inheritance family law

Inheritance family law property settlement

Family Lawyers Brisbane City, Brisbane Family Lawyers, Child Custody Lawyers Brisbane

Nature and Requirements of a Parenting Plan

If you are struggling with care arrangements for your child post-separation, you should consider a Parenting Plan (or where necessary, a consent order). Our Family Lawyers Brisbane, explain what a Parenting Plan is and how it works.

What is a Parenting Plan?

A Parenting Plan is a written agreement between the parents of a child, regarding matters affecting their children and made free from coercion, threat, or duress.

Although a Parenting Plan may refer to persons other than the parents of a child, they can only be signed by the parents of a child. Arrangements then for a child to spend time with a grandparent or for a grandparent to share or have parental responsibility for a child, cannot be formalised by a Parenting Plan without the consent and agreement of the parents. If parents will not provide consent, then a grandparent would need to seek orders of the Court providing for arrangements of this kind involving them.

Section 63C(2) of the Family Law Act 1975 (Cth) provides that a Parenting Plan may deal with any of the matters specified in that section, which include:

  • The person/s with whom a child is to live;
  • The time that a child is to spend with another person or other persons;
  • The allocation of parental responsibility for a child (parental responsibility may be made in favour of a parent or any other person, including a grandparent);
  • If two or more persons are to share parental responsibility for a child, the form of consultation those persons are to have with one another about decisions to be made about the exercise of that responsibility;
  • The communication that a child is to have with another person/s;
  • Maintenance of a child;
  • The process to be used for resolving disputes about the terms of or operation of the plan;
  • The process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;
  • Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for the child.

Section 63CAA provides that an agreement may be both a Parenting Plan and a child support agreement.

Lawyers’ obligations

A lawyer is obliged to inform clients that they could consider entering into a Parenting Plan and where they can obtain assistance to do so and the content of the plan (section 63DA(1), Family Law Act 1975 (Cth)). The lawyer may provide that assistance but if they do so, the lawyer must inform the client of the matters set out in section 63DA(2).

Section 63DA(2)of the Family Law Act 1975 (Cth) provides in effect that, where advice is given to a parent about a Parenting Plan, the lawyer must:

  1. Inform the parent that, if the child spending equal time with them is:

(i) reasonably practicable;

(ii) in the child’s best interests,

they could consider the option of an arrangement of that kind.

  1. Inform the parent that, if the child spending equal time is not reasonably practicable or is not in the best interests of the child but the child spending substantial or significant time with each of them is:

(i) reasonably practicable;

(ii) in the child’s best interests,

they could consider the option of an arrangement of that kind.

  1. inform the parent of the matters that may be dealt with in a Parenting Plan in accordance with Section 63DA(2)of the Family Law Act 1975 (Cth).
  2. inform the parent that, if there is a parenting order in force, the order may include a provision that it is subject to a subsequent Parenting Plan.
  3. Where parents are to share parental responsibility, inform them about the desirability of including in the plan, provisions dealing with the way they will avoid future conflicts and misunderstandings, the process for future dispute resolution and the process by which the plan may be changed in the future to take account of the changing needs or circumstances of the child or the parties to the plan.
  4. Explain to them, in language they are likely to understand, the availability of programmes to help with any difficulties experienced in relation to Parenting Plans.
  5. Inform the parent that section 65DAB of the Family Law Act 1975 (Cth) requires the court to have regard to the terms of the most recent Parenting Plan when making a parenting order in relation to a child, if it is in the best interests of the child to do so.
Family Lawyers Brisbane City, Brisbane Family Lawyers, Child Custody Lawyers Brisbane

Family Lawyers Brisbane City

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Can a Parenting Plan be registered?

A Parenting Plan could be registered with the court until 2003 but not since that time.

Can a Parenting Plan be altered and if so, how?

A Parenting Plan may be altered by a subsequent agreement made in writing, between the parties to the original agreement (ie. by the parents of a child).

Can the terms of a Parenting Plan be enforced?

Parenting Plans are not of themselves enforceable although the Court is required to take the existence of a Parenting Plan into account in proceedings concerning contravention of court orders. (Refer section 70NEC, Family Law Act 1975 (Cth)).

What next?

If you want to learn more about Parenting Plans, Consent Orders, arrangements for your children or child custody, you can read our resources here.

