JRT RESCUE Posted February 3, 2014 Share Posted February 3, 2014 I have taken two dogs from a marriage breakdown and now the husband wants them but the wife doesn't want them to go to him because of his restraining orders etc and not safe for them. He is claiming ownership but she is on the microchip paperwork, need advice asap. Link to comment Share on other sites More sharing options...
Loving my Oldies Posted February 3, 2014 Share Posted February 3, 2014 (edited) There's a lawyer on DOL, JRT. Eschalter or something like that. Ed: eschlacter Edited February 3, 2014 by Danny's Darling Link to comment Share on other sites More sharing options...
~Anne~ Posted February 3, 2014 Share Posted February 3, 2014 (edited) The microchip paperwork does not prove ownership. In this case, I'd imagine they are part of the joint property that will be divided. He has as much right to them as she does and they both have more rights to them than your rescue. You might be putting yourself into a precarious position if you don't return them to him. Edited February 3, 2014 by ~Anne~ Link to comment Share on other sites More sharing options...
ozsomerset Posted February 3, 2014 Share Posted February 3, 2014 (edited) actually, the microchip paperwork ,here in nsw, does prove ownership. if the wifes name is on them then she makes the decision what to do with them. make sure you get proper "change of ownership" papers signed and might even be worthwhile to have a stat dec explaining the situation, make sure it is signed by a jp if you are only having the dogs for a "visit" still have some paperwork to show the owner has left them with you Edited February 3, 2014 by ozsomerset Link to comment Share on other sites More sharing options...
ozsomerset Posted February 3, 2014 Share Posted February 3, 2014 if you would like to contact me at work (tracey knows me) then i will give you the name of the lawyer we use, he is a good dog man Link to comment Share on other sites More sharing options...
~Anne~ Posted February 3, 2014 Share Posted February 3, 2014 (edited) actually, the microchip paperwork ,here in nsw, does prove ownership. if the wifes name is on them then she makes the decision what to do with them. Actually it doesn't, in NSW or anyone else for that matter. Only a court of law can determine the ownership. In divorces, the animals are considered property and as such no-one can dispose of the shared property until a court determines who will get what. I know from experience that the microchip paperwork itself doesn't NOT prove ownership. Microchip paperwork across the country states owners that haven't owned the dog for years. Edited February 3, 2014 by ~Anne~ Link to comment Share on other sites More sharing options...
~Anne~ Posted February 3, 2014 Share Posted February 3, 2014 (edited) Page 28. Pets and family law - who gets the dog in a divorce? https://www.lawsociety.com.au/cs/groups/public/documents/internetyounglawyers/420246.pdf Sorry, can't paste from my iPad properly and the document doesn't allow editing. The last paragraph also states: "As pets are property under Australian law, pursuant to the Family Law Act courts can order injunctions forcing a person to do or not to do something in relation to a pet. For example, if one spouse took away a pet from another spouse upon separation, an application could be made to the court for an injunction forcing the return of the pet...." Rescuers and those who work for Councils should know that microchip identification is for identification purposes. It does not constitute legal ownership of any animal. The microchip details may be used as evidence, but it does NOT solely constitute nor prove ownership. Edited February 3, 2014 by ~Anne~ Link to comment Share on other sites More sharing options...
ozsomerset Posted February 3, 2014 Share Posted February 3, 2014 COMPANION ANIMALS ACT 1998 - SECT 7 Meaning of “owner” 7 Meaning of “owner” (1) Each of the following persons is the "owner" of a companion animal for the purposes of this Act: (a) the owner of the animal (in the sense of being the owner of the animal as personal property), (b) the person by whom the animal is ordinarily kept, © the registered owner of the animal. (2) A reference in this Act to "the owner" of a companion animal is a reference to each and all owners of the animal. Note: A provision of this Act that makes the owner of a companion animal guilty of an offence makes each owner guilty of the offence. (5) When a companion animal is ordinarily kept by an employee on behalf of his or her employer, the animal is for the purposes of this Act taken to be ordinarily kept by the employer and not the employee. This subsection does not prevent an employee being the registered owner of an animal and does not prevent the employee being an owner if the employee is the registered owner. (6) In any prosecution of the owner of a companion animal for an offence against this Act it is a defence if the defendant establishes that: (a) another owner of the animal has been convicted of an offence arising out of the same circumstances, or the commission by another owner of the animal of an offence arising out of the same circumstances has been proved but a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of the offence, or (b) another owner of the animal has paid the amount of the penalty prescribed under section 92 (Penalty notices) for an alleged offence arising out of the same circumstances. "registered owner" of a companion animal means the person shown in the registration information entered on the Register as the registered owner of the animal (and in the case of joint registered owners means each of those joint registered owners). Link to comment Share on other sites More sharing options...
~Anne~ Posted February 3, 2014 Share Posted February 3, 2014 (edited) As someone who is supposed to work in the area of companion animals you have a poor understanding of the Act you work with and the law. You're throwing definitions at me from an Act. Jill is in a compromised situation if the husband decides to take it further. If you want to advise her otherwise, and she takes your advice then so be it. I would much rather take the advice of a trained professional in law though. I am also almost certain that Federal law overrides State law when there is a clash. Family Law is Federal I believe. The Companion Animals Act is a Local Government Act, which is at the bottom of the food chain of law I think you'll find. Edited February 3, 2014 by ~Anne~ Link to comment Share on other sites More sharing options...
