Earlier this year, false information began circulating on social media claiming that opting to receive a COVID-19 vaccine would void life insurance policies on the basis that the vaccine is ‘experimental’.

In response, the Financial Services Council (FSC) released a statement confirming that the COVID-19 vaccine was not considered to be experimental:

“To be clear – the COVID-19 vaccine is not experimental treatment. Receiving approved treatment from a qualified medical professional at an approved medical facility is not a self-inflicted injury,” FSC CEO – Sally Loane.

The FSC has confirmed that life insurance policies will not be affected by the policy holder receiving a COVID-19 vaccine.

Numerous life and health insurance providers have gone a step further, in announcing that they are considering or will be implementing premium discounts or other incentives to encourage their customers to get vaccinated against COVID-19. Zurich, TAL, AIA and Medibank are just a few life and health insurance providers who have announced that they are, or may be, offering incentives for being vaccinated.

 

If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.

Last year, legislation was passed merging the Federal Circuit Court of Australia and the Family Court of Australia to make the Federal Circuit and Family Court of Australia (FCFCoA).

The changes took place today (1 September 2021) and brings drastic changes to the way litigation is conducted with a particular focus on improving the process of family law litigation in Australia.

The amalgamation of these Courts is set to meet a number of goals including:

  • A focus on education which means a greater emphasis on settlement prior to proceedings being issued and if parties to proceed with litigation, that they are well aware of the implications for their families and costs of the proceedings;
  • Place greater emphasis on Court orders and compliance with timetables set by the Court;
  • Provide parties with ongoing dispute resolution as required and otherwise list the matter before a judge without extensive delays. This is particularly important in light of the increasing rate of domestic violence in communities and to ensure vulnerable parties such as children are protected at early stages in disputes;
  • Greater uniformity in family law rules and practice directions for different areas of the Court including a single website to also be launched on 1 September 2021.

Overall, the Courts’ focus will be to create a more simplified and efficient process for litigants including to cut wait times for families waiting for decisions.

It is yet to be seen whether the FCFCoA will live up to the goals it has set out to achieve and it is difficult to provide a timeframe when the success of this initiative can be measured. Both practitioners and litigants will be required to adjust and navigate through a new system and consider the new requirements and expectations of the FCFCoA.

We are optimistic, however, on the goals the FCFCoA has set to achieve, and we hope that this will be a new platform through which we can see positive outcomes for families and vulnerable groups.

 

Chamberlains Law Firm can assist you with the legal questions anything about Family Law. Contact us!

The fire at the Grenfell Tower social housing block in London shone a light on the dangers of the use of cladding with polyethylene (PE) core across the world. More recently, the fire that ripped through a high-rise apartment complex in Milan two days ago – which caused the building’s external panels to melt off in ‘liquified clumps’ – has again sparked debate as to why this building material was ever deemed acceptable for use.[1]

Combustible cladding represents a risk to apartment owners and apartment buyers across Australia, but perhaps nowhere more so than in Canberra. Despite the publicity that has followed this issue over the past few years, there is still a great deal of confusion in the industry and in the general public around what combustible cladding is and what risks it may pose.


What is combustible cladding?

Combustible cladding is a catch-all term for two types of cladding products, known as polyethylene (PE) core cladding and aluminum composite panels (ACPs). ACPs are generally two thin sheets of aluminum separated by a core material. The core material may be PE, another type of mineral fiber or a combination of both.[2] PE is derived from petroleum and, unsurprisingly, has a poor fire rating performance. Aluminum is a heat conductor which can cause fire to spread rapidly in the external areas of a building.

ACPs are most dangerous in high-rise apartment buildings, as they may cause fire to spread so quickly that those living in the building are not able to escape. This is how combustible cladding can pose a serious risk to the lives of those who live within impacted buildings. Australia has personally already witnessed how dangerous ACPs can be, when a cigarette left on the balcony of the Lacrosse Building in Melbourne sparked a major fire.[3] Closer to home, a potential tragedy was averted when a cigarette again nearly caused a blaze at the Glebe Park Apartments which was lucky addressed quickly by the fire department.[4] The Glebe Park Apartments are believed to be 100% PE Core cladding, [5] which is reportedly the same material used on the residential building in Milan. [6]

Despite the alarming name, the presence of combustible cladding does not always mean that a building is automatically unsafe. Buildings with ACPs can mitigate the fire risks by installing safety features, including building sprinklers and other fire reduction mechanisms, but must work with professionals to do so.