For tailored legal advice, contact our Family Lawyers at LGM Family Law. Our staff have the experience and dedication to help you achieve the best possible outcome available for you and your family. Contact our Family Lawyers in Brisbane City or Northside today, and receive a complimentary 15-minute call. We also offer fixed-rate initial consultations where you can obtain more detailed advice for your particular circumstances.

We can help you navigate this difficult time, and give you the confidence to move forward in life. LGM Family Law is Brisbane-based, with two convenient locations: Brisbane CBD and the Grange.

Contact us on (07) 3506 3651 for more information.

 

debt of a party to a marriage Brisbane family lawyers

Discussing HECS Debt with my Divorce Lawyers

Do I Have to Share Liability for my Former Partner’s HECS Debt?

Should I Discuss HECS Debt with my Brisbane Divorce Lawyers?

When talking to your Brisbane Divorce Lawyers, it is important to discuss all assets and liabilities. This includes HECS debt that you or your former partner have incurred. Depending upon your circumstances, you may have to include that debt in the asset pool to be divided in your property settlement.

Why is HECS Debt Relevant?

Many couples start their relationship while they are both studying, accruing debt along the way. During the relationship, one partner may pay off a HECS debt after he or she starts earning the minimum amount of prescribed income, at which point HECS debt becomes repayable. At the end of the relationship, the other partner may still have a HECS Debt.

For couples who have separated, the way in which a HECS obligation is treated in a property settlement can become a vexed issue. Should the party who incurred the obligation be solely responsible for the debt or should that HECS be treated as a joint liability?

If it is treated as a personal liability of one party, the other party will not generally have to share the burden of the HECS Debt in the property settlement.

If it is treated as a joint liability of the parties, it will be included in the asset pool to be divided, effectively then reducing the net assets that can then be divided between the parties.

Personal Debt

In the case of Mullins & Birchmore, the court found that it would be unjust and inequitable in the circumstances of the case to require the wife to contribute to the husband’s repayment of a HECS debt.

The husband was wanting orders so that the wife would pay 70% of the debt, which included credit card debt and HECS debt. In this matter, the court considered that the husband had been the beneficiary of his studies, whilst his wife at the time had worked to support him and the children while he was doing his studies.

The court noted that the husband’s evidence was that he would no longer earn an income from his qualification and that he was intending to be a student for another four or five years. The wife and children had only received some benefit from his qualifications for period of two and a half years and the wife had assisted the husband in paying off another prior HECS Debt. Finally, the husband would not need to pay off his HECS debt until he earned the minimum amount of income prescribed. Given these factors, the court determined that the wife should not have to contribute to repayment of the husband’s current HECS debt and that that debt was the husband’s personal debt.

The Court made orders so that each party retained all assets, liabilities and superannuation entitlements in their respective names.

Joint Debt

A HECS debt was found to be a joint liability of the parties in Berry & Berry, where the wife undertook studies with the husband’s agreement. The court was satisfied that immediately following the completion of her studies, the wife obtained employment in line with her newly acquired tertiary qualifications. From the time that she obtained that employment until the end of the relationship, she was the primary and almost sole income earner for the family.

Contact LGM’s Divorce Lawyers Brisbane

If you are needing family law advice regarding a HECS debt or other advice to resolve your family law matter, contact LGM’s Divorce Lawyers Brisbane and one of our experienced family law solicitors will be happy to assist you.

Family Lawyers Northside, Family Lawyers Brisbane Northside, Family Law Brisbane

How Can I Prove Parentage of My Child?

Parentage of a child can sometimes be the subject of dispute and require determination in family law proceedings. Read on to learn more from our experienced Family Lawyers Brisbane Northside.

Usually, it is clear who is the mother of a child. Where there is a dispute, it may arise as a result of an alleged fraud on the part of the woman who asserts she is the mother or where an alleged parent claims that the alleged mother was given the wrong baby at the hospital following a child’s birth.

Evidence will normally exist however to establish maternity, for example from those who were present at the birth.

Establishing paternity can be more difficult.  The common law developed a presumption of paternity such that a child was deemed to be the child of its mother’s husband where the child was either conceived or born in wedlock unless at the time of conception the spouses were subject to a certain decree or order relation to separation. However, those decrees or orders are no longer available under the Family Law Act 1975.

The Family Law Act 1975 sets out certain presumptions of parentage, including presumptions concerning children who are born as the result of artificial conception procedures. Whilst it is not clear whether the presumptions set out in the Act is intended to exclude the operation of the common law presumption of paternity or presumptions under State law, it seems clear that the parentage presumptions set out in the Act are intended to apply for all purposes of the Act.

