By James Marmin
A relationship breakdown can be an extremely stressful and emotional time for all parties involved. A pet is often referred to as a member of the family and for many people, the bond they share with their pets can be compared to that of children or siblings. Therefore, the issue of who is able to retain the family pet can exacerbate the emotions felt by each party. This article will discuss the approach the Court has taken with respect to assisting parties in dispute about who gets to keep the family pet.
How can caring for the pet be settled?
The best option will be to attempt to settle the matter amicably through dispute resolution or negotiation, before formalising this agreement with consent orders. If you can reach an agreement with the other party with respect to the property/parenting matters and this includes an agreement for the pet, our Family Lawyers at MDL can assist you in drafting your Consent Orders for filing with the court to formalise this agreement. Generally, an agreement may be able to be reached if the parties have children and the family pet was bought for their benefit, as it may be practical that the pet live in the same household as the children following separation.
If the parties are unable to reach agreement, they may wish to apply to the court for assistance to determine who is able to retain the family pet. However, the way in which a court can make orders with respect to pets is not straight forward. The Court will see the pet as a chattel, or as personal property, and ownership would need to be addressed through property settlement negotiations. This means the Court needs to consider the pet in the same way that it would consider household furniture.
What does the court say?
There are no specific provisions in the Family Law Act 1975 which specifically deals with pets. A recent case has declared that there is no jurisdiction under the Family Law Act to make an order for custody or ‘shared custody’ of a dog. Rather, the dog needs to be handled as part of the property settlement. Therefore, the Court would need to look to previous cases and other factors to decide who owns the pet and who is entitled to retain the pet. The court could consider factors such as:
• Which party paid for the pet;
• Which party the pet is registered too;
• Which of the parties cared for the pet;
• Which party was responsible for the ongoing costs (vet fees, cost of food etc);
Davenport & Davenport (No. 2) [2020]
In this decision, the major consideration of the Court was if it had the power to make orders relating to the “custody” of a dog. The Court concluded that the dog was indeed property and had to be considered as such. Therefore, the Court was unable to make an order for ‘custody’ of the dog in the same way it could not make “custody” orders for property. Therefore, this case sets the standard for future matters where a party requests that the Court make orders for custody of a pet, showing that the Court does in fact not have the jurisdiction to do so.
Downey v Bale [2017]
In this matter, the Wife sought to retain custody of the dog. The ‘owner’ of the dog was an issue in dispute between the parties with both parties believing they should retain the dog. In this case, the Court found that the wife was the owner of the dog. Although the husband purchased the dog, the Wife had cared for and was responsible for the dog and therefore, it was found that the pet should be retained by her. It was immaterial that the husband made additional contributions to the dog’s registration after the property settlement matter had commenced. The Court concluded that this did not support the Father’s argument that he was the owner and rather this was just considered as a contribution in the scheme of the property settlement.
Generally
As the case law shows, there is no clear power for the Court to make orders with respect to pets and the approach the Court takes to deciding who can retain the pet is in no way similar to that of the custody of children. As stated, the Court must consider the pet in the same way it would household furniture when establishing ownership. There is currently no ‘best interest’ approach to the care of a family pet, which is the main consideration when the Court is making orders for the custody of children. Therefore, the outcome that the Court may reach with respect to who is the ‘owner’ of the dog may be potentially difficult to predict.
How can MDL help?
As discussed above, due to the limited powers that the Court has in considering interests of the pet and other factors, amicable negotiation between the parties will often yield the best results when dealing with the family pet. Our experienced Family Law lawyers at MDL can assist you in all stages of negotiations, including constructing offers to settle and attending at dispute resolution, to ensure you have the best chance at a favourable outcome without Court intervention. If you have been unsuccessful in negotiating with your former partner and have concerns about the living arrangements for your pets, or any other aspect of family law, reach out to one of our family lawyers for advice on your next steps today.
