The breakdown of a relationship has a significant effect on all members of the family. A point of significant contention involves the care of pets. With approximately 61% of Australians owning at least one pet, the dispute between parties for pet ownership can be a significant issue given the strong emotional attachment and affection towards the pet(s) in question.
As pets are often treated like children, should their future care to be determined in a manner akin to a parenting case? In the recent 2020 case of Davenport v Davenport, the Husband sought an order for ‘shared custody’, or shared parental responsibility, of the family dog. The Federal Circuit and Family Court of Australia upheld previous case law that established that a dog is regarded as property and cannot be dealt with like a child. Judge Tonkin also found that whilst Part VII of the Family Law Act deals with the arrangements of children, there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody of a pet”. Accordingly, Her Honour found that there was no power for the Court to make such an order and the Husband’s application was dismissed.
Despite a pet being a beloved member of one’s family, the Family Law Act (Cth) makes no provision for the ownership of pets following a separation. Courts consider pets as personal property. Accordingly, if a dispute arises surrounding the ‘custody’ or ownership of a pet, the Court will consider the application in the same way it determines a property settlement. Historically, Courts have been reluctant to determine who should keep a pet save in exceptional circumstances where there is significant monetary value attaching to the pets (pedigree pets) or they are income generating. Relevant considerations when determining orders in relation to pets include who purchased the pet and for what purpose, in whose name was it registered, who tended to and cared for the pet and who paid for its upkeep and maintenance.
In certain circumstances, when dealing with parenting orders in the best interest of the child, the Court may order that the pet accompany children so as to assist in transitioning between households and providing comfort and security. As with all other matters, the Court’s preference is for the parties come to an amicable arrangement between themselves. Parties can make their own informal arrangements either directly or via mediation. Increasingly, mediations are used by ‘pet parents’ to discuss and decide who the animal will live with, how much time they spend with each party and who will pay the associated costs. Parties can also undertake solicitor-based negotiations to then formally document agreements in a legally-binding manner via Consent Orders or a Binding Financial Agreement.
Vic Rajah Family Lawyers understands that pets are more than just property and represent a valued member of the family. Should you require any assistance regarding arrangements for pets arising from separation feel free to speak with one of our skilled lawyers.