Family Lawyers Northside, Family Lawyers Brisbane Northside, Family Law Brisbane

Family Lawyers Brisbane Northside

The presumptions under the Family Law Act 1975 include:

  1. Presumption of parentage arising from marriage: Under section 69P of the Act a child is presumed to be a child of both a woman and her husband if the woman gives birth to the child, whilst she is married; within 44 weeks after the marriage is terminated by death or annulment or where after parties to a marriage separate, the parties had again cohabited on one occasion for a period of less than 3 months and the child is born within 44 weeks after the end of the cohabitation, but after the divorce of the parties. The presumption can be rebutted by proof established on the balance of probabilities;
  2. Presumption of paternity arising from cohabitation: Under section 69Q of the Act, a child is presumed to be the child of a man if the child is born to a woman who, at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, has cohabited with that man and the concerned woman and man were not married. The presumption can be rebutted by proof established on the balance of probabilities;
  3. Presumption of parentage arising from parentage information being entered in a register of births or a register of parentage: A parentage presumption applies under section 69R of the Act where a person’s name is entered in either a register of births or a register of parentage information as being the parent of the concerned child. The register must be one that is kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction. The presumption can be rebutted by proof established on the balance of probabilities;
  4. Presumption of parentage arising from a judicial finding: A judicial finding that a person is a child’s parent will give rise to a presumption of parentage under section 69S of the Act where the finding was made by an Australian court or a court of a prescribed overseas jurisdiction and provided that the finding has not been altered, set aside or reversed. The presumption of parentage created by a judicial finding after a person’s death can be rebutted by proof established on the balance of probabilities but a presumption of parentage created by such a finding during a person’s lifetime is not;
  5. Presumption of parentage arising from an instrument having been executed which acknowledges paternity: A man will be presumed the father of a child under section 69T of the Act if he has executed an instrument acknowledging that he is that child’s father; that instrument has not been annulled or set aside and it was made under the law of the Commonwealth, a state or territory or a prescribed overseas jurisdiction. The presumption can be rebutted by proof established on the balance of probabilities.
  6. Presumption of parentage in relation to artificial conception procedures: Section 60H of the Act establishes the following presumptions of parentage where a child is born as a result of carrying out an artificial conception procedure.  It seems that these presumptions are conclusive as there is a provision in the Act regards rebutting these presumptions:
  • Under sections 60H (1) of the Act, a child is presumed to be the child of both a woman and her partner regardless of whether the child is biologically their child if the artificial conception procedure was carried out while the woman was either married or living in a de facto relationship with that partner and the procedure was carried out either with the consent of the woman and her partner, or according to a prescribed law of either the Commonwealth, the state or a territory, the child is a child of the woman and her partner;
  • Under section 60H(5) of the Act, a person is presumed for the purposes of section 60H(1) of the Act to have consented to an artificial conception procedure unless it is proved on the balance of probabilities that the person did not consent;
  • Under sections 60H(2) and 60H(3) of the Act, a child is presumed to be the child of a woman or a man if, the child is born to the woman as a result of the carrying out of an artificial conception procedure and whether or not the child is biologically a child of the woman or the man, according to a prescribed law of either the Commonwealth, a state or a territory, the child is the child of  that woman or that man.

What next? | Family Lawyers Brisbane Northside

If you need assistance to establish the parentage of a child, contact our family lawyers Brisbane Northside for advice tailored to your circumstances and move forward with us to resolve your matter. We have two convenient locations in Brisbane; the CBD and at the Grange.

If you would like to learn more about our experienced team of Family Lawyers Northside, you can visit our Team Page. Or, for more resources on parenting and child custody, see our page here.

No matter your situation in family law, our team of family lawyers Brisbane Northside are here to help. Our team is dedicated to helping you reach the best possible outcome for your situation, giving you certainty to move forward in life.

Family Lawyers Brisbane

Child Abuse and Unacceptable Risk

Child abuse can be closely linked to domestic violence and is a common cause of parental separation. However, child abuse does not necessarily cease as a result of a separation.

Family law proceedings will often follow a separation where a parent seeks to protect a child from being abused, whether by the other parent or another family member.

Under the Family Law Act 1975, abuse in relation to a child is recognised to extend beyond child sexual abuse and encompasses emotional and psychological abuse and neglect of a child.

