• October 3, 2019 in Family Law

    Who gets the pet?

    We adore our pets and often they are considered to be a part of the family.

    So when a relationship ends, who ‘gets the pet’ can be a very important consideration.

    If you agree about who gets the pet after separating

    In a lot of cases, this issue can be resolved amicably and the parties can agree who will keep the pet, or sometimes parties will agree to ‘share custody’ or arrange regular visits with the pet.

    Due to the time, money and stress that can be involved in going to court, it is best to try to reach an agreement about your pets either through direct negotiation, or through family dispute resolution services (such as a mediation).

    If you can’t agree about who gets the pet

    In some cases for a variety of reasons the parties just can’t reach an agreement about who gets to keep the pet, so they will need to make an application for the Family Law Courts to determine the matter.

    All family law disputes are dealt with under the Family Law Act 1975 (Cth) (the ‘Act’).

    As much as people may consider their pets to be a part of the family, the Act does not make any reference to pets or animals. The current legal position is that pets are categorised as ‘chattels’ – which simply means property.

    So, if you need to ask the Family Law Courts to make orders in relation to pets, these orders will be made as part of a property settlement.

    Whilst the Family Law Courts have the power to determine who can keep the pet, the Court does not make orders about ‘sharing custody’ or allowing ‘visitation’ of a pet. Despite being classed as property, pets are also generally not regarded as having a monetary value (unless there is a particular reason, for example for a pedigree dog).

    In deciding who will keep the pet, in previous cases the Family Law Courts have considered things such as:

    • who has possession of the pet
    • who has cared for the pet (such as feeding, walking, washing etc.)
    • who purchased the pet and whether one person had the pet before the relationship started
    • whether the children (when applicable) have a particular attachment to the pet
    • who pays the vet and food bills, and whether the party has capacity to care for the pet and a suitable place for the pet to live.

    The Family Law Courts have a wide discretion under the Act and can take into account any factors they deem fit.

    Can we record our agreement about who would get the pet if we separate?

    Because of the classification of pets as property, one measure which can be taken to prevent any future dispute about ‘who gets the pet’ is to enter in to a binding financial agreement (‘BFA’). The BFA can cover a range of financial matters, or can just deal with the pets – this is completely up to the parties.

    A BFA can be made by parties to a de facto relationship or a marriage either before living together or getting married, at any time during the relationship, or after separation or divorce.

    Should the laws about pets be changed?

    There has also been debate about whether the law surrounding pets should be changed. Some animal rights activists argue that the treatment of animals as property is inappropriate given that pets have awareness and experience complex emotions.

    In some jurisdictions overseas, the courts have adopted a ‘best interest’ test when deciding who gets the pet – meaning that they consider what is in the pet’s best interest. The ‘best interest’ test is the test used in Australia when deciding children’s matters. Despite some push for them to do so, Australian courts have been opposed to changing the treatment of pets under family law.

    If this issue effects you or someone you know please contact Dannielle Glaister in our Family Law Team to discuss on 07 3009 6555.

     

  • October 3, 2019 in Family Law

    Is the written and signed agreement between my ex and I sufficient?

    The answer to this question is that even if an agreement about a property settlement is written down and signed (what is sometimes called an ‘informal agreement’), unless certain steps are followed, the informal agreement will not be binding.

    An agreement can be made binding in two ways:

    1. filing for consent orders in the Family Court; or
    2. signing a binding financial agreement (‘BFA’) which complies with the Family Law Act 1975.

    A consent order is an enforceable Court order that is made after a joint application by the parties, and a BFA is a type of contract, which is made privately without applying to the Court. Each has its own benefits and disadvantages, but both are equally binding.

    Even in simple situations where there aren’t big sums of money involved (or even if there is only debt), it is important that a property settlement agreement is made binding.

    So why is it so important?

    Arguably the biggest benefit of a binding agreement is that it will bring finality to property settlement matters.

    One of the biggest risks with having only an informal agreement is that if either party doesn’t follow it, the other person will have almost no rights to enforce it.

    If the agreement isn’t binding, one party could change their mind or decide they ‘deserved more’. If this happens, the informal agreement cannot be used to stop it and a Court might impose something entirely different, not to mention the time and money you will spend going through the process (which will usually be more than what it would have cost to draw up a binding agreement).