Is combustible cladding illegal? Does it need to be removed from existing buildings?

The treatment of combustible cladding is still not uniform across Australia which poses a massive challenge both to industry and to individual owners and buyers. Unfortunately, while the Victorian and New South Wales governments have already moved to ban ACPs and PE core panels, we have not seen the same level of progress in the ACT.

In New South Wales, the government’s ban is retrospective, meaning that buildings constructed with ACPs prior to the ban must still remove the defective cladding. Building owners (including Owners Corporations) must check for external combustible cladding and register all affected buildings with government.

In Victoria, low-cost financing has been introduced to help building owners remove dangerous combustible cladding from their buildings. A statewide audit has been implemented by the government to identify affected buildings and resources issued to help owners and buyers.

In the ACT… well, government has conducted an audit on their own privately-held buildings to determine whether they are affected by combustible cladding. Some of these buildings are now being rectified. In respect of privately-owned buildings, Minster Rebecca Vassarotti announced a new cladding rebate in the sum of $20,000.00 for eligible residential building owners to assist them with carrying out testing and assessment on a building’s cladding.[7] However, the current concern is that most apartment owners will not be able to cover the cost of remediating their building following the assessment.


What impact does this have on apartment owners and buyers?

The impact of combustible cladding on existing apartment owners and prospective buyers can be broken down into a number of categories:

  1. Risk to Life: as outlined above, a building that is affected by combustible cladding can post a significant risk to the lives of its occupants. As an existing owner, clarifying what this risk is and how it can be mitigated is essential to your continued occupancy of the building. As a prospective purchaser, you must identify the level of personal risk and determine whether it is acceptable to you.
  2. Insurance Risk: an increase in insurance premiums, coupled with exorbitant excesses for buildings impacted by cladding, has had a massive financial impact on apartment owners in the ACT. The average minimum insurance excess for fire claims relating to a building with ACP is $100,000.00.[8] Gaining or renewing insurance can also prove difficult for Owners Corporations, with some apartment buildings reportedly denied insurance all together until they can remove the affected cladding.[9] Maintaining strata insurance is a condition of a mortgage, so should insurance be denied or prove too expensive to maintain, the situation for existing building owners could quickly become financially ruinous.
  3. Rectification Costs and Re-Sale Value: the upfront costs of removing combustible cladding can prove financially crippling for many apartment complexes, with costs often required to be addressed through large special purpose levies or specifically designed strata loans. While the NSW Government and VIC Government have offered interest-free and low-cost financing options for Owners Corporations, no such option exists at this stage in the ACT. The difficulty of selling an affected property can also prove frustrating, as owners who are unable to afford to continue occupying their homes as a result of the rectification costs may also be unable to find a buyer with a lender who is willing to take on the same financial risk.
  4. Mortgage Risks: There are already some banks that will not lend to buyers planning to buy into an apartment complex with combustible cladding. If you exchange on pre-approval, subject to valuation, the discovery that there is combustible cladding on your apartment complex may result in your lender withdrawing their finance approval. This can be a significant risk and may result in your contract being terminated and your deposit forfeited.


So, what should I do?

For existing owners, our hope is that the ACT Government will follow the path of other jurisdictions to provide improved outcomes for all owners in the ACT. Industry bodies like the Master Builder’s Association and the Owners Corporation Network, continue to lobby the ACT Government for improved options for ACT owners and buyers.

If you are a prospective buyer looking to buy an apartment in the ACT, make sure you do your due diligence – particularly with regards to the Owners Corporation’s records. Thoroughly research and review all the records held by the Owner’s Corporation and ask your solicitor or conveyancer for guidance if you are unsure. This can assist to identify whether there is any combustible cladding present on the building, and what fire safety mechanisms are in place to reduce the risk. It can also allow you to identify whether any special purpose funds or strata loans have been put in place to remediate cladding, and what the cost will be to you.

