2 April 2019 - Pets: Parenting plans or property settlements?
- By Briony Robertson • Lawyer
- •
- 02 Apr, 2019
After the breakdown of a relationship, there are clear legal principles that govern what happens to the property of the relationship and the children. But what happens to the family pets?
In most households, pets are an integral part of the family. One would therefore expect that they would be treated the same way in the Courts and that their future care arrangements would be determined based on best interest principles, much like the arrangements for children. It may surprise many, however, to find out that this is simply not the case.
Whilst
few disputes over pet ownership have actually been determined by the Courts,
the recent case of Downey & Beale [2017] FCCA 316 provides us with a very clear
indication as to how the Family Law Act 1975 currently applies to pets. In this
matter, each party sought to have ownership of their beloved dog as part of the
property settlement.
On one
hand, the Wife argued that the dog was gifted to her by the husband, had lived
with her at her parent’s home since it was purchased and she had met all costs
associated with it, including vet bills. On the other hand, the Husband argued
that he purchased the dog and it was paid for using his funds and that the dog
was registered in his name.
The Court held that, in order to determine ownership of the family pet, it needed to adopt the same approach as it does when determining ownership of any property and that it was really a matter of contributions. The Court rejected the Husband’s argument that the registration of the dog was determinative of ownership and found in the favour of the Wife on the basis of her overwhelming contributions by way of the day-to-day care of the dog (according with the New South Wales definition of “owner”), attendance at vet appointments and the like and meeting the financial costs associated with the animal. Orders were subsequently made declaring the Wife the owner of the dog and requiring the Husband to transfer its registration into the Wife’s sole name.
Whilst this case provides us with guidance as to the current treatment of pets after separation, it is in no way determinative of future cases of this nature. For example, different States have differing definitions of “owner” when it comes to animals which may significantly impact the determination of ownership following separation. For example, the relevant legislation in Victoria is limited to cats and dogs only. This may mean that an argument about a horse, for example, could end quite differently.
Furthermore, the Court was not required to consider the parties’ future needs in the above case. It is envisaged that an argument over a service animal, such as a Seeing Eye Dog, may see the Court looking at the factors set out in Section 75(2) of the Family Law Act (often referred to as “the future needs” factors). Other matters, such as the ongoing care of children of the relationship may also be an influencing factor in determining pet ownership, although this was not a relevant factor to the above case.
It therefore remains essential that parties seek legal advice in the event that there is a dispute about the ownership of a pet following separation, as the answer may not be as obvious as everyone thinks.
Wightons Lawyers welcomes Jacinta Learey to our ranks.
Jacinta is an experienced lawyer who has worked exclusively in family law since 2016. Jacinta aims to achieve the best possible outcomes for her clients by working closing with them and providing guidance and advocacy.
Jacinta is able to provide advice and assistance to clients in relation to parenting arrangements, property division, family violence, Intervention Orders and Child Protection matters.
Contact our office on 03 5221 8777 to make an appointment with Jacinta.
Please view her full profile on our website: https://www.wightons.com.au/jacinta-learey
Wightons Lawyers - "We're here to help" it's at the heart of everything we do.
At Wightons we understand the importance of supporting the community and are proud of the relationship we continue to build with Geelong Community Foundation. By working with Geelong Community Foundation we know funds are going where they are needed most.
Link below to Geelong Community Foundation's recent newsletter and their article "Giving Made Easy for Business".
https://www.geelongfoundation.org/2021/07/giving-made-easy-for-business
A shareholders agreement is a legally binding contract entered between all of the shareholders (owners) of a company. It regulates how the owners of the company conduct their relationship with each other. It sets out their rights, responsibilities and obligations.
Subject to the company’s constitution, a comprehensive shareholders agreement will deal with and regulate such matters as the conduct of shareholder meetings, company management, the procedure with regard to the transfer of shares both voluntarily and compulsory, pre-emptive rights, third party interests in shares, the determination of the value of the shares, competition restraint, dispute resolution and confidentiality but to name a few.
The shareholders are responsible for the appointment of the company’s directors. The board of directors is an important and powerful group within the company and is responsible for the operational functions of the company. A shareholders agreement can contain provisions which regulate the manner in which directors are to run the company. Directors also must comply with regulatory constraints contained in the Corporations Act 2001.
More often than not, disputes that arise within a company can be resolved by the contractual obligations stemming from a well thought out and detailed shareholders agreement.
