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Your Pet as Property: The Property Pet Predicament 1024 683 Dorter

Your Pet as Property: The Property Pet Predicament

With the increase of pet adoption and purchases during times of COVID-19, you may want to know how the Family Court would currently treat our furry friends in a family law dispute, should it eventuate.

While most pet-lovers easily consider their pets and other furry-friends honorary family members and life-time companions, figuring out who keeps the fur baby can often be distressing as pet “custody” disputes remain unclear in the realm of Family Law. We understand that separating pets from children and their owners can be stressful and difficult, adding another layer of tension during an already difficult time and, as a result, it is important to know how the Court deals with pet custody disputes.

Pets are Property

There is currently little to no legislation to assist with navigating pet custody. As a result, the Courts often approach pets in conjunction with personal property or other assets under s 79(1) of the Family Law Act, applying principles that would be applied to other personal assets including furniture or clothing.

The Court has a duty to finalise all financial relationships between the parties and to ensure that their financial ties are severed with finality. As pets are considered property, this means the Court in the Family Court jurisdiction is unlikely to grant orders for shared ‘pet custody’ so to speak.

Similar to treating any other asset of a property dispute, the Court will consider a number of factors to determine who will be able to retain their pet companion, including:

  1. Who the pet resided with prior to, during and following separation;
  2. The relationship each of the parties have with the pet;
  3. Who has been responsible for the financial expenses associated with owning the pet;
  4. Who has the most suitable place for the pet to live; and
  5. Who the pet is registered to.

Every matter differs on a case by case basis and the weight on each factor will also depend on the circumstances of the case.

This is often unsatisfactory and fails to recognise the emotional relationship built with your companion. As a result, alternative options may be required to determine the care arrangements for your companion. There are a number of different options that may assist you when dealing with separation when it comes to you beloved family pets

Negotiation

As with any other parent, it is always best to resolve any differences by negotiating the living arrangements between the parents.  We understand that negotiation can be hard during difficult times, such as separation and as a result, we are here to help. This may be done by assisting you in articulating suitable arrangements through an exchanging of letters or face-to-face, during mediation, to determine what arrangements would be best suited for each party.

It is important to note however that agreements reached by negotiation are not legally binding and can be subject to change. Although the benefit is flexibility, agreements are not enforceable under the Family Law Act unless they are considered Binding Financial Agreements, or are Orders of the Court.

A “Pre-Nup” or in this case a “Pet-Nup”

One alternative to formalise pet custody arrangements is in the form of a Binding Financial Agreements (BFA). A BFA is an enforceable contract and you can include clauses detailing pet care arrangements in the event of separation.  BFAs prior to marriage (otherwise known as pre-nuptial agreements) refer to agreements entered into between the parties which establish how financial affairs and property will be addressed in the event of a relationship breakdown. You can also enter into a BFA after separation.

BFA’s do need to satisfy a number of legal requirements to be binding. However, it may be an effective way of amicably laying out custody arrangements of your beloved pet without requiring the intervention of the Court.

Find more about Binding Financial Agreements here.

Consent Orders

Much like Negotiations, Consent Orders are made with the consent between the parties. Consent Orders refers to a written agreement that is approved by the Court and may encompass a range of issues including management of your fur-baby.

The advantage of these Orders are that they usually legally binding and therefore enforceable upon both parties, ensuring that any agreement that is reached will continue in accordance with the Orders of the Court. However, in the context of pet custody, there is much debate whether Orders made for ‘spend time’ arrangements or ‘shared’ care for your pets are enforceable Orders. This is because pets are considered ‘property’ and the Court has a duty to finalise and determine all financial relationships between the parties.

However, there has been circumstances where the Court was prepared to make Orders for shared ‘custody’ of the pets ordering the pet to remain with children and to travel between residences on the same schedule as the children.

Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about your pet predicament.  Please get in touch with us on (02) 9929 8840 or mail@dorterfamilylawyers.com.

Julie Cheung

Associate

Rebekah Dorter

Principal

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

When being at home may not be the safest place… 1024 495 Dorter

When being at home may not be the safest place…

When being at home may not be the safest place …

As Australia and the world are working tirelessly towards stopping the spread of the Coronavirus by imposing several restrictions on the movements of citizens, those restrictions together with social isolation and economic pressure create a petri dish for an increase in domestic and family violence.

It has been reported that Google searches on domestic violence have surged by up to 75 percent since the first recorded Coronavirus case. In these difficult times it is important to raise awareness about domestic violence and the support available for victims.

If you are feeling unsafe at home, there is help available for you – from police, counsellors and lawyers.

What is domestic violence and family violence?

Domestic and family violence is an abusive behaviour in which one person seeks to control and coerce another person in a family or domestic relationship.

It can take many forms and can include:

  • Sexual violence;
  • Psychological violence including intimidation, gaslighting, threatening, verbal abuse;
  • Coercive and controlling behaviour;
  • Social violence such as controlling or limiting social activities, isolating a partner from family or friends;
  • Financial and economic abuse;
  • Abuse based on spiritual views.

What relationships are considered “domestic”?