 

[1] https://www.reuters.com/world/europe/milan-mayor-says-cladding-melted-tower-block-blaze-londons-grenfell-2021-08-30/
[2] https://www.altusgroup.com/services/en-au/insights/combustible-cladding-what-you-need-to-know/
[3] https://www.first5minutes.com.au/blog/combustible-cladding-what-is-to-be-done/
[4] https://www.afr.com/property/residential/combustible-cladding-ignited-in-canberra-apartments-fire-20190820-p52j15
[5] https://www.afr.com/property/residential/combustible-cladding-ignited-in-canberra-apartments-fire-20190820-p52j15
[6] https://www.archpaper.com/2021/08/officials-blame-flammable-cladding-after-intense-milan-high-rise-blaze/
[7] https://the-riotact.com/combustible-cladding-could-become-acts-second-mr-fluffy-without-full-audit/479032
[8] https://the-riotact.com/act-cladding-solution-long-overdue-as-insurance-premiums-skyrocket/467467
[9] https://the-riotact.com/combustible-cladding-could-become-acts-second-mr-fluffy-without-full-audit/479032

 

We’re here to help

We at Chamberlains appreciate the difficulties builders, contractors and homeowners alike have been facing in recent times. Should you or your business need some assistance to navigate any legal issues which have arisen during these unprecedent times, please do not hesitate to contact our building and construction law team.

Estate matters can be complex and even more so when there is a claim against the Estate or when a beneficiary is missing. An Executor has many duties when administering the Estate of a deceased person, one of which is to uphold the Will, which can be difficult even after searching high and low the beneficiaries of the Estate cannot be discovered.

So what do you do if you can’t locate a beneficiary? Short answer – you can apply to the Court for a Benjamin order.

A Benjamin order allows an executor to distribute an estate on the basis that the missing beneficiary has died before the deceased person. In order to seek a Benjamin order from the Court, you must show that you have made sufficient inquiries to find the missing beneficiary. Once the Court grants a Benjamin order, the executor is no longer liable if they distribute the Estate to whom they believe are the correct beneficiaries, even if the missing beneficiary is later found.

Suppose an executor distributes an estate contrary to the Will. In that case, they can open themselves up to litigation, so if there is a missing beneficiary in your matter, we recommend seeking advice on whether you should apply for a Benjamin Order. Similarly, if you think an executor has not distributed the Estate according to the Will, you may be eligible to make a claim against the Estate in certain circumstances and recommend seeking expert legal advice as soon as possible as there are time limits that apply.

At Chamberlains, our wills and estate planning lawyers can provide assistance with both defending and contesting Wills. We can guide you through the entire process. From advising on your prospects, lodging or defending a claim, and seeking Benjamin Orders from the Court, we can get the job done.

One of the most efficient and cost-effective methods of pursuing new business concepts and strategies is where a group of entities carry on a business together with a view to profit. 

This article explores how you can set up a business structure that will best facilitate your joint business ventures success. 

STEP 1: KEY CONSIDERATIONS

Before commencing any business venture with another party, it is essential that you consider the following questions. By considering these questions, with the assistance of legal and financial advisers, you can set your business and commercial relationship up for success.

  1. What type of business venture do you intend on undertaking?
  2. What is the objective of the business venture?
  3. What is the structure of the commercial relationship?
  4. How long will the commercial relationship be?
  5. How will the business venture be funded?
  6. How will profits and assets accrued from the business venture be shared between parties?
  7. How flexible does the commercial relationship need to be?
  8. How will confidentiality be maintained?
  9. How will disputes be resolved?
  10. How will the business venture end, and how can parties leave the business relationship?
  11. Who has ownership over the intellectual property created in the business venture?
  12. Who has liability over actions made in the business venture, and how will liability be assigned to each party?
  13. What legal liabilities, tax implications, and costs will you incur?
  14. What are the future needs of your individual businesses and joint business venture?

STEP 2: BUSINESS STRUCTURE

Once you have answered the STEP 1 questions, you can consider the most appropriate business structure to achieve your objectives. There are two key business structure options for joint business activities, a partnership and a joint venture. Each structure is designed to facilitate different goals. 

