Approximately 61% of households in Australia own pets, with dogs being the most common (40%), followed by cats (27%). It’s no wonder then, that pet disputes are not uncommon between separating parties. Common questions that we are asked as family lawyers include:
- Who gets to keep the family pet?
- Can I have visitation rights to our family pet?
- Is our pet treated more like an asset or a child?
- What factors determine who gets to keep the pet?
The Family Law courts have acknowledged the importance of pets, noting that they are living, sentient beings that give meaning to people’s lives. On one occasion, the court has even quoted conservationist and author Roger Caras in stating that pets “are not our whole life, but they make our lives whole”. Despite its empathy towards pets, the court has confirmed on multiple occasions that pets are ultimately chattels (personal property) and are not afforded the same rights as (human) children under the law.
In a 2020 case, a husband’s interim application for “shared custody” of a dog was dismissed as the Court held that it did not have jurisdiction to make orders for shared custody of a pet, given that it was not a (human) child. It has been separately remarked that given the strain the Family Law courts are already under, on a practical level, it is simply not feasible for the courts to deal with pets in a similar way it deals with children.
However, while obtaining “custody” orders for pets is not possible, the court still has jurisdiction to order that one party keep a family pet as property. In the case of Downey & Beale, the court has alluded to a number of considerations when deciding who should keep the pet (as property) including:
- In whose name is the pet registered?
- Who paid for the purchase of the pet?
- Who contributed to the maintenance and upkeep of the pet, including attending and paying for vet visits?
- Who did other tasks for the pet?
In the case of Jarvis & Weston the Court ordered that because the child was very much attached to the family dog, that the dog should go with the parent who had primary care of the child.
While none of the above factors are determinative, they may serve as guidance to the court when deciding who should keep the family pet.
Ultimately, for any family law matter, going to court should be the last resort. There are alternate ways to resolve a pet dispute, including negotiations and mediation. A “pet expert” can even be engaged to provide a report to help resolve the issue amicably.
Whether you have a dispute about property, parenting or pets, our expert family lawyers in Doncaster and the Eastern suburbs have the experience to guide you towards a resolution of your family law dispute. Contact us on 0421 397 316 or jlok@oikosfamilylaw.com.au for an obligation-free chat.