Abuse, in relation to a child is defined in section 4 of that Act to mean:

(a) an assault, including a sexual assault, of the child; or

(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

The High Court of Australia in B and B (1988) FLC 91-978 and in M and M (1988) FLC 91-979 determined the test to be applied when the Court is considering whether or not to grant a party custody or access (these days considered in terms of “living with” and “spending time and communicating with”) in cases involving allegations of child sexual abuse. The family courts will not make an order providing a parent with custody of or access to, a child “if that custody or access would expose the child to an unacceptable risk of sexual abuse” (M and M, at p 77,081).

Unless the court is satisfied on the civil standard of proof, the court need not make a positive finding as to whether the alleged sexual abuse occurred or not.

The “unacceptable risk” test is applied by the courts in determining where a child lives and with whom a child spends time as well as conditions which apply whilst a child is in the care of or spending time with a parent.

Family Lawyers Brisbane

Family Lawyers Brisbane

The test requires that the Court assesses the “chances” of the risk occurring and the magnitude of potential harm if it did occur. The Court must consider then the advantages and detriments of the child living with or spending time with the concerned. The nature of the risk must be identified as well as the degree of risk that may occur and the harm that may be caused for a child if it did occur. The Court must evaluate the risks and the options available, all in the context of what is in the best interests of the child.

Where the court makes a finding of unacceptable risk, the primary care of a child may be changed. The court may also make interim orders in case of alleged child abuse, including various terms and restrictions to ensure that the child’s best interests when spending time with a parent.

However, the courts are slow to totally exclude even an abusive parent from a child’s life. Instead, in appropriate cases, the court will often put in place protective measures to apply whilst the child is spending time with a parent, such as supervised time at a contact centre. It is not the role of the court to punish a delinquent parent or to concern itself with justice to the “innocent parent”.

The courts’ concern is with what is determined to be in the best interests of the child. Best interests can often lie in giving the opportunity for restoring the relationship between parent and child and ensuring that conditions are in place to ensure that that may occur in a safe environment for the child.

What next? | Family Lawyers Brisbane
If you have concerns regards abuse of a child and protecting that child post separation, contact LGM Family Law and speak to one of our experienced Brisbane family lawyers about what steps can be taken to best ensure the safety of the child. Call us today for a complimentary 15-minute phone consultation on (07) 3506 3651.

Whether you’re located in Brisbane or elsewhere in Australia, our Family Lawyers Brisbane can help you. We can guide and support you through the complexities of family law to help you move forward in life. To learn more about our team of Brisbane Family Lawyers, view our Team Page here.

Family Lawyers in Brisbane

Family Lawyers in Brisbane and Your Share of Inheritance

Property Settlement Orders Made Years After Separation

Property Settlement Orders After Separation

Property Settlement Orders After Separation

If you separated from your former partner many years ago but never made a property settlement, you may be wondering if it is too late now to obtain a settlement. Depending upon your circumstances, it may still be possible.

  1. In the case of married couples, if you have already obtained a final divorce order, more than 12 months has passed since that order became final and your former partner does not consent to proceedings; or
  2. In the case of a de facto couple, if more than 2 years has passed since the end of the relationship, you will first have to obtain leave of the Court for any property application to be heard by the family courts (assuming that for a de facto relationship, your relationship broke down on a final basis after 1 March 2009).  If leave is granted, it will be for the Court after identifying the property of the parties to determine whether or not it is just and equitable in the circumstances of the parties that an order be made altering the interests held by you and your former partner in property.

Property Settlement Orders Made Years After Separation

 

If you don’t yet have a property settlement, contact our Family Lawyers Brisbane who will be happy to advise you regards your entitlement.  Obtaining that entitlement is essential for your financial future.

In the meantime, our starting point for considering whether the Court will make an order for the division of property is the 2012 case of Stanford & Stanford in the High Court of Australia. The Court  considered whether an order altering property interests of parties should be made where the marriage between the husband and the wife was intact but they were separated as a result of the wife living in an aged care facility.  The application for property settlement had been filed by the wife’s case guardian. The parties had lived as a couple in a home registered in the husband’s name for 40 years and the husband continued living there after the wife entered the aged care facility.  That home was the only significant asset of the parties.

The husband had set aside funds to provide for the wife’s care.

The High Court determined in that case that it was not just and equitable to make any order altering the parties’ interests in property. The Court noted that where separation of parties is not voluntary, the bare fact of separation does not demonstrate that the husband and wife have any reason to alter property interests.