A shareholders agreement is an essential component of a well-run and properly organised company.Should you require assistance with a shareholders agreement please contact us on 5221 8777 or at legal@wightons.com.au.
The advantage of doing a homemade Will is that they can be done at home at little-to-no cost. However, doing a homemade Will can have some dire consequences.
In many cases, homemade Wills are executed incorrectly, contain mistakes, or other unintended consequences. These mistakes can result in the estate spending significant amounts of money in proving the legitimacy of the Will, correcting the mistakes or, in some cases, making an application to have the Supreme Court of Victoria determine what the Will means.
The costs in fixing the mistakes greatly outweigh the cost of having a solicitor’s Will. In some cases the errors can cost tens of thousands of dollars to rectify.
Here are some examples of errors which we have seen in homemade Wills:
- Mathematical errors in calculating shares;
- Poor description of people or intended gifted items;
- The purported gift of property which is not an estate asset;
- Gifts to entities which are not legal entities;
- Poor expression of intention resulting in confusion;
- Non-compliance with the formalities to make a valid will; and
- The homemade Will cannot be found.
Any one of these may result in an application being made to the Supreme Court of Victoria, resulting in stress, breakdown of family relationships, delay in administering an Estate and increased expense.
It is highly recommend that all wills are prepared by an experienced solicitor who can correctly identify the potential issues and avoid unnecessary difficulties.
We have a highly experienced estate planning team at Wightons. Should you need to complete or update your Will or estate plan, please do not hesitate to contact our office.
Jesse Rankine, Director, has been named on Doyle’s 2020 listing for Leading Victorian Wills, Estates & Succession Planning Lawyers. To see the full list, please click the link below:
https://doylesguide.com/leading-wills-estates-succession-planning-lawyers-victoria-2020/
Doyle’s
is an independent organisation that compiles recommended listings of law firms
and lawyers by way of research and interviews with consumers and legal service
providers.
The
team at Wightons are proud to see Jesse’s talents recognised in the 2020
listings. Deb Anderson was also recognised on the 2019 listing.
Jesse
is available for consultations via telephone and Zoom and also in person where
necessary. To make an appointment with Jesse please contact our office on 5221
8777.
We have been advised by Centre Management (Corio Village) that there have been a number of workers within Corio Village that have tested positive for COVID-19. Additionally, a number of people who have tested positive have stated that they had recently visited Corio Village. Centre Management is responding with a thorough sanitisation deep clean of the entire Village and removing any remaining seating.
Although none of the positive cases are associated with Wightons Lawyers,
we are taking the precautionary measure of closing our Corio office for the
next 14 days, reopening to the public on 26 August 2020.
We remain fully operational and continue to provide all our services
remotely and at our Geelong office (for tasks that cannot be completed
remotely).
Please stay healthy and take care of yourselves and each other.
Should you have any queries whatsoever please contact us.
Reach out. We are
here to help.
We remain open and continue to provide our clients with the necessary support and assistance with regard to Wills, Enduring Powers of Attorney and estate planning. These matters should be reviewed regularly.
In light of the current scenario, we are now offering appointments by telephone or Zoom (as well as in person) to discuss our client’s needs and wishes. Draft documents are then circulated for approval.
Our office remains open for the execution of documents. However, for those who are unwilling or unable to come into the office, we are able to provide the documents with detailed instructions on how to have the documents correctly signed and witnessed. Wills and Enduring Powers of Attorney (but not appointments of medical treatment decision makers also known as medical powers of attorney) may be able to be remotely signed and witnessed.
Both Wills and Enduring Powers of Attorney must be signed in the presence of two witnesses. For Powers of Attorney one of the witnesses must be qualified to take affidavits, which may prove difficult for those wishing to sign at home.
For those in isolation an interim informal Will is also offered. This is aimed to cover the period of isolation with the intention to sign a further formal Will upon the conclusion of the isolation.
Where clients do execute documents at home, we request they return the originals, or clear colour copies, to us so that we can ensure that the documents have been correctly signed.
Should you require any assistance with Wills, Enduring Powers of Attorney and estate planning please do not hesitate to contact us on 5221 8777 or at legal@wightons.com.au.
The restrictions imposed on families during the pandemic has created isolation, financial pressures, stress and uncertainty. These have led to added pressures to families and in many cases difficulties in implementing parenting arrangements.
In response to the increase in family law disputes that have
arisen as a direct result of COVID-19, the Family Court of Australia has
developed a dedicated list to fast-track matters which require urgent
consideration.