What does each of these structures look like?

Partnership

A partnership is where two or more individuals or companies carry on an ongoing business as a partnership. It is usually limited to 20 partners and is not a separate legal entity.

In a partnership, the parties have joint interests in the project and are jointly and severally liable for the project’s expenses.

There are two types of partnership, general and limited.

  1. In a general partnership, all partners are equally responsible for the operations and management of the association. This means that each partner could be responsible and liable for all of the partnership’s activities if the other partners fail to pay; and
  2. A limited partnership is one where one or more partners has limited liability for the debts and obligations of the business (provided the limited partner does not participate in the management of the business). In contrast, the rest of the partners have unlimited liability.

    Joint Venture

    A joint venture is where two or more individuals or companies may carry on a business as a joint venture. A joint venture is not limited by size.

    This is typically used for temporary agreements and allows all parties to mutually benefit from a specific agreement.

    Generally, the parties have defined interests and are usually liable for their own debts, which they incur individually.

    There are two types of joint ventures, incorporated and unincorporated.

    1. In an incorporated joint venture, the parties use a corporate entity to undertake the business venture. The terms are generally set out in a Shareholders’ Agreement; parties must comply with the rules set out in the Corporations Act 2001 (Cth), and directors of the incorporated joint venture company owe directors duties. A joint venture company is unable to offset profits and losses against income and losses outside of the incorporated joint venture; and
    2. In an unincorporated joint venture, the parties agree to a contract that sets out each party’s rights and obligations. Each party owns a percentage interest in the joint venture’s assets, and their liability is several between parties but joint to third parties. There is only a contractual relationship between parties, and each party is treated independently for tax purposes.

      STEP 3: DRAFTING AN AGREEMENT

      Once you have determined which business structure best suits your business’s needs, an agreement that is appropriate to your selected business structure and takes into consideration the answers to the STEP 1 questions should be drafted.

      Once the agreement is drafted, we recommend seeking independent legal and financial advice to ensure that your interests are protected and promoted.

      By having a practical agreement, you can provide your business venture with the best foundation for success. 

      If you have any legal questions about commercial and corporate law, reach out to our specialists at Chamberlains Law Firm!

      With the COVID-19 vaccination program being actively rolled out across Australian states and territories, employers, employees and even customers are grappling with the lawfulness of mandating vaccines.

      In Australia, the government’s advice is evolving, and currently the COVID-19 vaccine has been mandated for aged care, health and quarantine workers. In New South Wales, constructions workers in nine hot-spot local government areas are also required to be vaccinated against COVID-19 to return to work.

      What does this mean for other businesses?

      On 6 August 2021, Prime Minister Scott Morrison addressed the concerns surrounding the imposition of a mandatory vaccination program across Australian business stating:

      “Decisions to require COVID-19 vaccinations for employees will be a matter for individual business, taking into account their particular circumstances and their obligations under safety, anti-discrimination and privacy laws.”

      Safe Work Australia (SWA), the federal workplace health and safety regulator, has provided guidance in light of the roll out of the COVID-19 vaccine stating that “…most employers will not need to make vaccination mandatory to comply with the model WHS laws.”

      On 12 August 2021, the Fair Work Ombudsman (FWO) revised its advice on COVID-19 vaccinations and the workplace. The updated advice provides a range of factors which should be considered by employers when determining whether a direction to employees to get vaccinated against COVID-19 is “lawful and reasonable”.

      The FWO cautions employers that these factors are to be assessed on a case by case basis and are entirely reliant on the employer’s unique and independent circumstances. As a guide the FWO has also set out a four-tier system to distinguish different groups of workers.

      What is a “lawful and reasonable” direction?

      As we set out in our earlier article, there are limited circumstances where employers can legally mandate vaccines as any direction must be “lawful and reasonable” (you can read our previous article “No Jab, no Job – Are mandatory vaccinations lawful?” here).

      The FWO has again confirmed that whether a direction is lawful and reasonable will be fact dependent and assessed on a case by case basis. The factors taken into consideration include:

      • the nature of each workplace;
      • the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
      • the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant;
      • work health and safety obligations;
      • each employee’s circumstances, including their duties and the risks associated with their work;
      • whether employees have a legitimate reason for not being vaccinated; and
      • vaccine availability.