Each case is decided based upon its particular facts.  We look then to another case in 2016 of the Federal Circuit Court of Australia (Scott & Scott) where the Court did make orders altering the property interests of parties who had been married for 32 years and separated for 30 years.  The couple who were then aged 83 and 91, respectively, had never divorced and whilst there had been some discussion and previous arrangements towards making a property settlement, it had never been finalised.

At the time that the case was decided, the wife owned a property (A Property) in her name only which she had acquired post separation and which was unencumbered, with a then market value of $460,000 and held net assets, including that property, with a value of some $495,000.

The wife’s property had been purchased using an inheritance from her parents’ estate savings, monies that she borrowed from her son and the balance was obtained by way of a loan from a building society. The wife used the property registered in the name of the husband (L Property) as security for the purchase of her property but the Court was unclear as to why that was necessary. The Court was satisfied that the wife made all the mortgage repayments on this property.

The husband held nets assets with an aggregate value of $638,477. Those net assets included a property registered in the name of the husband.

Contributions

The husband had purchased vacant land (L Property) in about 1951 at the commencement of cohabitation of the parties. He had borrowed the amount of the purchase price and the loan was repaid many years prior to the date that the parties separated. Prior to their marriage, the parties built a garage on the land where they lived following marriage. The wife’s aunt lent her money to put on electricity and the husband with his friend did the actual work to connect the electricity.

In 1960, the parties borrowed money and subsequently built a house on the land where they lived. That loan was fully repaid by 1981.

There was other property that was purchased in joint names and sold just prior to separation. The wife had contributed her savings to the purchase and a loan was taken out to fund the balance purchase price.

There was some dispute as to how the proceeds of sale of that property were applied but the Court took the view that it was more likely than not that money from the sale of that property was used by the Husband to purchase a further property in his sole name.

The Husband then built a house on that further property (N Property). The wife left L Property in 1987. She returned to live there in 1988 during which time the husband moved between N Property and L Property. She left L Property in 1994 when she purchased A Property in her own name.

There was evidence that the wife helped the husband around the house after he broke his hip in 2000 and that in a few later years, she did cleaning, laundry and shopping for him when he was unwell and that she continued mowing the lawn at L Property until 2009.

Since separation in 1986, the wife had continued to raise with the husband her view that she was entitled to a share of L Property.  The wife in cross examination in Court insisted that the husband had promised her that L Property would be sold and that “half would be [hers]”.

At a mediation in 2003, the parties had signed a document which provided for the husband to pay the wife certain monies from the proceeds of sale of the L Property. However, the property was not sold.

The parties had been in a 32-year relationship during which they worked together to acquire, conserve and improve property which by mutual agreement they used as their home. For most of the 8 years after separation, they both continued to use of the property but for the 14 years prior to the husband going into aged care, he had had sole use of the property. Even so, the wife had continued to press her claim for a share of the property and the husband had said things indicating that he recognised her claim but no settlement had been finalised.

In these circumstances, the Court concluded that it was just and equitable to make a property settlement order.

The Court considered that the parties’ contributions during the marriage were equal and that on the basis of contributions, each party was entitled to 50% of the L Property. The Court considered that the husband had no entitlement to a share of A Property that was held in the name of the wife.

A division on that basis meant that the wife received or retained total assets of some $808,000 whereas the husband received or retained some $328,000. Whilst the Court recognised that this suggested that the wife was much better off as a result of the division, the Court noted that of those amounts the husband would pay some $235,000 in a Refundable Accommodation Deposit to his care facility whilst some $460,000 of the wife’s entitlement was tied up in the property that she occupied.

The Court further recognised that the wife was better off because of the investment that she had made in a property in the post separation period.

Future Needs

When considering the future needs of the parties, the Court took the view that:

  1. there should be no adjustment out of the property pool in favour of the wife. The wife would have sufficient funds to allow her to maintain a reasonable standard of living and enjoy some luxuries such as an overseas trip;
  2. Neither should there be any adjustment in favour of the husband. The husband’s pension was sufficient to pay his daily living costs with some cash remaining for some extra comforts. The Court noted that that the husband’s legal fees may impact his share of the pool but that the Court could not take this into account as the husband had not provided evidence about his legal fees.

The Court noted that there is no obligation of the Court to equalise parties’ positions.

