,
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 three quarters 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.

/0 Comments/by

Frequent Flyer Points and Divorce: Who Gets What?

,

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.

/0 Comments/by

The 5 steps the Court takes to determine a property matter in Family Law

,

There are 5 factors that the Court is required to consider when making a determination in relation to property proceedings in Family Law matters. These steps are set out as follows:

Read more
/by

Updating parenting orders to reflect your current situation

, ,

The COVID-19 pandemic and associated restrictions may have prevented us from being able to do many things, however updating your parenting orders to reflect your current situation is not one of them.

Read more
/by

LGA’s of concern and parenting arrangements

, ,

My former partner lives in one of the LGA’s of concern, do I still have to facilitate our parenting arrangement?

Read more
/by

COVID-19 Update on Mediation

, ,

Take a look at Leona’s update on mediation. Even with restrictions, matters are moving forward.
Remember, if you have any questions regarding your circumstances, please get in touch with us on 9523 5535.

Read more
/by