      What are the four tiers of work?

      The four broad tiers of work, as defined by the FWO, are as follows:

      • Tier 1 work: where employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (for example, employees working in hotel quarantine or border control).
      • Tier 2 work: where employees are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 (for example, employees working in health care or aged care).
      • Tier 3 work: where there is interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment (for examples, stores providing essential goods and services).
      • Tier 4 work: where employees have minimal face-to-face interaction as part of their normal employment duties (for example, where they are working from home).

      Certain workplaces may employ a mix of employees that perform work falling into different tiers.

      Which workers can be directed to be vaccinated?

      The guidance by the FWO provides that a direction to workers within Tiers 1 and 2 to get vaccinated will be more likely to be reasonable given the increased interaction and contact with other people and heightened risk of infection and transmission of COVID-19. On the other hand, a direction to get vaccinated against COVID-19 is unlikely to be reasonable if issued to Tier 4 workers due to the minimal risk of transmission of the virus. For those working within Tier 3 the reasonableness of a direction will depend on whether there has been any community transmission of the virus in the area where the employer operates, and if so, whether the employer is required to stay open despite a lockdown. If those factors are satisfied, a direction to Tier 3 workers is more likely to be reasonable.

      Key Takeaways

      • In certain industries employers will be able to mandate the COVID-19 vaccine.
      • A direction to be vaccinated against COVID-19 must be lawful and reasonable.
      • The FWO has released a four-tiered system to guide employers in assessing whether it is lawful and reasonable to mandate vaccines in the workplace.
      • The imposition of mandatory vaccines is more likely to be legal for Tier 1 and Tier 2 workers. For Tier 3 workers, lawfulness and reasonableness will be dependent on whether the workplace is located in an area of high transmission of the virus and for Tier 4 employees it is unlikely that a vaccine mandate will be considered lawful or reasonable.
      • The advice and guidance by SWA and the FWO is not law.
      • Whether employer’s can lawfully and reasonably mandate the vaccine is entirely case dependent and requires an assessment of the relevant factors applicable to the workplace, the employees and the nature of the work that they perform.
      • Employers who are considering making the COVID-19 vaccination mandatory in the workplace should legal advice about their circumstances and obligations.

      Contact the Workplace Law Team at Chamberlains Law Firm for any questions and concerns.

      We often read about celebrity divorces in magazines and online publications. As it often goes in gossip, the more drama, the better. Often our clients are worried about their personal affairs and private information becoming public, just like they have read in magazines.

      Thankfully, the Family Law Act 1975 and Family Law Rules 2004 is there to protect your information!

      Section 121 of the Family Law Act limits the publication of proceedings and lists of cases in the family law jurisdiction in Australia. However, there are several exceptions such as:

      • Any communication to persons concerned in a proceeding in any court, any pleading or transcript of evidence or other documents for use in connection with those proceedings;
      • Any communication of the same to authorities of States and Territories that have responsibilities related to the welfare of children and are prescribed by the regulation for this purpose;
      • Any communication of the same to a body or persons concerned that is responsible for disciplining members of the legal profession in a State or Territory;
      • Any communication of the same to a body that grants assistance by way of legal aid to facilitate the making of a decision as to whether assistance by way of legal aid should be grant continued or provided in a particular case;
      • The publishing of a notice or report in pursuance of the direction of a court;
      • The publishing by the court of lists of proceedings under the Act, identified by reference to the names of the parties that are to be dealt with by the court;
      • The publishing of any publication bona fide intended primarily for use by the members of any profession being a separate volume or part of a series of law reports or any other publication of a technical character;
      • The publication of other dissemination of an account of proceedings or any part of proceedings to a person or individual who is either a member of a profession in connection with the practice in the course of any form of professional training, a party to the proceedings or a student who is in connection with the studies of that person;
      • Publication of accounts of proceedings, where the court has approved those accounts; and
      • When the court authorises the publication of accounts of proceedings, including on the internet.