    The matter will also be decided based on the assets and liabilities at that time, as the property pool does not get backdated to the date of separation or the informal agreement. So, for example, if after separation you have saved up or received some money, whilst your ex has built up some credit card debt, then you might be left arguing about what should and shouldn’t be included in the property pool.

    Preparing a binding agreement also gives parties the opportunity to get disclosure from each other so that each party knows what the financial position actually is and exactly what each person is getting out of the settlement.

    Even if you and your ex separated on good terms and you feel confident that neither of you would go back on your agreement, sometimes there can be unintended issues.

    The most common issues are forgetting to or not properly factoring something in (for example, forgetting to factor in capital gains tax or not removing one party’s name from something), or not releasing one party from a liability or personal guarantee (such as a mortgage, finance or credit card).

    For example, say you agree that your ex keeps the car and takes over paying it off, but you aren’t properly released from the finance agreement or personal guarantee. Down the track the bank or finance company might come to you, and even though you don’t have the car anymore you might still be on the hook to pay. A binding agreement prepared by a lawyer would protect you in this kind of situation.

    Formal agreements also have additional benefits including allowing for a superannuation split, certain transfer duty exemptions, and protecting your estate if one of you passes away. Consent orders can also deal with parenting arrangements if the parties also want to include them.

    Seeing a lawyer to formalise your agreement will also give you the benefit of advice on exactly what your agreement means for you and your rights and obligations, and whether the agreement is within the range of what would be considered to be fair.

    To discuss further, contact Dannielle Glaister in our Family Law Team today on 07 3009 6555.

  • October 3, 2019 in Family Law

    Considering your contributions in a family law property settlement

    Considering each partners’ contributions to the assets of a marriage or de facto relationship after separating is an important step of the family law property settlement process.

    Contributions can be financial (such as income, or owning a property), non-financial (such as DIY renovations, or looking after the children), direct (made by a partner themselves) or indirect (for example, receiving a gift for the deposit to buy a house).

    Assessing each partners’ contributions will have an effect on the division of the property pool of the relationship and, in general terms, greater contributions can mean a greater entitlement.

    However, the Family Law Courts have repeatedly emphasised that each matter must be decided based on its particular facts and circumstances.

    This means that there is no mathematical formula for making an assessment of contributions to a relationship. It is a common misconception that you will ‘take away what you put in’ during the relationship (in terms of money or assets) – which is not necessarily the case.

    That being said, there are general principles which can be seen in the cases decided by the Family Law Courts which provide guidance as to how contributions will be assessed, and how the property of a relationship will be divided.

    Firstly, the timing of when the contributions are made and the length of the relationship is very relevant.

    Contributions will usually be treated differently when the relationship was short (under about 5 years) or long (over about 10 years). Contributions that are made at the beginning will also usually be treated differently than ones made near the end or after the relationship has ended.

    The nature of the contribution can also be important. Some examples of when contributions will be most important are:

    • when one partner had more assets than the other at the start (for example owning a house or land);
    • when an asset goes significantly up in value (and whether that is because of the effort of the parties or purely because of market forces can be considered);
    • when there have been large gifts or inheritances;
    • when there has been a large lottery or gambling win; or
    • when there is a compensation payout of some kind to one partner (for example personal injuries or total and permanent disability (TPD) payments).

    The Family Law Courts have also emphasised that financial contributions are not necessarily considered to be more important that non-financial contributions, in particular contributions as a homemaker or parent.

    It is also important to remember that the assessment of contributions is only one step in the property settlement process, so even if one partner’s contributions are greater or lesser (or even if they are equal), an adjustment can still be made under the ‘future needs’ or ‘just and equitable’ steps in the process.

    If you are going through a separation it is important to understand your rights and entitlements when you are trying to divide up your assets. In particular, getting specific legal advice about what weight might be attached to your contributions is crucial to make sure you receive your fair share.

    To discuss further, contact Dannielle Glaister in our Family Law Team today on 07 3009 6555.

  • April 2, 2019 in Family Law

    New protections for domestic violence victims in the Family Courts

    New laws were introduced on 11 March 2019, changing court procedure in matters involving an element of domestic violence where one party is self-represented. These new laws will have effect from 10 September 2019.

    Previously, a litigant who was violent or abusive towards their former partner could cross-examine their former partner during family law proceedings. This would invariably lead many victims of abuse to settle their proceedings on unfavourable terms purely out of fear, or being put in a position where they are asked questions for hours at length from the very person who was violent towards them, which could arguably amount to abuse itself.

