Pets are very often more than just pets, they are members of our families whom we love and cherish just as we would any other family member.
What happens if a couple with a cherished pet separates? Who gets “custody” and can “visitation rights” be organised for the “non-custodial” owner?
The Family Law Act 1975 does not make any specific provision for pets and it may pain some people to learn that the Family Courts do not treat pets any differently than they do ordinary property. Judges will be reluctant if not loathed to enter into any debate about who gets to keep the beloved pet and they certainly won’t entertain arguments about “visitation rights”.
If you are contemplating separating and you have a beloved pet then I suggest that you ensure that at the time of separation you do what is practicable and necessary to ensure that your pet remains in your possession. When it comes to pets, the old saying “possession is nine tenths of the law” rings true as invariably the person that retains ownership of the family pet at separation, retains it in the longer term.
If you find yourself in the unenviable position of being the party separated from your beloved pet, then I don’t advise that you go and retrieve it without agreement of the other party because you may be committing an offence of theft and or trespass.
If the pet is registered under your name with the local Council then you should ensure that that fact is recognised and emphasise that at the time of separation when the issue of where your pet will go. If you are the registered owner and you find yourself separated from your pet, then this fact may be used to recover it.
Whilst the Family Courts will not likely entertain any argument over “custody” and “visitation rights” of pets, this does not mean that two separating or separated parties can’t work out an arrangement amongst themselves that suits both of them.
If there are also children, it may practical that the pet travels with the children between homes. If there are no children, then such arrangements will usually only work if the parties maintain a civil relationship with each other after separation.
At AK Family Law we can help you negotiate an arrangement with your former partner when so many other lawyers would otherwise brush the issue under the carpet.
The Child Support system has been set up by the federal government to provide a legal mechanism to enforce what is otherwise a parent’s moral obligation to provide financial support for their children, at least until the child turns 18.
So what is it for? Child Support covers expenses for children such as food, housing, clothes, school costs and other activities. Parents are otherwise generally required to each bear the costs of raising their children when they are in their care.
How is it calculated? The Child Support Agency (“CSA”), follows a mathematical formula into which a number of variables are inserted to work out how much child support should be paid.
What variables or factors affect how much child support is paid? The different variables that are used in the mathematical formula include:-
- The number of children the payer and payee parent has;
- How old the children are,
- the income of each of the parents, and
- the amount of time each parent cares for the children.
The payer parent can offset child support payments by making direct payments to third parties. It is important to note that this can only occur if there is agreement between the parents, or under limited circumstances if there is no agreement upon application to the CSA.
What third party expenses can be credited towards my child support obligation? Well firstly only certain “prescribed expenses” of up to 30% of their cash child support liabilities can be credited.
The “prescribed expenses” include:-
- School uniforms and prescribed text books.
- Child care payments;
- Medical and dental expenses.
- School fees;
- Housing expenses such as rent or bond payments and even mortgage repayments;
- Motor vehicle costs.
What if I don’t think the assessment is fair? You can apply to the CSA to change a child support assessment due to special circumstances.
Such special circumstances may include:-
- If the cost of spending time with your child is significant (e.g. if the parents live a a long way from each other and in order to see them expensive airfares need to be paid for)
- The child needs extra attention (e.g. the child needs braces or the child has other special needs)
- Any prior agreement of the parties (e.g. if the parents have previously agreed the child should attend a private school or engage in another expensive extracurricular activity)
- The assessment does not properly reflect one or both parent’s capacity to pay child support. This often occurs where one party’s taxation return (upon which child support is often assessed) does not truly reflect their actual income.
If you have an issue with Child Support, we can help.
1 – Terminology used
Terms such as “child custody”, “child access”, “sole custody”, “joint custody” and “visitation” have been replaced with “lives with”, “spends time with”, “primary parent” and “primary carer” respectively.
2 – It’s not about the parents
The intention of the Family Law Act 1975 is to ensure that the best interests of children are met, not what is in the best interest of the parents. So whilst you might think that a 50/50 shared care arrangement is fair for you, it is not necessarily in the best interest of your child
3 – Parental responsibility does not mean time
There is a presumption that both parents have equal parental responsibility. Parental responsibility does not mean equal time. Parental responsibility is the ability for parents to make serious long-term decisions for the child/ren such as what school they go to, their religious upbringing or medical treatment and the like.
Just like any presumption, it can be rebutted.
4 – FDR is compulsory
FDR stands for Family Dispute Resolution (“FDR”) which is sometimes called mediation.
If you can’t work out an arrangement with the other parent yourself, then before you can issue proceedings in the Family Court, you must attempt FDR.
Should you and the other parent fail to reach an agreement at FDR or if the FDR practitioner (Mediator) feel that FDR is not appropriate, then you will be issued with a certificate.
Unless you have a good reason, like family violence or urgency, the Court will refuse to accept an application unless it accompanied with a certificate issued by a FDR practitioner.
5 – You’re not alone
There are many groups and community organisations that are there to help parents who are having a difficult time or who are struggling with the Court process.
Search the internet for Mums or Dads support groups. Attend a post separation parenting course put on by someone like Anglicare. There is a good chance that someone else has or is going through what you are going through. You just have to ask for help.
Your lawyer should be able to direct you to these various bodies and organisations that can help in your area.
So you have separated from your spouse. You don’t know what happens next but you know you want a divorce. Well what is a divorce? In Australia a Divorce is simply the legal dissolution of a marriage by a court or other competent body. In Australia a divorce can only be applied for after you have been separated for at least 12 months.
Getting a divorce is quite different to getting a property settlement. A property settlement can and should be considered early in a separation, even before you are eligible to apply for a divorce.
The first step in the process will be to gather whatever documentation you can to establish what assets are owned by you and your partner as well as what liabilities there are.
The first step in the divorce process therefore would be to gather up as much of the relevant documentation as possible. Once you have that information you can then create a schedule of the assets and liabilities of each of you and you. Once you have this schedule you should take it to a lawyer for more detailed advice on your entitlements. Here at AK Family Law we offer an obligation free first appointment for all family law matters.
How can you work out what you are entitled to if you don’t know what the pool of assets are?
If you don’t know what the assets are, or if you can’t get your hands on documentation, then don’t worry, a good family lawyer will know what to look for, and how to get it.
So what documents should you look to gather? The list below is a good start:-
- Marriage certificate;
- Birth certificates of any children;
- Copies of the latest bank or credit union statements;
- Details of all shares and or other investments;
- Yours and your partners income tax returns for at least the last financial year;
- The last years taxation returns or financial statements for any trust or company that you and or your husband are involved in;
- Statements from Centrelink showing pension payment details;
- Your latest superannuation member statement for each of yours and your partners super funds;
- Any appraisals for any real estate that you own;
- Any trust deeds or company constitution;
- The settlement statement for the purchase of any real estate each of you may own;
- The registration documents for any motor vehicles;
- Details of any inheritances either of you may have received during the relationship
- Details of any compensation payments each of you may have received during the relationship or be entitled to;
- Any medical records which may indicate a diminished ability to work.
The first step in the divorce process, once you have separated, or know you are going to separate would be to gather up as much information about the financial position of not only yourself but your former partner.