      However, these publications are in de-identified form, meaning your and the other party’s name will not be printed to the public. Exceptions are subject to their application and may differ according to differences in time, locality, place, or circumstance. 

      Offending section 121 of the Act is a punishable offence and can, after conviction, result in imprisonment for a period not exceeding one year.

      Rule 24.13 of the Family Law Rules 2004 strictly limits the people allowed to search court records and copy documents related to a case or a person with proper interest with permission from the court.

      This means your personal and private information generally stays between you, the court and your lawyer – away from public eyes.

       

      Chamberlains Law Firm can assist you with the legal questions anything about Family Law. Contact us!

      As of 1 September 2021, The Family Court of Australia and the Federal Circuit Court of Australia will merge to become the Federal Circuit and Family Court of Australia (FCFCOA).

      This change is designed to create a new court that is “innovative, fair and efficient and focuses on risk, responsiveness and resolution” (Media release). It promises to resolve up to 90 per cent of cases within 12 months, where possible, improve early risk identification and access to justice for vulnerable parties and encourage more innovative alternatives to the court to lessen costs for parties.

      You can expect a new set of harmonised rules from extensive consultation with the profession and other stakeholders, which will be voted on sometime in August. There will also be 14 new practice directions to accompany these rules, as they commence 1 September 2021.


      Appeals

      With the introduction of the Federal Circuit and Family Court of Australia (FCFCOA) comes the introduction of new Appeal processes.

      The FCFCOA division 1 will retain the jurisdiction to hear family law appeals. Division 1 Judges will also be able to hear appeals either as a single judge or as part of the Full Court.

      In Western Australia, all division 2 appeals and family law Magistrates of Western Australia decisions will be heard by a single judge unless considered appropriate by the Chief Justice to be heard by a Full Court.

      There is no longer a separate Appeal division.

      There will also be a new national appeals filing registry to enable a centralised and consistent method for filing an appeal.


      The new case management pathway

      This new case management pathway is designed to move cases through the family law system as quickly and fairly as possible with the intention of as little detrimental impact on families and children as possible.

      The system is designed to identify risk and safety at the beginning of each case, with as many opportunities for alternative dispute resolution where safe to do so as possible. Where matters cannot be resolved with dispute resolution, trials will be listed earlier than previously experienced.

      There will be increased involvement of Senior Registrars, Registrars and Family Consultants early on in these processes to alleviate the workload on judges and ensure that they can “hear and determine trials and deliver judgments in the matters that require judicial attention as quickly and efficiently as possible” (Media release).

      The first court event will occur within 6-8 weeks of filing with an expectation that parties should be at mediation or dispute resolution within six months of filing. Trials are to commence where possible within 12 months of filing if necessary, with a hope to reduce up to 90% of cases within the system.

      The Commonwealth Government facilitates these changes with over $100 million in new funding.

      As of 1 September 2021, all decisions regarding matters in the old court system will be moved into this new pathway. They will remain listed unless otherwise advised.


      Court Improvements on Compliance with Orders

      As of 1 September 2021, as part of the new rollout of the Federal Circuit and Family Court of Australia (FCFCOA) comes the introduction of a National Contravention List.

      This list is intended to address alleged breaches of court orders and efficiently deal with applications on a national basis in a timely, cost-effective, and safe way for all litigants.

      It will provide all applications with a first return date within 14-days of filing and ensure compliance with court orders by all parties.

      The introduction will impose appropriate penalties or sanctions where a contravention has been proved and where a party has failed to demonstrate a reasonable excuse for non-compliance with orders.

      It will also triage matters where possible to dispute resolution to resolve matters without additional litigation.


      Its effect on child dispute services and family consultants

      As part of the introduction of the Federal Circuit and Family Court of Australia (FCFCOA), there will be changes to Child Dispute Services.

      The FCFCOA is introducing a more fulsome report called the Child Impact Report, designed to replace the section 11F assessment process.

      This aims to assist parties in reaching an agreement where possible and provide guidance to the court for interim hearings.

      Where matters reach the trial stage, the current family report model will remain available but with additional options available. This includes reports concerning specific issues and addendum reports to build on the original Child Impact Report.

      Family Consultants will now be known as Court Child Experts.