No adjustment was made in favour of either party for future needs factors given:

  1. The age disparity, with the husband at 91 years of age being 8 years older than the wife;
  2. The wife’s additional living costs in her own home (whereas the husband was living in an aged care facility);
  3. That the husband should have sufficient funds to make him comfortable.

Contact LGM Family Law and our Brisbane Divorce Lawyers will advise you regards your entitlement for a property settlement.

life after separation Brisbane family lawyers

Who gets the family dog on separation? | Brisbane Divorce Lawyer

The decision as to who should keep the family dog can be very difficult following a separation. As we all know, your dog is often a much loved member of the family or pretty well treated as a member of the family. It can be especially difficult for this issue to be resolved where your children are spending time with each parent or more unusually, one parent only but the family dog is living with one parent only following a separation. Read on to find out more from our Divorce Lawyer Team.

One option to consider is for the family pet to travel between households although this is not without its complications. Sometimes, as a practical measure, it can help to buy another pet following separation. Of course, that is not a full solution but it may assist in reducing legal fees that may otherwise be incurred resolving arrangements for your existing pet. Contact LGM Family Law today to speak with one of our experienced divorce lawyers. We are able to assist you with resolving this and other property settlement issues.

In a recent decision in the Federal Circuit Court of Australia, the Court declared that the Wife was the owner of a former matrimonial dog as against her Husband and ordered that the Husband do all things necessary to cause the registration of the dog to be transferred into the Wife’s name.

Whilst we do not know from the case what was the name of the dog, we will call him/ (or her) “Alfie” for the purposes of this article.

Orders had been made by consent of the parties including per Order 6 that “….each party will be entitled to retain all other items, chattels, superannuation, Jewellery” and personalty “ in their names and possession”.

However, as the one issue outstanding regards the consent orders, the Husband sought that as an effective exception to that Order 6, that the Wife transfer ownership of Alfie to him.

The Wife however sought that Order 6 would include ownership of Alfie and that as she had possession of Alfie, she be declared his owner. The Wife also sought then that the Husband transfer to her registration of Alfie pursuant to the provisions of the Companion Animals Act 1998 (NSW).

Divorce Lawyer

Who gets to keep the family dog? | Divorce Lawyer

A little diversion

The Judge observed that the dog was a chattel being a sentient creature and noted that, at least in the English-speaking world, until relatively recently in our history, there were four classes of sentient creature who were capable of being the property of others. Firstly, people who had been slaves; secondly, women who had in the past often not been permitted to own property of their own but in many jurisdictions had been treated as the property of their fathers and then of their husband’s upon marriage; thirdly, children and fourthly, animals including companion animals such as the dog.

The Judge commented that sadly, these animals remain classified as the “property of their owners rather than having some more temporal existence with consequent rights”.

History is obviously not the object of this article. However, we pause to recognise with relief what  progress our western world has made in treatment of women and effective outlawing of slavery and think it interesting and worth considering that our closest animal friends should have recognised rights.

Back on track

The Court looked to a well known case in the High Court of Australia, Stanford v Stanford [2012] HCA 52, recognising that the first step in any determination of parties’ property interests and adjustments to those interests is to determine the net assets and liabilities of the parties.

Interestingly, the Court noted that neither the Husband nor the Wife sought to attribute any monetary value to Alfie and that this was appropriate. The recognised that Alfie’s value was not monetary but his worth was the parties’ love and affection for the dog as the parties each expressed it.

The Court noted, as the High Court in Stanford had made clear, that the Court was also required

to determine for the purpose of any controversy with respect to property adjustment whether an Order should be made and whether it is just and equitable for it to be so.

Whilst the Court had jurisdiction to make either of the Orders as sought by the parties, it was necessary that the Court determine whether any change in ownership of Alfie as it then existed should occur.

The Court concluded that:

  • Ownership of Alfie must be determined before the Court could determine whether any Order for the adjustment of ownership should be made;
  • The fact of payment by the Husband of the purchase fee for Alfie did not of itself determine ownership or the Order that the Court might make in adjustment of property interests between the parties;
  • Whilst ordinarily registration of ownership of a dog may assist in determining ownership, the Court would not draw any inference of ownership from Alfie’s registration by the Husband as the dog had not been registered until 8 months after separation and after the Husband had had clear notice of claim of ownership by the Wife in her Affidavit which had been served on him. The Court had looked for guidance as to “ownership” from NSW legislation mentioned above and noted the obligation of an owner under that Act to register a dog’s ownership within 6 months of acquiring the dog. Alfie had not been registered within that period;
  • The person who ordinarily kept Alfie was the Wife. A section of the NSW legislation provided a definition of “owner” as the person by whom an animal is ordinarily kept or the registered owner. The Court took the view that prior to the Husband having registered Alfie and subsequently, Alfie had either lived with the parties jointly and following separation, with the Wife;
  • The reference in correspondence annexed to the Wife’s material was the only direct reference to the dog’s ownership by the Husband and that was a mere assertion.