    This recent amendment to the Family Law Act prohibits the perpetrator from cross-examining the victim, and requires that person to engage a solicitor to perform the cross-examination.

    The amendments have attempted to strike a balance between protecting vulnerable family violence victims, and also protecting innocent parties from being unfairly disadvantaged in a procedural sense when unfounded allegations are made against them.

    There must be more than just an allegation of abuse, and for this restriction to apply:

    1. Either party must have been charged with, or convicted of, an offence involving violence (or a threat of violence) to the other person; or
    2. A domestic violence order must apply to both parties (this must be a final order not a temporary order); or
    3. The Family Court or Federal Circuit Court has made a personal protection restraint against one party in favour of the other; or
    4. The court otherwise directs this restriction to apply.

    If none of the above 4 factors apply, the court is required to ensure there are protections in place for the alleged victim of domestic violence, which could see for instance the cross-examination being conducted by video or audio link.

    Interestingly, this restriction also applies the other way, such that it restricts a victim of abuse from directly cross-examining the perpetrator. Perhaps in most instances the victim would be unwilling or unable to do so, however this restriction could prove disastrous for an abuse victim who is unable to afford a solicitor, which would see them being unable to challenge the evidence of their former partner. The statistics show victims of abuse are usually in a more vulnerable financial position than perpetrators, which would see this restriction disadvantage victims more than perpetrators.

    In some instances Legal Aid will assist with providing representation, however not all parties qualify for a grant of aid.

    It is important to consider these new laws when deciding whether to challenge an application for a domestic violence order. It is common for Respondents of domestic violence applications to consent to an order to avoid a trial and the potential for a finding of fact being made against them, however doing so will have repercussions if they find themselves in a family law dispute.

     Jacinta Norris
    Senior Associate
    Ph:       +61 7 3009 6555
    Email:   
  • February 8, 2018 in Family Law, Personal Law

    Pressure on Queensland Government to Legalise Euthanasia

    The Queensland government is facing increasing pressure to follow Victoria and pass laws to legalise euthanasia, says leading legal firm Creevey Russell Lawyers.

    Creevey Russell’s Wills and Estates lawyer Rachel Greenslade said the passing of the Assisted Dying Bill in Victoria could be replicated in other states and territories in coming years.

    Ms Greenslade said while Queensland Premier Annastacia Palaszczuk has said the issue will not be considered in her state this year, she has left the door open to possible euthanasia reform.

    “There is some strong support for the legalisation of euthanasia  in Queensland including a push by the estate of former Brisbane Lord Mayor Clem Jones,” Ms Greenslade said.

    Ms Greenslade said following an 18-month implementation period in Victoria, 2019 will mark the first time in Australia those suffering from terminal illnesses causing intolerable pain will have the right to choose to die with assistance.

    “Quite rightfully, assisted dying comes with strict eligibility requirements,” she said.

    “To be eligible you must be over 18, be suffering from an incurable illness, not be expected to live more than six months, be deemed capable of making decisions by two doctors and reside in Victoria for at least 12 months prior to applying for assisted dying.

    “Patients who meet the eligibility criteria will be able to obtain a lethal drug from their doctor within 10 days of asking to die and after undergoing two independent medical assessments. The patient will also be responsible for administering the drug themselves but a doctor may assist in very rare situations where the patient is physically unable.”

    “Although there is concern the new laws will make elderly patients more vulnerable to abuse and coercion, the legislation has a variety of safeguards including robust witnessing requirements and the creation of new criminal offences.”

    “This is a very emotive issue, and until you have held the hand of a loved one dying from a terminal illness it is difficult to relate.”

    “At the end of the day it is not about how family or the public feels; it is about granting someone the right to put an end to their own suffering.”

    Further inquiries

    Rachel Greenslade (07) 4617 8777

  • December 18, 2017 in Family Law

    Have you brought property into a relationship?

    If you were in a relationship and you brought into the relationship most of the value of the combined assets at the start of the relationship, the Court would likely find that this was a valuable contribution made by you, which ought to be factored into any final outcome.