      Child Dispute Services will now be known as the Court Children’s Service.

       

      Chamberlains Law Firm can assist you with the legal questions anything about Family Law. Contact us!

      Pets and Family Law

      Many couples purchase a pet during the course of a relationship. They are usually beloved family members in the owners’ eyes, so any suggestion that they should not be treated in the same way as children is met with surprise.

      How are pets treated in family law?

      The simple answer is, they are treated as personal property, much like a book collection, lamp or couch. Pets are not mentioned in the Family Law Act; however, the general legal position is that they are chattels. Disputes about who should keep pets are rarely decided by the Court. This is likely because the Court takes a relatively poor view of parties who cannot resolve the division of personal property.

      Suppose the question must be decided by the Court. In that case, the allocation of ownership of the pet will be determined in accordance with the principles applied to other assets in property settlement proceedings. The Court has the power to make any order it considers appropriate altering the interests of the parties to the relationship. The factors the Court may look at when determining what is appropriate are:

      • The name the pet is registered in;
      • Whether the pet was paid for by one party or jointly;
      • Whether the pet was brought into the relationship by one party;
      • If there are any children of the relationship who wish for the dog to remain in their household;
      • The suitability of the homes of each of the parties; and
      • The space required to keep the pet.

      Dealing with a dispute

      Given that many separations are highly emotionally charged, a dispute about who gets to keep the family pet can be very upsetting. Parties are encouraged to negotiate an agreement between themselves as to who will retain the pet. This might be achieved through alternative dispute resolution. Court is only ever a last resort, especially for cases solely dealing with the narrow issue of pet ownership.

      If property proceedings are already underway for other items of property, it is commonplace for the family pet to be excluded from the list of assets in the balance sheet. If they are to be included, they would usually be given a nominal value. If an animal is valuable, for example, a prize-winning show dog or thoroughbred racehorse, it may need to be valued and subsequently entered on the balance sheet. Similarly, it may be appropriate to enter these on the balance sheet for income-generating animals such as livestock.

      While the legal position is that pets are things that are allocated to one of the parties in a property settlement, this does not preclude parties from coming to an agreement for the pet to spend time with the other. This could also be negotiated through alternative dispute resolution.

      Chamberlains Law Firm can assist you with the legal questions anything about Family Law. Contact us!

      Maybe, but not necessarily. Family law is an area of law which affects many people, so it is commonplace for clients to have heard anecdotes from friends or family members about their family law property settlement. Every case turns on its own facts and some family law matters are more complicated than others. Property Orders, whether they are recorded in Consent Orders or made by a Judge, must be “just and equitable.”

      The steps in a family law property settlement are:

      1. Should the Court make an order altering the property interests of the parties?

      The High Court has made clear in the case of Stanford v Stanford[1], the bare fact of physical separation does not mean that it will be just and equitable for the Court to interfere with the parties’ property interests and make an Order. In that case, the Wife was an elderly woman who relocated to an aged care facility. Her children sought the sale of the former home to pay for her care costs. The Court held that it did not have jurisdiction to make an order dividing the property in those circumstances.

      Crucially, the Court does not have power to make an Order to alter the interests of parties in the property unless it is satisfied in all the circumstances of the case that it is just and equitable to do so. In other words, the court cannot make orders for property division unless, on the evidence before it, the orders are fair.


      2. Ascertain the matrimonial pool to be divided.

      The matrimonial pool is a term used by family lawyers to describe the assets, liabilities and superannuation interests of parties to a family law matter. For example:

      1. Assets
        • Real property (the matrimonial home, investment properties)
        • Businesses (including any assets and liabilities of the business)
        • Bank accounts
        • Shares or other investments
        • Motor vehicles, boats, planes
        • Household contents
        • Life insurance policies which can be cashed in
        • Sale proceeds
        • Leased property
        • Advances
      2. Liabilities
        • Home loan
        • Credit cards
        • Chattel mortgages (e.g. car loan/lease)
        • Personal loan
        • Guarantees if the debt has crystallised
        • Tax debts (e.g. Capital Gains Tax, Income Tax)
      3. Superannuation
        • Accumulation interests
        • Defined benefit
        • Self-managed super
          • What is the structure, who is the corporate trustee, any property owned by the Trustee

      Parties must undergo a process called financial disclosure. In fact, parties have an obligation to provide full and frank disclosure under rule 6.01 of the Family Law Rules. Once this process is complete and each party has had the opportunity to look at the other’s financial documents and is satisfied there is nothing remaining to be provided, a balance sheet can be drawn up. The correct figure to use in the balance sheet is the value at the date of the document not the value at the date of separation. If the parties do not agree on values, and this commonly happens with real property, unique or special vehicles and businesses, the property will have to be valued.


