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Family Law and Family Pets
August 20th, 2021 | by newwaylawyersWhether they’re furry, feathery or otherwise, pets provide fun, joy and companionship for the whole family. But what happens to the family pet following separation?
The law around pets and separation
The emotional attachment with our pets means we think of them as family members rather than as mere possessions. Unfortunately though, the law in Australia does not reflect this sentiment.
No custody arrangements for pets
The Family Law Act deals with pets as personal property, in the same way it deals with other personal property like cars and furniture. This means the family pet will be kept by one person and there is no provision for pet custody arrangements, unless an agreement for this can be reached.
Are pets considered an asset in the property pool?
Although pets are considered as personal property normally they are not assigned a monetary value like other assets. However, in certain situations where a pet has a pedigree or where a pet is used for breeding or competition then a financial value may be assigned. This was the situation in a case called Walmsely & Walmsley. The Court held that the pedigree pets were worth $3,000. The wife retained the pets and they were counted as an asset retained by her.
What to consider when making arrangements for a pet
It is always best for separating couples to try to reach an agreement about who will retain the family pet rather than resorting to legal proceedings. In making appropriate arrangements for the pet, consideration should be given to the following:
- which person has the most suitable living arrangements and lifestyle for accommodating the pet;
- the bond between the pet and the children and how this can be best maintained;
- who has the financial means to meet the ongoing costs of maintaining the pet.
What if the separating couple cant agree on who the pet is to live with?
If an agreement can’t be reached about arrangements for the pet and a Judge decides who will retain the pet, a range of factors will be considered including:
- when was the pet purchased;
- who purchased the pet and the circumstances of the purchase, for example was it a gift to one of the parties;
- who is the registered owner of the pet;
- who was the main carer for the pet during the relationship, for example who fed the pet, took them for walks and took them to the vet;
- who was responsible for the financial for the pet;
- who has been caring for the pet since separation;
- who has the best ongoing capacity to care for the pet considering living arrangements, lifestyle and financial means;
- the bond between the parties and the children; and
- how the pet arrangements impact the separation broadly.
The above information is intended to provide general information about how family pets are treated in family law matters and does not represent legal advice. If you would like legal advice about family law matters please call New Way Lawyers on 07 3548 5868 or join our free facebook Lunch with a Lawyer where you can ask your questions for free each lunch time.
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Embracing and dealing with change after separation and divorce
August 12th, 2021 | by newwaylawyersWhat’s normal to feel during a significant life change like separation/divorce?
Separation or divorce can turn our life and often our long term dreams upside down. It is a pivot in our personal life, which is a fundamental change in our life strategy that can bring you to the depths of despair and loneliness. We can experience waves of emotions such as angry, sad, anxious, hurt, embarrassed, happy and relieved. It is a new world for many to feel or even face and deal with these emotions that they may have never felt before.
‘Change is hardest in the beginning, messy in the middle and best at the end ‘– Robin Sharma.
What are the stages of change that someone might experience?
Addressing the stages of change in a healthy way often looks like this:
1. Start where you are by expressing the event, feel the pain, name it, own it and understand and be gentle with your emotions.
2. Assess and take stock of where we are now at, and learn the stages of grief so you can feel supported as you understand that you will have to go through the stages, and then develop your immediate survival plan.
3. Change continues on as you start the healing journey and once ready, you are able to start and plant some new seeds as you find your new normal.
How do you navigate these stages of change in light of separation?
- Stage 1 – Recognises and Respond – Stop and breathe, acknowledge your feelings and fear, embrace grief and choose your story
- Stage 2 – Restore and Recover – Sink into self care, renew and refuel, open the path to positivity and relinquish the past – know that you have got this
- Stage 3 – Redirect and Reset – Rebuild your foundation, plant new seeds, create a new roadmap with fresh vision for your life and start being the change you wish to see
- Stage 4 – Rejoice and Radiate – Embark on the journey, Embrace some joy again, claim back your personal power and celebrate your new wins.
What journaling questions can help during this time?
Journaling brings you back to you to discover what is most important and to unpack the feelings you are experiencing.
- What are your fears?
- What are you looking forward to?
- What are you learning about yourself?
- What are you grateful for today?
- What are you most proud of?
- Where do you see opportunities for improvement in your life?
- Write down one regret and lesson learnt for yourself?
- What do you need now to be content?
- What can you change right now that you are in control of?
- What affirmation will support me most right now?
- Write down 3 ways you are going to take care of yourself?
Is it possible to come out of a situation feeling 100% at peace?
Yes it is. The most important relationship we have in the world is the one we have with ourselves. Loving ourselves, treating ourself like we would a best friend as happiness is an inside job.
You can read more about getting your mental health back on track after separation here.