    In one of the leading cases on this topic, at the start of the relationship, the husband and the wife had assets, liabilities and financial resources of which the husband brought about 95% of the value, comprised mainly of a house.  The Court found that during the relationship, the husband and wife made relatively equal contributions.  The husband made some ‘extra’ contributions after the relationship ended, which the Court took into account.  But the largest factor affecting the outcome was the disparate initial contributions.

    In the first Trial, the Judge decided that the pool as at the date of the Trial should be divided 45% to the wife, and 55% to the husband.  The husband appealed this decision.  The Court of Appeal (who can sometimes re-decide a matter) decided that the overall distribution should be 25% to the wife and 75% to the husband.  Both Courts agreed that the husband’s ‘extra’ contributions after the relationship ended was ‘worth’ 5%.  So the balance of his distribution accounted for the difference in the parties’ initial contributions.

    For further information please contact Leith Sinclair on 07 3009 6555.

  • November 29, 2017 in Commercial Law, Family Law, Personal Law

    Ruling Highlights Importance of Finalising Financial Agreements Early

    A High Court ruling to set aside a prenuptial agreement does not change the importance of financial agreements in asset protection, according to leading legal firm Creevey Russell Lawyers.

    Creevey Russell Partner Clare Creevey said the High Court judgment to set aside a pre-nup between the now deceased elderly millionaire property developer and his younger European bride highlights the need to properly finalise financial agreements early.

    The High Court last week unanimously set aside the prenuptial agreement, which the wife had signed against her own legal advice, and another financial agreement signed after the wedding.

    The decision overturned a Full Court of the Family Court decision which last year ruled the financial agreements were legally binding. The High Court ruling, which said the wife was powerless and had no choice but to sign, will result in another court deciding how the property pool should be divided.

    Ms Creevey said: “This decision doesn’t change the importance of financial agreements in asset protection. Agreements between parties who have acted out of their own free will cannot be set aside.

    “This judgment simply highlights the importance of finalising and signing the agreement early on, and in circumstances where the other party is not at a special disadvantage or is unable to exercise their own free will.”

    The couple in the prenup had met over the internet and about 11 days before their wedding the Australian developer, who had assets between $18 million and $24 million, insisted his fiancée sign a prenup or the wedding would not go ahead. The agreement said if the couple separated within the first three years of marriage the woman would receive nothing.

    Ms Creevey said: “A second agreement was signed in the months after they married, presumably because the husband’s lawyers were concerned the first agreement could be vulnerable to being set aside in the future because it was signed so close to the wedding.”

    The parties separated four years later and the wife filed a court application to make a declaration that the agreement was not binding. In that application she also sought an order that she receive $1.1 million from the husband plus $104,000 in spousal maintenance. The husband died in 2014 during the first proceedings and the executors of his estate took over the proceedings on his behalf.

    The matter will now proceed to the Federal Circuit Court where the wife’s application for property adjustment and spousal maintenance will be determined.

    For further details do not hesitate to contact Clare Creevey or Jacinta Norris on (07) 3009 6555

  • October 19, 2017 in Family Law

    CAN I CHANGE MY CHILD’S SURNAME

    Frequently, a parent involved in a dispute about arrangements for their child will ask the question: “Can I change my child’s surname?

    There is no specific provision in the Family Law Act 1975 (Cth) in relation to changing a child’s name. This means the Court does not have the power to make an Order to direct the Registrar of Births, Deaths and Marriages to change the child’s name on the birth register (in each State/Territory). As they are not a party to the family law proceedings, the Registrar of Births, Deaths and Marriages cannot be bound by any Court Order.

    However, the Court can make an order requiring a child to be known by a particular name. Or, a Court can order the parties do all things necessary to lodge documents with the Registry to change a child’s name.

    In considering whether or not they should make an Order, the Court must first give paramount consideration to what is in the best interests of the child, in the specific circumstances of the individual case. According to S & H [2007] FMCAfam 97, in addition to the factors contained in section 60CC setting out how the Court should determine the best interests of the child, the Court should also consider:

    1. the short and long term effects of any change in the child’s surname;
    2. any embarrassment likely to be experienced by the child if its name is different from that or the parent with residence or day to day care of the child;
    3. any confusion of identity which may arise for the child if his or her name is changed or not changed;
    4. the effect which any change in surname may have on the relationship between the child and the parent; and
    5. the effect of frequent or random changes of name.

     

    Please contact Maddison Jago at Creevey Russell Lawyers on (07) 3009 6555 for further information.