Importantly, eligible matters will be given a court date
before a Judge or National Register within 3 business days or earlier if
considered critically urgent.
In order to be eligible for a matter to be considered under
the list your dispute needs to be as a direct result of the COVID-19 pandemic, be
urgent, be capable of being dealt by electronic means and if safe to do so,
reasonable attempts have been made to resolve the issue, but were unsuccessful.
Examples of applications that may be suitable for filing in the COVID-19 list include:
- Where supervised contact is no longer able to be facilitated due to contact centre closure or family members no longer being available to assist;
- Due to border restrictions the child(ren) are unable to travel;
- The parent or child have tested positive for COVID-19 and unable to fulfil their parenting obligations;
- There has been an increase in the risk to the family due to family violence which has resulted from the restrictions imposed on families.
The Magistrates Court of Australia also continues to operate should you or members of your family be at risk of family violence and require a family violence intervention order.
Should you or your family be at immediate risk you should
call Victoria Police on 000.
Please do not hesitate to contact our office to discuss
whether or not your circumstances meet the eligibility criteria for this list
or require assistance with a family violence intervention order matter.
The rights and obligations of landlords and tenants of commercial tenancies have been substantially altered due to the COVID-19 pandemic.
The
changes started with the National Cabinet releasing a “Code of Conduct” ( the Code
). The Victorian government
then passed the COVID-19 Omnibus (Emergency Measures) Act 2020 ( the Act
) and now the COVID-19 Omnibus
(Emergency Measures) (Commercial Leases and Licences) Regulations 2020 ( the Regulations
).
Parties
should not assume that the Code, the Act and the Regulations all contain the
same wording and/or requirements as there are several important differences
between the three (discussed below).
In
Victoria, the provisions of the Regulations prevail over those found in the
Code, so it is the Regulations that provides real guidance to landlords and
tenants of commercial tenancies.
Notable
differences between the Code, the Act and the Regulations include:
- The Code states it is applicable where the tenant is eligible for JobKeeper. However, the Act and Regulations apply where the tenant is eligible for and a participant in JobKeeper;
- The Code states that rental relief must be offered in proportion to the tenant’s reduction in trade. The Regulations however state that rental relief must be based on all of the circumstances of the lease . This means that there is increased room for negotiation from a landlord’s perspective;
- The Code states that that the tenant must abide by the other terms of the lease or risk forfeiting protections. There is no such requirement under the Act or the Regulations;
- The Code states that landlords are unable to charge punitive interest on deferrals. The Regulations state that no interest can be charged on deferrals;
- The Code makes several references that it is to apply “during the pandemic plus a reasonable subsequent recovery period”. However, the Act and Regulations specifically apply from 29 March 2020 to 29 September 2020 only;
- The Regulations allow tenants to make subsequent requests for rental relief, however the requirement that ‘waivers’ must make up at least 50% of the relief is removed in these circumstances; and
- The Regulations include a prohibition on landlords charging their tenants more than the tenant’s proportional share of outgoings.
Please do not hesitate to contact our office should you have any queries regarding the operation of the Code, the Act, and the Regulations, and how they collectively operate.
The Victorian Government has now passed the COVID-19 Omnibus (Emergency Measures) Act 2020 (“the Act”) in response to the COVID-19 pandemic.
The Act empowers the government to issue regulations which will alter the rights and responsibilities of Landlords and Tenants of commercial leases and licences. The foreshadowed regulations will be designed to encompass the ‘Code of Conduct’ which was released by the National Cabinet last month. For a full outline of the Code of Conduct please refer to our recent publication at the following web address:
https://www.wightons.com.au/16-april-2020-commercial-tenancy-update-covid-19
The exact wording of the regulations is currently unknown which is creating uncertainty for Landlords and Tenants alike. We will provide a further update regarding the regulations once they are available.
One important distinction between the Act and the Code of Conduct is the eligibility test. The Act indicates that the temporary rules will apply where the Tenant is a participant in the JobKeeper scheme. This should be contrasted with the Code of Conduct which states that it applies where the Tenant is eligible for JobKeeper. Victorian Tenants wishing to gain the protections of the Code of Conduct should therefore ensure that they are participating in that scheme if they are eligible to do so.
The Act (and any subsequent regulations under that Act) is effective from 29 March 2020 for a period of 6 months.
Should you have any queries regarding the Act or the Code of Conduct and how they may impact your business please do not hesitate to contact our office.