JRT RESCUE Posted February 3, 2014 Author Share Posted February 3, 2014 Thanks for the information, not sure where to go now but this guy is not one that you would want the dogs to go back to, the wife has a restraining order against him for any contact, he is allowed to see the children only once a month under supervison, do I need to say more. She must have gone through the court to get all of this so will contact her and see if there was any mention of the dogs. Link to comment Share on other sites More sharing options...
~Anne~ Posted February 3, 2014 Share Posted February 3, 2014 I'd contact a lawyer who works in the field just for telephone advice. Has he contacted you directly or is he just harassing his ex? Does he know you have the dogs and who you are? Link to comment Share on other sites More sharing options...
JRT RESCUE Posted February 3, 2014 Author Share Posted February 3, 2014 He is contacting me through Facebook and located the dogs on my website. Have just spoken with the wife and and apparently they have been separated for over 4 years and he hasn't bothered with them before now, she is going to contact her solicitor for advice. He isn't allowed to contact her because of the order. Link to comment Share on other sites More sharing options...
Her Majesty Dogmad Posted February 3, 2014 Share Posted February 3, 2014 What a terrible situation, it sounds that this is just out of spite. I also believed that the microchip held the owner's details which is why we have to complete the Change of Ownership forms in NSW when our dogs are adopted. There is a great lawyer on here - dogslife - who has helped others. Jill - I can find out her no if you don't get a response from a pm, am not sure how often she visits the forums. Link to comment Share on other sites More sharing options...
~Anne~ Posted February 3, 2014 Share Posted February 3, 2014 That's sounds a little scary for you Jill. Good thinking by the wife. Her solicitor should be able to offer some ideas on how to proceed further. If the dogs have been with her for 4 years, and he hasn't had anything to do with them, that should help her case of ownership. Here is a clear example. Dogmad, while not a family law situation, I had a breeder try to claim ownership on a dog she had bred 8 years prior to it coming in to my care She had sold it as an 8 week old pup. The person she sold it to surrendered it to me. The breeder demanded I give the dog to her and said that as it was microchipped in her name still, she legally owned it. The real owner easily proved his rightful ownership of the dog through the sales reciept and vet bills incurred over the 8 years. The microchip paperwork in this case did not prove legal ownership. Legal ownership is determined by a range of things. Microchip paperwork may be used as evidence, but as I said, it is not proof of legal ownership on its own. Link to comment Share on other sites More sharing options...
~Anne~ Posted February 3, 2014 Share Posted February 3, 2014 (edited) A scenario for you all: You rescue a 12 month old dog. The microchip is transferred to your name. 6 months later you re home the dog and complete the transfer details. The chip database for some reason never is updated and the dogs ownership details remain in your name. 6 years later the dog is found wandering and attacks and kills a little dog being walked by an older lady. Are you responsible for this dog? Are you the legal owner of this dog? The chip is in your name. Should the old lady claim compensation for the loss of her dog from you? Should the Council fine you for allowing a dog, that is not under anyones control, and has attacked and killed another dog? Edited February 3, 2014 by ~Anne~ Link to comment Share on other sites More sharing options...
_PL_ Posted February 3, 2014 Share Posted February 3, 2014 I agree with Anne. The chip does absolutely nothing at all. Nor does 'registration' as the owner. The circular path goes something like this: dog is gone -- chipped owner goes to council -- dog cannot be seized because there's no police report--- police won't do a stolen property report and tell you to take it civil --- wait years for a resolution in civil court or hire a lawyer --- dog is made to 'disappear' in the meantime -- dog is gone--- In the end, unless an owner (or breeder or rescuer) has thousands of dollars to get a dog back their only choice is to walk up and take the dog. I've no idea why the CA Act states what it does because when it comes to the crunch, it cannot force someone to let go of a dog. FYI rescue: This goes for foster carers who do a runner and adopters who bounce a cheque. Litters born in care etc Link to comment Share on other sites More sharing options...
pepe001 Posted February 4, 2014 Share Posted February 4, 2014 The critical factor is if they did a settlement yet. If not they belong to both. But after 4 years and no contact I expect a magistrate will award them to their carer. If a settlement has been completed they belong to the current carer. But looking at if from another angle if I broke up and decided it was best to leave our dogs with my ex. Then a few years later I found out she gave them to a rescue group or abandoned them, I would fight tooth and nail to get them back. Link to comment Share on other sites More sharing options...
JRT RESCUE Posted February 4, 2014 Author Share Posted February 4, 2014 This should clear it up as this is a clause in the property settlement 3. f) Each party shall be solely entitled to the exclusion of the other to all property in possession of such party as at this date (20/10/2011) including any jewellery, furniture, furnishings, shares and motor vehicles they were in her possession and have been since and has all the vet certificate of all work that she has had done since 2007 at least. Link to comment Share on other sites More sharing options...
pepe001 Posted February 4, 2014 Share Posted February 4, 2014 With a property settlement done they are clearly hers. Link to comment Share on other sites More sharing options...
~Anne~ Posted February 4, 2014 Share Posted February 4, 2014 Great news. Now, how do you rid him from harassing you? I hope he fades away pretty quickly for you. Link to comment Share on other sites More sharing options...
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