pet custody after break up

Pet Custody Laws in Australia

Pet Custody Laws in Australia

Pet custody cases are rare in the family law courts following a break-up – most of the time lawyers warn their clients not to push the point on the issue of with whom the pet will live. Judges, with backlogs of cases and overflowing duty lists, are generally as pleased about dealing with pet cases as they are with dealing with arguments about furniture and chattels. However, to some clients, the ownership of the family pet will be as important, if not more so, than any other aspect of their property settlement.

How to determine pet ownership

Whilst parties may think of their pet as a quasi-child, the Family Law Act s 60CC factors do not apply. Rather the case law indicates that the appropriate approach is via the property settlement principles in s 79.  You may not see your pet as “property” but more as a family member but this is how the law pans out when there is a dispute over pets.

Most states have a Companion Animals Act or equivalent, which provides for a time limit in which companion animals must be registered after ownership. If a pet has been registered under the state legislation, a party may be seeking an order that the registration of the animal be transferred to the other party.

Cases on pet custody

If there has been no registration of the pet, one party may be seeking a declaration pursuant to s 78 as to the ownership of the pet, or an alteration of the property interest of the parties under s 79(4). The ownership of a pet may be relevant when there is a child of the relationship, such as in the case of Jarvis & Weston [2007] FamCA 1339 (1 November 2007), in which the court ultimately ordered that the dog was to travel with the child between the parents’ homes, saying: “The boy is attached to the dog. The dog is to go with the boy”.

One of the most recent cases on the issue is that of Downey & Beale [2017] FCCA 316 (2 February 2017). The dog was purchased by the husband during the marriage, the wife said as a gift for her, was living with the wife post separation, had vet bills which were paid for by the wife (the bills also referred to the wife as “owner”) and the wife sought an order that the husband transfer the registration. Post separation, and after he had received the wife’s affidavit asserting ownership of the dog, the husband registered the dog in his name.

Despite registration being in the husband’s name, ultimately the wife was successful, with the court finding that it wasn’t appropriate to make an order varying the ownership of the dog. The court declared the wife owner of the dog pursuant to s 78, and ordered that the husband transfer ownership to the wife.

In the recent case of Gaynor & Tseh [2018] FamCA 164 the applicant first ‘met’ the dog before the respondent however the judge noted that the animal had been in the care of the respondent for some time, and as both parties had an emotional connection to the animal there was no need to remove it from its current living conditions or for the court to ‘intervene to protect property.’

In cases where there are children and the child has an attachment to the dog, arguably these cases are easier as the court can determine that the dog living with the child is in the best interests of the child.

Childless couples with a pet

But what does this recent case mean if you have childless clients disputing ownership of a dog? The case law gives some guidance as to factors the court will take into consideration:

  1. Look to registration, which gives some guidance but is not determinative of ownership;
  2. Consider who purchased the animal and for what purpose;
  3. Ascertain who was responsible for the care and day to day cost for the animal; and
  4. Evaluate the post separation arrangements for the animal. Whilst most clients may be able to come to an agreement in relation to the care of their much beloved pets, for those who cannot they can be assured that the court can and will make orders when necessary.

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