  • Intimate relationships: husband and wife, de facto partners, boyfriend and girlfriend, same sex relationships;
  • Family relationships: older parents and their children, other family members including step-parents; and
  • Other relationships: such as person with a disability and their carer.

How can you be protected – what is an Apprehended Domestic Violence Order?

An Apprehended Domestic Violence Order (ADVO) is an order made by the Court against a person (referred as defendant) in order to protect you from future abuse. An ADVO can be adapted to your particular circumstances to provide you with the best possible protection from violence and also extends to other persons with whom you have a domestic relationship, such as your children or a new partner. If a defendant disobeys the orders in an ADVO it can lead to criminal charges.

How can I apply for an ADVO?

  1. Police can apply for an ADVO on your behalf. Many police stations have designated Domestic Violence Liaison Officers who can assist you with the application;
  2. A lawyer can apply for an ADVO on your behalf; and
  3. You can also make an application at your local court.

What if you need immediate protection?

If you need immediate protection the police can apply for a provisional or interim ADVO for your protection which will last until it is revoked or until an interim or final order is made.

Importance of safety planning

If you are experiencing domestic violence or family violence it is crucial that you have a safety plan in place. It is helpful to seek help from a professional such as a counsellor in preparing your safety plan. Safety planning is about taking control over your life and taking proactive steps towards living life without fearing for your and your children’s safety.

Some things to consider when preparing your safety plan

  1. Identify a ‘safe room’ in your home where you can wait for the arrival of the police. If the room cannot be locked, consider installing a lock to make it more secure.
  2. The most dangerous rooms at your home are the rooms where the person who is violent has access to weapons such as the kitchen or the bathroom. If you sense that your partner could become violent remove yourself from the ‘dangerous areas’.
  3. Prepare an escape plan and an ‘escape bag’ with a few essential belongings and the most important documents and hide it in a safe place.
  4. Have a second phone (if possible) hidden and fully charged and ensure that your safe room has sufficient phone coverage.
  5. Teach your children how to call the police and how to give their full name and address.
  6. Have a ‘code word’ you can use on the phone without attracting attention and let your friends and family know that the word means that you are feeling unsafe.
  7. Keep your friends and family informed about your circumstances.

Domestic Violence and Family Violence Services

For more help and support please visit:

  • Rape & Domestic Violence Services Australia.
  • Domestic Violence Line (Ph 1800 656 463).
  • No to Violence.
  • Relationships Australia.
  • Women’s Legal Services NSW.
  • LawAccess NSW.
  • Legal Aid.

We understand that it takes courage to seek help from family and domestic violence and it can be very difficult. If you require assistance, please contact Dorter Family Lawyers and Mediators, family lawyers based in North Sydney and McMahons Point, on (02) 9929 8840 or mail@dorterfamilylawyers.com for a confidential discussion.

Tim Russell

Solicitor

Rebekah Dorter 

Principal

 

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

COVID-19 & Financial Support – How Do I Get It? 1024 683 Dorter

COVID-19 & Financial Support – How Do I Get It?

COVID-19 & FINANCIAL SUPPORT – HOW DO I GET IT?

Financial support from your former spouse or partner in family law matters, referred to as ‘maintenance’, is nothing new. However, the COVID-19 pandemic is creating a challenging environment for households – financial uncertainty, job losses and illness. We are often approached for urgent advice from many clients asking about their legal right to financial assistance in these circumstances.

MAINTENANCE

If you require financial support and your former partner can assist you financially, but is not willing to do so, our Family Law system can help.

Recently, where a former spouse refused to provide financial support we assisted by successfully obtaining an Order from the Family Court for our client to be paid an amount each week from her former husband, with that payment to continue indefinitely until a Final Hearing. The benefit of that Order to our client (and her child) in the present financial climate is significant.

DO YOU HAVE A ‘NEED’?

In determining what Order, if any, should be made, the Court is required to consider firstly the “need” of the party seeking the financial assistance. Some relevant factors include:-

  1. What income the party receives? Importantly, the Court is unable to take into account an income tested pension, allowance or benefit;
  2. What expenses are incurred, such as weekly costs for food, a motor vehicle, telephone, entertainment costs, children’s costs, gym, health and beauty, holidays and the like;
  3. Whether the party was financially supported by the other party during the relationship;
  4. Whether the party has the care of children, or another person;
  5. The age and health of the party;
  6. Whether the party is able to work greater hours, or re-enter the workforce if they have had time away from paid employment during the relationship;
  7. A standard of living that in all the circumstances is reasonable.

If the Court is satisfied that from these factors that the party has a “need” for financial assistance, it is then required to consider whether the other party has the “capacity to pay”.

CAPACITY TO PAY

The Court will make an assessment of a party’s “capacity to pay” based on the financial obligations of that party. When considering a party’s financial obligations, or their capacity to pay, the Court may take into account a number of factors, including:

  1. Their property, income from all sources and their financial resources available;
  2. The use to which that person is applying their income;
  3. The factors listed above, including their age, health and whether they have the care of children or another person.

