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Are You Barking Mad? Pet Custody Disputes in Australia

Any “fur-baby” owner will know the loss that can be felt when you lose them. In some cases, this can become the main point of contention between some parties to a family law dispute. So, the question then becomes, how are pets dealt with in family law matters and what rights do you have?


The legal classification of pets


The first step is figure out how the law deals with pets.


There are two types of matters the Federal Circuit Court of Australia and Family Court can deal with in family law matters, parenting matters and property matters.


While it may not be some pet owner’s preferred label, the law does not recognise pets as children. Accordingly, pets are categorised as personal possessions and are dealt with in the same way as any other item of property owned by the parties.


Yes, we know… the label doesn’t exactly recognise a pet’s value or the fact that they are living creature with feelings of their own! But that’s just how it is here in Australia… at least for the time being.


Options to resolve and formalise custody of your fur babies


There are a lot of considerations when it comes to resolving custody of your fur baby. Let’s explore them a little.


Option One – Negotiation


You should always use your best endeavours to resolve your dispute by negotiating with your former spouse. You can do this by discussing things such as living arrangements for your pets and the financial responsibility and how you feel about the pet.


Sometimes negotiating directly with your spouse may not be a possibility. In these circumstances, you are able to negotiate between yourselves through the mediation process. The outcomes, however, is not legally enforceable and any retraction could lead to trouble.


Option Two – Consent Orders and Binding Financial Agreements


If you are able to reach an agreement with your spouse, you are at liberty to make an Application for Consent Orders or alternatively prepare a Binding Financial Agreement which provides for how your property pool will be distributed (including in relation to pets or how you will otherwise share responsibility for your pet).


Option Three – Making an Application for Property Orders


If you have exhausted your options and your former spouse refuses to make an arrangement with you, you can make an Application to the Court. This includes in relation to your pet.


Who gets to keep the “fur baby”?


When determining what Order to make in property disputes, the Court applies the same five (5) step process it is required to apply under the Family Law Act 1975 (Cth) (“the Act”) to all other assets and liabilities of the parties. That is: -


  1. Determine whether it is just and equitable to make an order in relation to the particular asset, liability or superannuation interest;

  2. Determine the value of the item;

  3. Assess the parties’ contributions towards the item;

  4. Assess the parties’ future needs; and

  5. Determine whether the outcome will be just and equitable in all the circumstances.


Given that the Court has a discretion to make such Orders as it may deem fit in relation to property interests, there have been some creative outcomes in family law regarding how pets are to be dealt with. For example, it is possible for parties to seek an order that is very similar to a parenting order, whereby the parties have the pet in their care alternating weekly and changeover at the local dog park or pet shop.


More recently the Court has also made arrangements whereby the family pets remained with the children and were to travel between residence at the same intervals as the children.


In another case, name Downey v Beale [2017] FCCA 316, the parties count not agree on the outcome for the family dog. Unlike most cases before the Court, neither party had any prescribed value for their dog. Justice Harman, however, came to the determination that the family pet had to be treated as a ‘chattel’ which was within the definition of property under the Act. Therefore, the Court cwas only required to determine what is ‘just and equitable’ rather than the ‘best interest’ principle (which is applied when dealing with children matters in the Court). Consequently, the husband claimed that he was the owner of the dog since he purchased him before the marriage and was registered as the owner.


In delivering his Judgment, Justice Harman found that s 75(2) factors under the Act may have relevancy if the dog was a guide dog, or some other kind of service annual, however, this did not apply in that case. His Honour went on to conclude that the husband’s claim could not succeed because he registered his name eight (8) months after separation and on the knowledge that the wife was asserting ownership. Further, the fact that the husband purchased the dog was considered only a contribution to the relationship and not evidence of ownership. Consequently, the wife received the dog as she was able to show evidence she provided for the health and well-being of the dog.


As a general rule of thumb, it is accepted that the Court will consider many different factors when making orders in relation to pets. These include, but are not limited to:


  1. (Which party the pet has resided with prior to, during and after separation;

  2. Which part the animal has a primary attachment to;

  3. Which party has been responsible for the financial expenses associated with the pet;

  4. Who is the registered owner of the pet (however, this factor is only considered if registration was conducted prior to separation and is not ‘self-serving’ as was determined in the case mentioned above).


Conclusion


We are just like you; we have pets of our own and we love them to bits! That’s precisely why we fight so hard to get you the best possible result.


If you are concerned about what will happen to your ‘fur baby’ after separation, or any other family law issue, contact us now to schedule an initial consultation with one of family lawyers to discuss how we can assist you resolve your dispute. Alternatively, book your appointment online.

Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.


© Richard Hoare & Co Solicitors

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