About the author
Shannah Kennedy is an advanced certified coach and NLP practitioner and author of the newly released book ‘Plan B’. It’s an honour to have Shannah share with us her tips for navigating change because we are well aware of how life changing separation is. We hope this insight helps guide you to a healthy way to navigate your separation journey as you look to your future life, filled with hope.
A compassionate and caring approach to family law
Our client care program looks to equip clients with similar information and support throughout separation and difficult family matters.
If this compassionate and supportive approach to separation and divorce is of interest to you as you navigate the legal system, please do not hesitate to reach out to our team of experienced lawyers for a free 20 minute consultation with a family lawyer.
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When will the Court vary final parenting orders? (Rice v Asplund test)
August 8th, 2021 | by newwaylawyersThe Court will vary final parenting orders only in limited situations, where there has been a significant change in circumstances of the child or the family, or if it would be in the best interests of the child. If the Court decides to re-open a matter, this will likely result in fresh proceedings and new Orders being made upon the hearing of the issues in dispute.
The Rice v Asplund test
The case of Rice v Asplund (1979) set a threshold test for ascertaining whether or not a Final Order can be changed. In Rice v Asplund the Court ruled that before revising final parenting orders, it needed to be satisfied that there had been a significant change in circumstances since the order was made, or some material factor not disclosed at the earlier heading, which would justify “such a serious step”.
The rationale behind the rule
Chief Justice Evatt stated that the Court: “…should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever present factor in human affairs .” This rule was created to protect children from being exposed to the uncertainty of ongoing litigation. This intent was further expressed in Freeman (1986) where Strauss J commented on the certainty of orders and the importance of supporting them to encourage “stability in the lives of children … an essential prerequisite to their well-being”. This ruling was a manifestation of the best interests of the child principle, as outlined in the Family Law Act (1975).
What is a significant change of circumstances?
What amounts to a significant change in circumstances depends on the individual situation. In some situations, an event or occurrence may amount to a significant change in circumstances but in another situation the same type of event or occurrence may not.
Some examples where the court has determined there to be a significant change of circumstance include:
- A party is seeking to relocate with the children;
- The parties have since consented to new parenting arrangements (e.g. entered into a parenting plan) and therefore, the current orders are no longer reflective of the actual arrangements for the children;
- A substantial period of time has elapsed between the final orders being made and the application being brought;
- One or more of the parties has re-partnered;
- There has been abuse of the children;
- A party to the proceedings or the child is in ill-health.
- The current orders were made without all the relevant information being before the court.
Other specific examples include:
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- Psychological and physical changes in children as they grow up;
- The child has matured and changed their views on the current parenting orders;
- A parent has, by their own choice, spent no time with the children for over a year;
- A parent’s employment has changed, and they are able to spend more time with the children; and
- Conflict between the parents has risen to the point where the current orders are unworkable.
Book your free 20 minute consultation with one of our experienced family lawyers today on (07) 3548 5890.
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What is a family report in family law?
July 5th, 2021 | by newwaylawyersWhen parties are unable to reach an agreement about the care arrangements for the children a family report may be written to assist the Court in making a decision about what is best for the children. The report is written by an independent family consultant who is a qualified social worker , psychologist, or psychiatrist with skills and experience in working with children and families post separation. They provide an assessment of the issues in the case, with the child’s best interests as the focus of this analysis.
Who engages and pays for the family report writer?
Usually, the Court will order the report (pursuant to section 62G of the Family Law Act 1975) from a Court Child Expert, although the parties may privately engage a consultant, either prior to court proceedings or during court proceedings.
The court can fund the report at no cost to the parties or alternatively sometimes the Court may order the parties contribute to the cost if they have the means to do so. Private family reports are always paid for by the parties.
How does the report writer gather information for a family report?
The family consultant through individual interviews gathers information from the parties, the children and other significant family members. Children can express their own views and wishes if they would like to. Usually interviews are completed at the office of the family consultant, not at the home of the parties.
The consultant might also observe the child’s interactions with parents or other important people (like grandparents, partners, siblings and step or half siblings).
What information will the family consultant need to prepare the Family Report?
The family consultant may request your permission to contact teachers, doctors or other relevant professionals for more information about your child/ren. The Court may also direct that the family consultant have access to any material that has been filed with the Court or provided to the Court by subpoenae.
What happens after the interviews and observations?
The family consultant will collate relevant information they have gathered in the family report. All the parties will receive a copy of the family report. Sometimes, matters may settle as a result of the findings in the family report and the parties may agree to consent parenting orders.
If the matter proceeds to hearing, the consultant may be required to give evidence in Court.
Who will see the family report?
Once the report writer has finished writing the family report, a copy will be given to:
- the court
- the independent children’s lawyer (if one has been appointed)
- you or your lawyer (if you have one)
- the person you are in dispute with or their lawyer (if they have one).