The Court then considered contributions under section 79 of the Family Law Act 1975, both financial and financial that had been made regards the purchase of Alfie and his on-going care and maintenance.    Whilst the Husband had paid the purchase price for Alfie, the Wife had contributed financially and non-financially to Alfie’s care, including payment of vet’s bills.

The Court took the view that it was very difficult to apply section 75(2) of the Family Law Act 1975 dealing with the future needs of the parties “unless one were to place some value upon lover and affection” whereas if Alfie had been a seeing eye do, those factors may have been relevant.

In these circumstances, the Court having determined that the Wife was Alfie’s owner, the Court took the view that there was no basis for any adjustment of interests in the chattel comprising Alfie.

The Court declared that the Wife was Alfie’s owner; that she had had possession of Alfie and that she had contributed to Alfie in such a fashion that it was not appropriate for any Order to be made varying ownership.

What next? | Our Divorce Lawyer Team

If you are needing family law advice on how best to resolve the issue of who takes ownership of your family dog or regards property division following separation, contact us and one of our experienced divorce lawyer will be happy to assist you.

You might also be interested in our complimentary separation checklist which has been prepared by our Divorce Lawyer Team to guide you through the process of separation.

Whether you’re located in Brisbane, Melbourne or elsewhere in Australia, our divorce lawyer team are able to assist you.

affordable Brisbane child custody lawyers

Can Our Children Still Attend Private School?

The subject of which schools your children attend can become difficult for parents after separation. Our child custody lawyers Brisbane help explain and navigate some different scenarios.

During your relationship, you may have decided that your children will attend certain private schools. You and your former partner may have decided that come what may, it was worth it to you both that children attend a certain school even if that meant having to forego some holidays that you might otherwise have had or deferring your retirement. These are decisions that parents commonly make for the benefit of their children.

Problems can arise however if you and your former partner separate. Suddenly, there are the expenses of two households that must be met. You and/or your former partner may have a new partner who may themselves have school aged children.

You may find that your former partner is telling you that he or she can no longer afford for your children to attend the private school that you had decided upon during your relationship. This kind of situation can cause a lot of anxiety and stress, not only for a parent but also for the child, particularly if the child is already attending a private school and there is suddenly a dispute with your former partner as to whether the child can remain at that school.

You need to understand that just because a child lives with one parent does not give that parent the right to decide where the child will attend school.

In the absence of any Court order to the contrary, the decision where a child attends school should be made jointly by both parents. This involves the parents consulting with each other and jointly coming to a decision about where the child will attend school.

If there is an order providing a particular parent with sole parental responsibility, then that parent may make the decision as to which school the child attends.

However, even where parents have equal shared parental responsibility, if there is dispute and the matter proceeds to Court, the Court may make the ultimate decision as to where a child will attend school.

It is obviously desirable to avoid a court action where possible. If this is your situation then before considering any court action, you should consult a solicitor and/or attend a mediation in an effort to resolve the dispute. In any event, you will need to attempt family dispute resolution before you may apply to the Court seeking parenting orders.

The difficult decision of which school children should attend was before the Full Court of the Family Court of Australia in a recent case where the mother was seeking orders including that the parents would do all things so that the children would be enrolled in specified private schools.

Child Custody Lawyers

Child Custody Lawyers

The mother did not succeed and the orders of the trial judge was confirmed providing that, unless otherwise agreed in writing between the parent, the children were to attend a specified state high school and, if the children were not accepted for enrolment in that school, that they attend a state high school in their residential catchment area.

The mother did not establish that the parents could afford the private schools that she proposed the children attend.  Her application did not address who would be financially responsible for the costs associated with attending those proposed schools. In fact, the estimated tuition fees only for the children to attend the private schools that the mother proposed was some $250,000 to $300,000 and for each year in which the two children were both attending high school at the same time, the combined costs of tuition alone would have been some $50,000 per year. These amounts did not take account of other costs associated with schooling costs or take into account likely increases in tuition fees over the years of schooling.

