Tag Archive for: separation

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.

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.

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.

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:

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.

On 25 August 2021, the proposed pet by-laws were officially legislated as part of the Strata Schemes Management Act 2015 (SSMA Act) making the keeping of pets in strata schemes a whole lot easier for animal-lovers.

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

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.

COVID-19 has had a far-reaching effect on all corners of Australian society, and this current lockdown in the Greater Sydney area has once again resulted in the substantial loss of jobs and/or a significant reduction in income for some people. However, does a reduction in income or loss of employment mean that you are no longer liable to pay your Child Support obligations? The answer to this depends on how your Child Support obligations have been documented.

What to expect from your first meeting with a family lawyer?

Going through a separation can be one of the most challenging times a person will experience.

It’s the start of a new chapter that often brings much uncertainty. Speaking with a lawyer as early as possible will allow you to become aware of how the law applies to your situation and make informed decisions. Every matter is different, and each person’s circumstances vary, there is no “one size fits all” solution to Family Law. Therefore getting correct advice that considers your history, your current situation and your future needs is imperative.

If you have decided to take the first step and seek advice from a family lawyer, we understand the process may feel daunting. Here are some tips to help you prepare for the first meeting you have with your family lawyer.

Come prepared

Come prepared to learn. We will provide you with a lot of information. Bring a notepad or a support person if you think they will help you remember. Try to be ready to tell us your story, what you want and don’t want, and how you’d like to move forward. However, also know that it is ok to not be sure. It is often a difficult time and that is where we can help you find some clarity.

Be organised

At the first meeting, your lawyer will ask you a series of questions and those questions will include trying to obtain a comprehensive list of the assets, liabilities and superannuation held by you and your partner both jointly and individually along with the estimated value of those things.  If you come prepared with as much information as possible you will get maximum value from your meeting. Click here for a checklist of documents to bring to your initial meeting.

Bring a list of questions

People are often overwhelmed with information and emotions during our first meeting that they forget the questions they had in mind to ask us. It’s a good idea to compile a list of specific questions that you want answered. Some questions you might like to ask are:

  • What are the steps in reaching an amicable resolution?
  • What should I do if ‘X’ or ‘Y’ happens?
  • Will I have to sell my house?
  • What is your experience in this area?
  • What will happen with our kids?
  • What happens if my partner doesn’t return our kids to me?
  • What is a timeframe for resolution?
  • What costs are involved?
  • What options are available to me?
Have an open mind

Often the options we suggest to you may be different to the ideas you may have considered. Have an open mind and try and consider all of the various resolution pathways that we propose. However, also remember, all solicitors must act on our client’s instructions. Our job is to advise you about your options and the effect of different courses of action. Your job is to tell us what path you wish to take.

Try not to be overwhelmed. Lean on us

We may not be able to solve all of your problems in the first meeting, but we will get you on the right track and provide you with a clear path towards resolving your matter as amicably and quickly as possible. We are here to help and provide the support you need. If you would like a free 15-minute consultation to discuss your situation, please call our Family Law team on 9523 5535.