No one else will be given or shown a copy of the report, unless an order is made by the Court allowing the report to be provided to another person or organisation; this is protected under s121 Family Law Act 1975.
What if I don’t agree with the Family Report?
It is important to remember that this is not the only evidence the court will consider. The Court is also not bound by any recommendations made in the report. This evidence can be challenged at court by cross-examining the report writer and asking them questions about the contents of the report. Other parties will have the same opportunity to do this if they are called as witness.
If you would like to discuss your specific situation further with our experienced team of family lawyers, please contact us here or phone (07) 3548 5868. -
What is the role of an independent children’s lawyer?
June 15th, 2021 | by newwaylawyersAt the heart of family law policy is that the children’s best interests are protected in any parental dispute. One way that legislation provides for this is through the use of an Independent Children’s Lawyer (ICL). The Court appoints an ICL and their role is to represent the children’s best interests and they can be ordered to find out the child’s views on the matter to which the proceedings relate.
Who can request an Independent Children’s Lawyer be appointed to a case?
Section 68L of the Family Law Act 1975 allows for the Court to appoint an ICL on the application of:
- a child,
- an organisation concerned with the welfare of children or
- any other person, to represent and promote the best interests of a child in family law proceedings.
When will the Court appoint an ICL without application by one of the parties?
When more of the following circumstances exist the Court will often appoint an ICL:
How does the ICL determine what is in the children’s best interests?
What is a family report and do I need one?
If required, a family report may be organised by the independent children’s lawyer or ordered by the Court. This is an independent report prepared by a Court appointed family consultant to assist the judge to make decisions about the child/ren or the parties to reach an agreement.
Who pays the costs of the ICL?
The Legal Aid Authority in the state or territory where court proceedings are being heard will normally pay most of the costs associated with the appointment of the ICL. However, the court also has the power to make an order that one or both parties contribute to the costs of the ICL, based on their individual financial capacity.
If you would like to know more or are considering engaging a lawyer for your family law matter, please contact us on (07) 3548 5868 or contact us here.
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How is Spousal Maintenance determined?
June 3rd, 2021 | by newwaylawyersWhat is spousal maintenance in Australia?
When a marriage or de facto relationship breaks down, it may be that one party will be unable to meet their financial needs An ongoing obligation may arise for the other party to pay financial support, regardless of separation. This payment is known as spousal maintenance or also spousal support. Spousal maintenance can be paid by regular payments, also known as periodic payments, or by a lump sum payment.
Are you eligible to claim spousal maintenance?
The test in relation to spousal maintenance arises under s 72 of the Family Law Act. Follow this flow chart to understand the test. .
Some case examples
In the case of Hall v Hall [2016] HCA 23, the High Court decided whether a wife was entitled to spousal maintenance from her husband. The wife had access to an annual payment of $150,000 under her late father’s will, however she argued that this was uncertain and subject to the discretion of her brother who was the executor of the estate. The High Court decided that she could access this money if she asked her brother and therefore had no need for spousal maintenance.
In Askew v Vargo [2019] FCCA 2221, the Court determined whether a wife should be granted spousal maintenance in circumstances where she had $114,000 in cash savings, $300,000 in a term deposit and $113,000 in a share portfolio. The Court found that while you don’t need to depleted capital or assets to qualify for spousal maintenance, in this case the wife had substantial assets to support herself meaning she was not entitled to spousal maintenance.
How can you to apply for spousal maintenance?
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Agreement between the parties
It is best to try to resolve issues surrounding spousal maintenance by agreement, without resorting to the court process. If an agreement is reached it can be formalized by way of a Binding Financial Agreement or Consent Orders. It is however important to know that spousal maintenance claims do have time limits.
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Court application
Can you claim spousal maintenance after separation or divorce?
Yes. The Application must be filed with the Court one year following divorce for married couples, or for de facto couples, two years following separation.
Can spousal maintenance be backdated?
The parties can privately agree to backdate spousal maintenance prior to court proceedings, but generally, the Court will not backdate a spousal maintenance order to start on an earlier date. Spousal maintenance can only commence on the day that an order is made.
Documentation
Where an agreement cannot be reached and an application to the Court has to be made, the person seeking spousal maintenance will need to file an Application, Affidavit and Financial Statement in the Federal Circuit Court of Australia.
How is spousal maintenance calculated?
If a spousal maintenance claim is successful, consideration will be given to how much financial supportis appropriate. The Court will look at the financial needs of the person in need of support and the financial capacity of person required to pay.
Seek personalised legal advice
Individual situations vary and no two cases are exactly alike – that is why it is important for anyone that may be undergoing separation to seek tailored legal advice from one of our highly-skilled family lawyers. New Way Lawyers offers a Facebook group called ‘Lunch with a Lawyer’, where we answer your questions for free each lunch on weekdays.
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