When considering a party’s expenses the Court can make an assessment as to the reasonableness of those expenses. For example, the Family Court found in favour of our client, awarding her a certain amount in maintenance week, as the Court found that our client‘s  former spouse was applying income towards new or unnecessary expenses to keep funds out of reach of our client, by paying for renovations and depositing additional funds into the mortgage.

FAIRNESS

Ultimately, the Family Court is required to make orders which are ‘fair’, or ‘just and equitable’ in the circumstances.

Each family, and each separation, is unique.  It is important that you obtain expert Family Law advice when you separate or divorce in order to obtain your best outcome and settlement, and an outcome which is fair.

MEDIATION, OR COURT?

Our team of Family Law experts will assist you, providing you with strategic, expert and timely advice.

The majority of family law disputes fortunately settle without Court intervention. If an agreement cannot be reached between couples the alternatives available include:

  1. Mediation;
  2. Arbitration; and
  3. Collaboration between Lawyers.

If you require assistance, we are available using a number of platforms – telephone, Skype, Zoom, Teams, Facetime.

Otherwise, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or mail@dorterfamilylawyers.com for a confidential discussion.

Dorter Family Lawyers and Mediators offers expert family law advice in McMahons Point on Sydney’s Lower North Shore.

Andrew Johnson

Senior Associate

Rebekah Dorter 

Principal

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

Co-parenting in the time of COVID19 1024 682 Dorter

Co-parenting in the time of COVID19

The current COVID19 pandemic has required many of us to drastically alter our way of life in a matter of weeks and this in turn is having a significant impact on families and arrangements for the care of children.

For separated parents and carers, the additional stressors and uncertainties of the COVID19 pandemic can make navigating the Family Law process and co-parenting more challenging. In recent weeks we have given urgent advice to our concerned clients about how the COVID19 virus will impact their ability to comply with parenting orders and the options available to them if disputes arise as a consequence of the current pandemic.

Guidance from the Courts

On 26 March 2020, the Chief Justice of the Family Court of Australia and Federal Circuit Court of Australia, the Hon Will Alstergren, released a statement regarding parenting orders and the COVIC 19 pandemic. The statement provides useful guidance to parents concerned about their capacity to comply with parenting orders in the face of the current and potential restrictions and the capacity of the Court to assist them with these issues.

The key points from the statement are:

  • The Courts remain open to assist parties and provide parents with general guidance;
  • Parents and Carers must continue to act in the best interests of their children;
  • Parents and Carers are expected to comply with Court Orders in relation to parenting arrangements, including facilitating time being spent by children with each parent or carer pursuant to parenting orders.

Complying with Parenting Orders in the pandemic

If parents face circumstances where social distancing restrictions make complying with orders impracticable (for instance where orders designate changeovers are to occur at a contact centre or school which is not presently operating), they are encouraged to take the following steps:

  1. As a first step, and where it is safe to do so, parents should communicate with each other about their ability to comply with the current orders and attempt to find a practical solution to these difficulties. If you are communicating with the other parent in these circumstances, it is important for both parents to always consider the safety and best interests of the child, while appreciating the concerns of the other parent when attempting to reach new or revised arrangements. It is also important for parties to have regard to the likelihood of infection to vulnerable members of the child’s family and household, such as grandparents and those who may have underlying health conditions.

Where Agreement can be reached

  1. If parents and carers are able to reach an agreement on new or temporary parenting arrangements, they should put the terms of this agreement in writing in a document, or otherwise by email, text message or Whatsapp message. This is particularly important for parties who are presently involved in or likely to be involved in later family law hearings.
  2. If parties wish to formalise their agreement as orders, they have the option of putting consent orders to the Court electronically by filing them with an Application for Consent Orders. We are able to assist parties in formalising the terms of consent orders for this purpose.

Where parties are unable to reach agreement

  1. Parties who are not able to agree to vary parenting arrangements, or it is not safe for them to do so, are advised to keep children safe until the dispute has been resolved. Parents in this situation should take steps to ensure that each parent or carer continues to have some contact with the child/ren consistent with the parenting arrangements such by video conferencing, social media or by telephone.
  2. Where orders cannot be strictly adhered to, it is important that parties ensure the purpose or spirit of the orders are respected when considering altering the arrangements and that parents and carers act in the best interest of the children at all times.
  3. If parties cannot agree to alternate arrangements, or it is unsafe to do so, and one or both parents have real concerns, parents still have the option to make an application to the Court electronically to seek a variation of orders.

If you have concerns about implementing or abiding parenting arrangements in the context of the COVID19 pandemic, our team of highly qualified family lawyers are here to assist you. We have adopted measures to ensure that we continue to be able to provide tailored advice while prioritising the health and safety of all of our clients and their families during this period.

We are able to provide fierce representation in contested Court hearings where required, but also pride ourselves on reaching swift, amicable agreements for parenting arrangements through:-

  1. Mediation;
  2. Arbitration; and
  3. Collaboration with peers.

Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about your parenting arrangements.  Please get in touch with us on (02) 9929 8840 or mail@dorterfamilylawyers.com.

Lauren Sanderson

Solicitor

Rebekah Dorter

Principal

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.