      3. Assessment of financial and non-financial contribution to the assets.

      The next step is to look at the various contributions each of party made at each stage of the relationship: the initial contributions when the parties started living together, during the relationship and post-separation.

      The types of contributions are:

      • Financial contributions to acquisition, conservation or improvement of property: for example savings applied to a deposit, income applied to a mortgage, income applied to household groceries and bills, any gifts, inheritances or redundancy payments received by either party
      • Non-financial contributions to acquisition, conservation or improvement of property: for example, undertaking improvements to property such as landscaping, repainting, household repairs and maintenance and renovations including project management, liaising with designers, architects and tradespeople.
      • Contributions by a party to the welfare of the family including homemaker parent: for example taking children to and from school and extracurricular activities, helping with homework, preparing meals for them, taking maternity/paternity leave to care for them, caring for them when they are sick, cleaning, laundry, gardening and other household tasks.

      The first two can be either direct (by the parties) or indirect (by relatives or friends of a party). However, for homemaker parent contributions, the contribution must be made by a party.

      We first look at the assets, liabilities and superannuation each of the parties brought into the relationship at the time of cohabitation. If initial contributions are disputed, evidence may be required such as copies of settlement adjustment sheets from conveyancing transactions, contracts for sale, rental ledgers, superannuation statements, cheque butts, bank statements. However, there is a principle that the significance of initial contributions diminishes over time. The longer the relationship, the less weight to be placed on the initial contribution.

      The court will look at how the parties handled their finances during the relationship including whether the incomes were pooled in a joint account or kept separate, whether property was purchased jointly and if so, how it was funded. The correct approach is to assess the myriad of contributions at all stages of the relationship.[2] There does not need to be a nexus between a certain asset and a contribution of a party.[3] For example, if party A brings an investment property into the relationship but party B makes significant contributions as homemaker parent and applies their income towards household groceries and mortgage repayments towards the family home, it is not correct to say that the investment property should be quarantined for party A. A global assessment of all the contributions party A and party B made is required.


      4. Future needs

      Under the Family Law Act,[4] a party who has future needs may be entitled to an adjustment. For example, some relevant factors are:

      • Age & state of health of the parties;
      • Income, property and financial resources of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
      • Whether either party has care or control of child of the relationship under 18 years of age;
      • Commitments of each party necessary to support themselves and a child or other person they have a duty to maintain;
      • Responsibilities of either party to support any other person
      • The duration of relationship and extent to which it has affected earning capacity
      • The need to protect a party wishing to continue in their role as parent
      • If a party is cohabitating with another person, the financial circumstances of the cohabitation.
      • Any child support a party has provided/is to provide/might be liable to provide for a child of marriage

      If the asset pool is small, the future needs adjustment should be higher.


      Conclusion

      The application of these principles to the facts of each property matter can result in vastly different outcomes and different minds can draw different conclusions. Negotiations between spouse parties can often add another complicating factor. If an agreement is reached which is not just and equitable in all the circumstances of the case and submitted to the Court in an Application for Consent Orders, the Registrar of the Family Court of Australia will not make the Orders.  It is important to understand the principles and see a lawyer experienced in family law so that the right questions can be asked and the correct strategy employed to reach a settlement which can be successfully recorded in Consent Orders.

      [1] [2012] FamCAFC 1
      [2] Jabour & Jabour [2019] FamCAFC 78 (10 May 2019)
      [3] Ibid.
      [4] Section 75(2) for married couples or Section 90SF(3) for de facto couples.

       

      Our family law experts at Chamberlains Law Firm can assist you with the legal questions arising out of your relationship.