The father opposed the mother’s application largely on the basis of his assertion that the parents could not afford the cost.

The mother asserted on appeal that it was her case that she would be fully responsible for the children’s school fees. The Full Court did not accept this as the mother had not sought orders having the effect that she would be fully responsible for the school fees.

The Court found that neither parent could afford the fees. The trial judge had found that the children would not be disadvantaged by attending a state school. The trial judge had also considered that the child would cope with not going to the particular private school if the mother responsibly handled the situation for the child even though the order made was a real disappointment for her.

What next? | Child Custody Lawyers

At LGM Family Law, we are committed to helping you achieve the best outcome available to help you move forward in life. Our child custody lawyers Brisbane can assist you with any questions that you may have about parenting arrangements for your children and their schooling. Contact us today to receive a complimentary 15-minute phone consultation with one of our experienced solicitors.

Our team have the experience and compassion to assist you in your family law matter. If you would like to learn more about our dedicated team, you can view our team page here.

Or, for more information on child custody and the services our firm can offer you in this area, read our resource here.

Child Custody Lawyers Brisbane

Making Parenting Arrangements for Fathers Day

Father’s Day is quickly approaching! If you’re a Father, you’re probably looking forward to a well-deserved, relaxing weekend, being spoiled by the kids. Perhaps you’re hoping to spend it at the beach, having a BBQ, or a weekend-long camping trip. Whatever your plans, it’s a good idea to start thinking about what arrangements you can make with your former partner to ensure everything runs smoothly on the day. Read on to find out from our child custody lawyers Brisbane, some helpful parenting arrangements you might like to consider.

If you’re recently separated, you might still be struggling to work out parenting arrangements with your former partner. It can be challenging to negotiate an arrangement that each party is happy with, especially when it comes to important holidays. However, by planning ahead of time, you can help to reduce any stress or confusion on the day.

There are many different types of parenting arrangements that parties can agree and there’s no ‘one size fits all’ plan. But to help you out, we’ve shared two popular parenting plans for Father’s Day that can help ensure that the whole family is happy over this period.

An arrangement on Father’s Day itself:

This type of parenting arrangement would involve the children getting to spend Father’s Day with you each year. For Mother’s Day, you could agree for the children to spend the day with their mother. This way, each parent gets to celebrate their respective holidays, spending quality time with the kids.

A time-sharing arrangement over Father’s Day weekend:

If both you and your former partner are wanting to spend this holiday weekend with the children, a time-sharing arrangement may be a good choice. This may involve the Mother looking after the children from 9:00am on the Saturday until 9:00am on Father’s Day. The children would then spend time with the Father from 9:00am on Father’s Day until 9:00am or before school/kindergarten on the Monday.

A variation on this option is for the children to go to their Father from say 5:00pm on Saturday so that they then wake up with their Dad on Father’s Day and can make him a sensational breakfast!  The children then return to their Mother at say 5:00pm on Father’s Day or 9:00am or before school/kindergarten on the Monday. A similar arrangement can then work for Mum for Mother’s Day.

Child Custody Lawyers Brisbane

Child Custody Lawyers Brisbane

One important consideration when choosing a parenting arrangement is to ensure that it is not too disruptive for your children and allows them the time to enjoy the day with dad on Father’s Day.

Remember too that for parenting arrangements, you may have a very informal arrangement or a parenting plan that parties agree in writing. If relations between parents are difficult and you need certainty, a court order that covers parenting arrangements may be better for you. If agreement can be reached, a consent order may be issued without the need for you to actually attend at Court.

What next?

If you are struggling to reach an agreement with your former partner for arrangements for your children, we recommend that you obtain legal advice. Our experienced team of Brisbane Family Lawyers are here to help.

We even offer a free 15-minute phone consultation, giving you tailored legal advice. So contact our experienced child custody lawyers in Brisbane today!

Our team at LGM Family Law are dedicated to helping you find an effective solution, to help you move forward in life. We have two convenient locations; Brisbane CBD and the Grange.

No matter your situation in family law, our team of Child Custody Lawyers Brisbane are here to help.

suburbia Family Lawyers Brisbane

Beware Suburbia Fence Romance | Part 2

Romance family lawyers Brisbane

Beware that Suburbia Fence Romance | Part 1